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2012 DIGILAW 960 (PAT)

Shyam Sunder Pandey v. State Election Commission

2012-07-13

V.N.SINHA

body2012
JUDGMENT Petitioner is the Mukhiya of Sri Kishun Gram Panchayat within Kajara P.S. in the district of Lakhisarai. He has filed this writ petition questioning the validity of order dated 19.04.2012 passed by the State Election Commission(hereinafter referred to as the Commission) in Case No.114/2011, Annexure-8 whereunder the Commission having considered the complaint of respondent no.5 held that petitioner being the Recovery Agent of Bihar Regional Bank, Kajara is in service of the Bank and disqualified from being elected as Mukhiya of Sri Kishun Gram Panchayat under Sub-Section-(1)(c) of Section 136 of the Bihar Panchayat Raj Act, 2006(hereinafter referred to as the Act) and having held so disqualified the petitioner from holding the post of Mukhiya of the said Gram Panchayat under Sub-Section-(2) of Section 136 of the Act. 2. Learned counsel for the petitioner assailed the order dated 19.4.2012, Annexure-8 and submitted that petitioner being the Recovery Agent of Bihar Regional Bank, Kajara is not in the service of the Bank and he should not have been disqualified under the impugned order. In this connection, he also pointed out that from perusal of report of the Block Development Officer, Surjgarha dated 8.12.2011, Annexure-4, itself it would appear that petitioner is not a regular servant of the Bihar Regional Bank, Kajra his entitlement is only for payment of commission, which also did not accrue to him during the financial year 2010-11 as petitioner did not assist the Bank in recovery of the loan amount due from the various loanees of the Bank during the year 2010-11. Learned counsel for the petitioner further submitted that finding recorded in the impugned order that petitioner while discharging the duties of the Recovery Agent of the Bank is likely to misuse his position for recovery of the loan from defaulting borrowers of the Bank is nothing but conjecture on the part of respondent Election Commissioner as there is no material placed on record that petitioner ever misused his position as Recovery Agent while making recovery of the loan due to the Bank from the borrowers who are in default. Learned counsel for the petitioner also submitted that in case petitioner is found misusing his position as Mukhiya while effecting recovery of the bad debts for the Bank he can always be removed by the State Government under Section 18 of the Act but only on the basis of conjecture that petitioner being Recovery Agent of the Bank is likely to misuse his position he cannot be disqualified holding him to be in the service of the Bank. 3. In support of the aforesaid plea learned counsel for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court in the case of Abdul Shakur Vs. Rikhab Chand and another, reported in AIR 1958 Supreme Court 52, paragraph-12. Abdur Shakur was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer. His election to the Council of States was set aside by the Election Tribunal holding that Abdul Shakur being Manager of Durgah Khwaja Sahib appointed by the Committee constituted by the Central Government, held office of profit under the Central Government his nomination paper should have been rejected. Aforesaid finding of the Tribunal was repelled by the Hon’ble Supreme Court observing that merely because the Committee or the members of the Committee which appointed Abdul Shakur as Manager of Durgah are removable by the Government of India and the Committee can make bye-laws prescribing the duties and powers of the employees of the Durgah cannot convert the servants of the Durgah into holders of office of profit under the Government of India. 4. Learned counsel for the petitioner also relied on the judgment of the Hon’ble Supreme Court in the case of Pradyut Bordoloi Vs. Swapan Roy, reported in (2001) 2 SCC 19 , paragraph-5, 6 and submitted that the Hon’ble Supreme Court in paragraph-6 of the said judgment has laid down the tests for finding out whether the office in question is an office of profit under a Government. These tests are (1) whether the Government makes the appointment ; (2) whether the Government has the right to remove or dismiss the holder ; (3) whether the Government pays remuneration ; (4) what are the functions of the holder ? Does he perform them for the Government; and (5) does the Government exercise any control over performance of those functions ? Does he perform them for the Government; and (5) does the Government exercise any control over performance of those functions ? Having laid down the aforesaid tests the Hon’ble Supreme Court observed in paragraph-14 of the said judgment that the first and foremost question to be asked is : whether the Government has power to appoint and remove the person on and from the office ? If the answer is in the negative, no further inquiry is called for, the basic determinative test having failed. If the answer be a positive one, further probe has to go on finding answers to questions framed in Shivamurthi case ((1971) 3 Supreme Court Cases 870) searching for how many of the factors pointed out in the case of Guru Gobinda Basu case(AIR 1964 Supreme Court 254) exist. The totality of the facts and circumstances reviewed in the light of the provisions of relevant Act, if any, would lead to an inference being drawn if the office held is under the Government. The inquisitive overview-eye would finally query : On account of holding of such office would the Government be in a position to so influence him as to interfere with his independence in functioning as a Member of Legislative Assembly and/or would his holding of the two offices- one under the Government and the other being a Member of Legislative Assembly, involve a conflict of interests inter se ? This is how the issue has to be approached and resolved. 