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Madhya Pradesh High Court · body

2010 DIGILAW 91 (MP)

K. P. DUBEY v. STATE OF M. P

2010-01-21

P.K.JAISWAL

body2010
Judgment P.K.Jaiswal, J. ( 1. ) With the consent of learned counsel for the parties, the matter is heard finally and disposed of by this order. The petitioner is Assistant Engineer (Field), Narmada Development Division No.1, Dindori. He is holding the said post w.e.f. 2nd March, 2008. Prior to the said posting, he was working as Sub Divisional Officer, Rani Awanti Bai Lodhi Sagar Pariyojna, Katanga Colony Sub Division, Bargi Hills, Jabalpur. On 14.2.2008 he was posted in the office of Chief Engineer and the additional charge of Sub Divisional Officer was directed to be handed over to Shri P.K. Khare. On 2nd March, 2008, the petitioner was transferred as Assistant Engineer (Field), Narmada Development Division No. 1, Dindori and the charge of Sub Divisional is directed to be handed over to one Shri R.S. Thakur, Assistant Engineer, Circle Office Narsinghpur. On 29.11.2008 he has been placed under suspension on account of making irregularities in maintenance and construction work of Government accommodation. The petitioner challenges the said suspension order dated 29.11.2008 whereby the Commissioner (Administration) Narmada Valley Development Authority, Bhopal has placed him under suspension and thereafter the respondent No. 1 has issued him the charge sheet on 3.1.2009 (Annexure AR- 2). The allegation against the petitioner is that without verifying measurement books of the Contractor and without proper measurement paid the amount to the Contractor. ( 2. ) Shri A.K. Pathak, learned counsel for the petitioner challenges the impugned order of suspension on the ground that he was engaged in Assembly election by order dated 27.10.2008 (Annexure P/8) and was appointed as Presiding Officer at Polling Centre No.81 at Mohni Mal, Primary School, Mohni (Shahpura) of 103- Shahpura Vidhan Sabha. The petitioner was directed to undergo training. After completion of training of first phase, second phase and third phase, he was appointed as Presiding Officer of Polling Booth No.81 vide order dated 25.11.2008 (Annexure P/9) and was on election duty till the result was declared on 9.12.2008. The petitioner was directed to undergo training. After completion of training of first phase, second phase and third phase, he was appointed as Presiding Officer of Polling Booth No.81 vide order dated 25.11.2008 (Annexure P/9) and was on election duty till the result was declared on 9.12.2008. During those period, he was on deputation to the Election Commission from the date of notification calling for assembly election and ending with the date of declaration of the result of such election and during those period his disciplinary authority was Election Commission and the said authority is empowered to take disciplinary action against the petitioner during the period of election and on 29.11.2008 the respondent No.2 was not his disciplinary authority to take disciplinary action as the the same was vested only with the Election Commission during the election. In support of the said contention, he drew my attention to the Division Bench decision in the case of Umesh Singh Yadav Vs. Collector/ District Returning Officer, Balaghat and others, 1992 MPLJ 173 . Thus the sole contention on behalf of the petitioner is that the respondent No.2 has no authority to pass the order of suspension. ( 3. ) On the other hand, Shri Samdarshi Tiwari, learned Government Advocate contended that the suspension order was passed after assembly polling and at that time the petitioner was not engaged in any election duty, the impugned order is legal and proper. He further submitted that the petitioner was placed under suspension on account of dereliction from duties, several irregularities in supervising construction work being carried out under his supervision in contemplation with departmental enquiry and departmental enquiry was proposed against him and, therefore, his headquarter was changed to the office of Superintending Engineer, Narmada Valley Circle No.10 Badwani vide impugned order dated 29.11.2008 and the mandate of Section 28-A of the Act does not operate upon the disciplinary action being taken by the competent authority or upon changing of headquarter of delinquent employee against whom departmental enquiry is proposed. He lastly urged that the model code of conduct operates only upon transfer of all officers/ officials connected with the conduct of elections and prayed for dismissal of the writ petition. ( 4. ) I have heard learned counsel for the parties and perused the record of the case. ( 5. He lastly urged that the model code of conduct operates only upon transfer of all officers/ officials connected with the conduct of elections and prayed for dismissal of the writ petition. ( 4. ) I have heard learned counsel for the parties and perused the record of the case. ( 5. ) Section 28-A of the Act, 1951 as introduced by Amendment Act No.1/ 1989, with effect from 15.3.1989 reads as under : "28. A Returning officer, presiding officer, etc., deemed to be on deputation to Election Commission. The returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to control, superintendence and discipline of the Election Commission." ( 6. ) From the perusal of the aforesaid provision, it is clear that the authority to take disciplinary action is vested only with the Election Commission during the period of election. Section 28-A clearly demonstrates that any person appointed to conduct election shall be on deputation to the Election Commission for the period commencing on and from the date of notification calling for such election and ending with the date of declaration of results. During that period, the officer shall be subject to control, superintendence and discipline of the Election Commission. ( 7. ) The contention of learned Government Advocate cannot be accepted that during those period no transfer can be made by the respondent No.l and 2 but disciplinary authority is fully competent to take disciplinary action against the delinquent employee. The respondent No.l and 2 could have approached the Election Commission for taking suitable action against the petitioner under Section 28-A of the Act of 1951. ( 8. ) On the date of suspension, the petitioner was on deputation to the Election Commission of India by virtue of duties assigned to him. The respondent No.l and 2 could have approached the Election Commission for taking suitable action against the petitioner under Section 28-A of the Act of 1951. ( 8. ) On the date of suspension, the petitioner was on deputation to the Election Commission of India by virtue of duties assigned to him. The impugned order of suspension passed by the respondent No.2 is in violation to the provisions of Section 28-A of the Act of 1951 when the petitioner was deemed to be on deputation with the Election Commission of India with effect from 27.10.2008 to 9.12.2008 and the suspension of the petitioner by the Commissioner (Admn) during this period is not permissible. ( 9. ) For these reasons and in view of the law laid down by the Division Bench of this Court in the case of Umesh Singh Yadav Vs. Collector/ District Returning Officer, Balaghat and others (supra), the impugned order of suspension dated 29.11.2008 is not sustainable in the eyes of law. ( 10. ) The election period is now over and the deemed deputation of the petitioner under Section 28-A of the Act has, therefore, also ended. The respondents are at liberty to take appropriate steps in the matter under the provisions of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. ( 11. ) In the result, the writ petition is allowed. The impugned order dated 29.11.2008 is quashed. No costs.