5. Learned counsel for the petitioner next relied upon the judgment of the Hon’ble Supreme Court in the case of Mahavir Singh Vs. Khiali Ram and Ors., reported in (2009) 3 Supreme Court Cases 439, paragraphs-9, 10 whereunder the Hon’ble Supreme Court having considered the definition of Lambardar as defined in Advanced Law Lexicon, 3rd Edition, 2005 held that although the position of Lambardar is governed by the provisions of the Punjab Land Revenue Act and the Rules framed thereunder, holder of the said post is not a government servant but he does not hold a civil post within the meaning of Article 309 of the Constitution of India, though he is paid a sum of Rs.500/- as a fixed sum but his main income is the amount of commission, which he receives out of the amount of revenue collected. 6. 6. Learned counsel for the Commission and the private respondent opposed the submission with reference to the findings recorded by the Commission in paragraphs-7, 8, 9 of the impugned order and submitted that petitioner being a Recovery Agent of the Bank was disqualified to contest the election but suppressing such information he filed nomination paper and contested the impugned election but being in service of the Bank has been rightly disqualified by the Commission and this Court should not interfere in the matter as he is likely to misuse his position for recovery of legal/illegal loan granted by the Bank. From perusal of the provisions of the Act, it appears that for not furnishing the required information in the nomination paper petitioner can be prosecuted under Section 125-A(3) of the Act but for failure to furnish the required information in the nomination paper he cannot be disqualified under Sub-Section-(2) of Section 136 of the Act after he has been elected. Any elected panchayat member, however, can be disqualified by the Commission under Sub-Section-(2) of Section 136 of the Act on the grounds of disqualification mentioned under Section 135 and Sub-Section-(1) of Section 136 of the Act. In the instant case, petitioner has been disqualified with reference to the ground of disqualification mentioned in Sub-Section-(1)(c) of Section 136 of the Act, which is extracted hereinbelow for ready reference :- “136. Disqualification for Membership-(1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhiya, member of the Gram Panchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person- (a) ---------------- (b) ---------------- (c) is in the service of Central or State Government or any local authority ; (d) is in service of any such institution receiving aid from Central or State Government or any local authority ;” 7. From perusal of the impugned order, it appears that the Commission found the petitioner Recovery Agent of Bihar Regional Bank, Kajara to be in service of the said Bank, which is established under the Act of Parliament i.e. Regional Rural Bank Act, 1976(hereinafter referred to as the R.R.B. Act). From perusal of the impugned order, it appears that the Commission found the petitioner Recovery Agent of Bihar Regional Bank, Kajara to be in service of the said Bank, which is established under the Act of Parliament i.e. Regional Rural Bank Act, 1976(hereinafter referred to as the R.R.B. Act). It appears from perusal of R.R.B. Act that Regional Rural Bank is a body corporate with perpetual seal and succession acting within the four corners of the R.R.B. Act in which Central, State Government and the sponsor Bank has share capital, as such, there is no difficulty in concluding that the Bihar Regional Bank, Kajara has been established under the Act of Parliament after receiving fund from the Central, State Government and sponsor Bank. The question, however, sill required to be answered is as to whether petitioner Recovery Agent of Bihar Regional Bank, Kajara is in service of the said Bank and disqualified under Sub-Section-(1)(c) of Section 136 of the Act from being elected as Mukhiya of Gram Panchayat constituted under the Act. 8. In order to enable this Court to answer the aforesaid question in affirmative, learned counsel for the Commission and the Private Respondent relied upon the judgment of the Hon’ble Supreme Court in the case of Dharmarth Trust, Jammu and Kashmir, Jammu and others Vs. Dinesh Chander Nanda, reported in (2010) 10 Supreme Court Cases 331 and in the case of Zelia M. Xavier Fernandes E. Gonsalves Vs. Joana Rodrigues and others, reported in (2012) 3 Supreme Court Cases 188 paragraphs-17, 21. In the case of Dharmarth Trust (supra) Hon’ble Supreme Court decided that the suit filed by Architect of the Trust for payment of his fees shall be governed by Article 119 of the schedule to the Jammu & Kashmir Limitation Act, 1995 and not by Article 56 of the said Limitation Act. In the case of Zelia M. Xavier Fernandes E. Gonsalves(supra) the appellant was declared elected from ward no.9 of Raia Village Panchayat in May, 2007 for the period 2007-2012. On or about 18.3.2008 Raia Panchayat invited bids for collection of market fee for the year 2008-09. Respondent no.1 Xavier Fernandes husband of the appellant before the Supreme Court and one Bernard Mario Fernandes submitted their bids. On 28.3.2008, the tender forms were opened and the bid of the appellant’s husband being highest was accepted. On or about 18.3.2008 Raia Panchayat invited bids for collection of market fee for the year 2008-09. Respondent no.1 Xavier Fernandes husband of the appellant before the Supreme Court and one Bernard Mario Fernandes submitted their bids. On 28.3.2008, the tender forms were opened and the bid of the appellant’s husband being highest was accepted. On 31.3.2008 respondent no.1 represented before the Deputy Director of Panchayat bringing to his notice that the appellant was liable for disqualification under Section 10(f) of the Goa Panchayat Raj Act, 1994(hereinafter referred to as the Goa Act), which provides for disqualification for member of the Panchayat, if the person has direct or indirect share or monetary interest in any work done by or to the Panchayat. Relying on the said provision the appellant was disqualified on the ground that appellant had indirect share or monetary interest in the contract executed by the Village Panchayat with her husband for collection of market fee. The order disqualifying the elected member was passed on the ground that appellant had indirect interest in the contract executed by and between the Panchayat and her husband for collection of market fee. The Hon’ble Supreme Court while affirming the disqualification held that the purpose and the object of prescribing several disqualifications in the provision for disqualification is to ensure purity of administration of the Municipal/Panchayat Committee and in that sense the different clauses of disqualifications should not receive unduly narrow or restricted construction. Learned counsel for the respondents also relied on the judgment of this Court in the case of Geeta Gupta Vs. The State of Bihar & Ors., reported in 2012(2) PLJR 285 and submitted that this Court following the judgment rendered in the case of Geeta Gupta should dismiss the writ petition as Geeta Gupta who was Asha worker but was elected Mukhiya after her resignation was accepted by the Incharge Medical Officer who was not competent to accept the resignation, State Election Commissioner having noticed the said fact held that Geeta Gupta continued as Asha worker a Government employee was disqualified from contesting and becoming Mukhiya. 9. Reliance placed by the learned counsel for the respondents on the aforesaid judgment(s) of the Hon’ble Supreme Court and the High Court, in my opinion, is wholly misplaced. 9. Reliance placed by the learned counsel for the respondents on the aforesaid judgment(s) of the Hon’ble Supreme Court and the High Court, in my opinion, is wholly misplaced. In the case of Dharmarth Trust (supra) Hon’ble Supreme Court decided that in a suit filed by a professional Architect for payment of his fees Article 119 of the Jammu & Kashmir Limitation Act will apply, as such, the said decision has no relevance at all to the point in issue involved in the instant case. The other judgment in the case of Zelia M. Xavier Fernandes E. Gonsalves(supra) shall also have no application to the case in hand, as in the said case Supreme Court having considered Section 10(f) of the Goa Act concluded that the appellant of the said case who was elected from ward no.9 of Raia Village Panchayat had indirect share or monetary interest in the contract executed by the Village Panchayat with the husband of the appellant for collection of market fee. The judgment of this Court in the case of Geeta Gupta(supra) shall also have no bearing on the facts of the present case, as Geeta Gupta was an Asha worker of the Government appointed on contract basis, her resignation was accepted by the Incharge Medical Officer who was not competent to accept the resignation, the State Election Commissioner having noticed the said fact concluded that Geeta Gupta continued as Asha Worker throughout and was disqualified from contesting and becoming Mukhiya. 10. Petitioner being a Recovery Agent of the Bank is serving the Bank to recover the loan amount from the defaulter loanees but in my opinion, petitioner is not in service of the Bank. He is a service provider like any other service provider. Service providers are not in service of the Principal. In this connection, I may refer to the judgment of the Hon’ble Supreme Court in the case of Raja Bahadur K.C. Deo Bhanj Vs. Raghunath Misra and others, reported in AIR 1959 Supreme Court 589. Raja Bahadur K.C. Deo Bhanj and Raghunath Misra were, amongst others, candidates for election to the Orissa Legislative Assembly. The appellant obtained 17700 votes, respondent No.1 15,568 votes and respondent No.3 3,589 votes. Respondent No.1 filed an election petition questioning on various grounds, the election of the appellant. The Election Tribunal dismissed the petition holding that no grounds had been established to invalidate the election. The appellant obtained 17700 votes, respondent No.1 15,568 votes and respondent No.3 3,589 votes. Respondent No.1 filed an election petition questioning on various grounds, the election of the appellant. The Election Tribunal dismissed the petition holding that no grounds had been established to invalidate the election. Respondent No.1 appealed to the High Court of Orissa against the order of the Election Tribunal. One of the grounds, amongst the many grounds taken by respondent No.1 to invalidate the election of the appellant was that the nomination of respondent No.3 was improperly accepted as he was disqualified from contesting the election being a Sarbarakar of the 10 villages in the district of Nayagarh mentioned in the schedule to the petition. The High Court held that the office of Sarbarakar was an office of profit under the State Government of Orissa. Respondent No.3 was accordingly disqualified from being a member of the Assembly but acceptance of the nomination of respondent No.3 had not materially affected the election of the returned candidate. Three other grounds were also urged before the High court in support of the contention that the appellant had been guilty of corrupt practice. One was that of bribery ; the second was that the appellant and his agents had published a pamphlet containing statements which were false which he knew or believed to be false in relation to the personal character and conduct of respondent No.1. The third ground raised was obtaining and procuring by appellant assistance for the furtherance of his election prospect from Sarpanches of certain Gram Panchayats. With reference to the third ground the High Court was of the opinion that a Sarpanch of the Gram Panchayat, though not a Government servant appointed by the Government, was none the less a person in the service of the Government as he performed many of the governmental duties and was also removable by the Government and as the appellant solicited the assistance of Sarpanches for the furtherance of his election prospect he was disqualified. The High Court allowed the appeal and set aside the election of the appellants. In appeal the Hon’ble Supreme Court framed the question whether a Sarpanch of the Gram Panchayat constituted under the Orissa Act is the person in the service of the Government or the State of Orissa. The High Court allowed the appeal and set aside the election of the appellants. In appeal the Hon’ble Supreme Court framed the question whether a Sarpanch of the Gram Panchayat constituted under the Orissa Act is the person in the service of the Government or the State of Orissa. While considering the said question the Hon’ble Supreme Court having considered the provisions of Orissa Act held that Gram Panchayat is a body corporate having perpetual succession and a common seal with power to hold, acquire and transfer property and to enter into contract and to do all other things necessary for the purpose of carrying out the provisions of Orissa Act and to sue and be sued in its corporate name. The Hon’ble Supreme Court while considering the said question further observed that there is distinction between serving under the Government and in the service of the Government, because while one may serve under a Government one may not necessarily be in the service of the Government ; under the latter expression i.e. in the service of the Government one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant. There are two essentials to this relationship : (1) The servant must be under the duty of rendering personal services to the master or to others in his behalf and (2) The master must have the right to control the servant’s work either personally or by another servant. It is this right of control or interference of being entitled to tell the servant when to work(within the hours of service) or when not to work and what work to do and how to do it(within the terms of such service), which is the dominant characteristics in this relation and marks off the servant from an independent contractor or from one employed merely to give to his employer the fruits or results of his labour. In the latter case the contractor or performer is not under his employer’s control in doing the work or affecting the service he has to shape and manage his work so as to give the result he has contracted to effect. Consequently, a jobbing gardener is no more the servant of the person employing him than the doctor employed by a local authority to act as a visiting physician to its hospital. Consequently, a jobbing gardener is no more the servant of the person employing him than the doctor employed by a local authority to act as a visiting physician to its hospital. None of the provisions of the R.R.B. Act suggest that as between the Bihar Regional Bank, Kajara and its Recovery Agent any relationship of master and servant exists. It is true that the Bank appoints Recovery Agent but remuneration payable to them is by way of commission on the amount which is recovered with their assistance. Bank does not exercise any control over performance of the duties by the Recovery Agent. In case, Recovery Agent assist the Bank in recovery of the bad debts from the defaulters he will earn commission otherwise not. There is no compulsion on the Recovery Agent that he must assist the Bank in recovery of bad debts from the defaulters. Recovery Agent is at will to assist or not to assist the Bank in recovery of the loan amount from the defaulting borrowers as the Bank is having no control over the affairs of the Recovery Agent who act as per his own volition and are paid commission only for the amount recovered with the assistance of the Recovery Agent. In my view, the Recovery Agent of the Bank is not in service of the Bank and the answer to the question posed in paragraph-7 above is rendered in negative. From the report dated 8.12.2011, Annexure-4, also it appears that petitioner was not paid any commission during the financial year 2010-11 as he did not assist the Bank in recovery of any amount from the defaulting borrowers, which is indicative of the fact that Recovery Agents are working at will without any control or interference from the Bank, as they are not in service of the Bank. Even otherwise assistance rendered by the petitioner in recovery of the loan amount by the Bank is not likely to affect his duties as Mukhiya of the Gram Panchayat. In my opinion, therefore, petitioner not being in service of the Bank his election as Mukhiya of the Gram Panchayat ought not to have been set aside under the impugned order. 11. The impugned order dated 19.04.2012, Annexure-8 is set aside and writ petition is, accordingly, allowed.