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2013 DIGILAW 1128 (KAR)

Ramachandra v. State of Karnataka

2013-09-19

N.KUMAR, V.SURI APPA RAO

body2013
ORDER N. Kumar, J. 1. This petition is filed challenging the order passed by the Karnataka Administrative Tribunal which has declined to interfere with the punishment imposed on the petitioner for the proved misconduct. For the sake of convenience, the parties are referred to as they are arrayed before the Karnataka Administrative Tribunal (hereinafter referred to as the 'Tribunal' for short). 2. The applicant joined the Government services as Headmaster in the Department of Public Instructions. After completion of eight years of service, he was promoted as Coordinator, Block Resource Centre in the Department of Secondary Education in Raichur District at Devadurga. He was also holding additional charge of Block Education Officer of Devadurga Taluk, Devadurga. During the month of June 2001, the Government of Karnataka conducted elections to Town Panchayat of Devadurga Town to Wards 1 to 9. The applicant was appointed as Returning Officer to the Elections of Town Panchayat by the Deputy Commissioner, Raichur District. As a Returning Officer, he had issued a calendar of events for elections for Councilors to Wards 1 to 9 of Town Panchayat of Devadurga. The last date for withdrawal of nomination was 25-6-2001. 3. One Smt. Uma Devi the fourth respondent, also had filed her nomination paper to contest from the Janata Dal Political Party Ward No. 4. The election was scheduled to be held on 8-7-2001. It is the case of the applicant that the fourth respondent sent Form 5 to the fifth respondent for withdrawal of her nomination along with the authorisation letter said to have been written and signed by the fourth respondent. The applicant verified Form 5 along with the authorisation letter and satisfied himself with the thumb impression of the fourth respondent as found in her nomination papers and ordered withdrawal of the nomination of the fourth respondent. At that time, one Sri Saranappa, Taluk President of the Janata Dal, appeared before the applicant and informed him that the fourth respondent is not in station and she is not withdrawing her nomination papers and she has not signed Form 5 and the authorization letter submitted by the fifth respondent is invalid. The applicant also contacted the Deputy Commissioner and ex officio, District Election Officer of Raichur District and got confirmation of withdrawal in Form 5 along with the authorisation letter could be accepted as such the nomination paper of the fourth respondent was declared as withdrawn. The applicant also contacted the Deputy Commissioner and ex officio, District Election Officer of Raichur District and got confirmation of withdrawal in Form 5 along with the authorisation letter could be accepted as such the nomination paper of the fourth respondent was declared as withdrawn. The candidate was not present in person. The fourth respondent filed a writ petition before this Court in W.P. No. 25138 of 2001 seeking direction to the Returning Officer to declare her nomination paper as valid. By interim order dated 4-7-2001, this Court issued direction to the applicant to treat the fourth respondent as one of the contesting candidates to Ward No. 4. Accordingly, fourth respondent contested the election but she was not successful. When the writ petition came up for final hearing, the High Court observed to conduct enquiry about the allegations made by the fourth respondent against the applicant-petitioner regarding withdrawal of nomination papers. In pursuance of the said direction, the preliminary enquiry was conducted by the second respondent and it was noticed that the applicant has violated the norms of the election commission and thereby committed irregularity and consequently, liable for punishment. A show-cause notice came to be issued on 25-2-2002 pending enquiry he was kept under suspension by an order dated 25-2-2002. The explanation was not satisfactory. Therefore an enquiry was initiated. Third respondent was appointed as Enquiry Officer and after completion of the enquiry, he submitted a report holding that the misconduct of violating the election norms in rejecting the nomination papers of the fourth respondent stood established. The second show-cause notice came to be issued. After looking into the reply, the Disciplinary Authority passed an order of reduction of salary of minimum basic of Rs. 6,000/- with immediate effect for a period of five years and to maintain the minimum basic as fixed for the punishment period of five years and thereafter to get his promotion after completion of the punishment of five years from the minimum basic and declaring that the period of suspension as suspension only. Aggrieved by the said order, the applicant preferred application before the Karnataka Administrative Tribunal contending that the authority who conducted the enquiry was not the Competent Authority. The report shows that the allegation of collusion is not proved. Aggrieved by the said order, the applicant preferred application before the Karnataka Administrative Tribunal contending that the authority who conducted the enquiry was not the Competent Authority. The report shows that the allegation of collusion is not proved. In those circumstances, when the charges are not proved, no punishment could have been imposed and therefore, he sought for setting aside the order of the Disciplinary Authority. The Tribunal on careful consideration of the entire material on record held the authority which conducted the enquiry is the Competent Authority. Though the allegation of collusion is not proved, the allegation of his conduct contrary to the rules is established and therefore it declined to interfere with the order passed by the Disciplinary Authority. Aggrieved by the same, the review petition was filed which also came to be dismissed. Thereafter the present writ petition is filed. 4. The learned Counsel for the petitioner-applicant assailing the impugned order contends, as the act complained of was during the period the applicant was deputed to the Election Commission, it is only the Election Commission which is the Competent Authority to hold an enquiry and therefore, the enquiry conducted in this case is vitiated. On that ground alone, the impugned orders are liable to be set aside. Secondly, he contended the charge leveled against the applicant was of collusion which the Enquiry Officer has categorically stated is not proved. Therefore, the Disciplinary Authority committed serious error in imposing punishment on a charge which is not proved and therefore, he submits a case for interference is made out. He also contended that the punishment imposed is not proportionate to the gravity of the misconduct proved. 5. Per contra, the learned Government Advocate supported the impugned order. 6. Section 38-A of the Karnataka Municipalities Act, 1964, reads as under: 38-A. Returning Officer, Presiding Officer etc. He also contended that the punishment imposed is not proportionate to the gravity of the misconduct proved. 5. Per contra, the learned Government Advocate supported the impugned order. 6. Section 38-A of the Karnataka Municipalities Act, 1964, reads as under: 38-A. Returning Officer, Presiding Officer etc. deemed to be on deputation to State Election Commission.—Notwithstanding anything contained in this Act or any other law for the time being in force, the Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and any other officer appointed by or under this Act and any Police Officer designated for the time being by the Government, for the conduct of any election of Councilors under this Act shall be deemed to be on deputation to the State Election Commission for a period commencing on and from the date of notification calling for such election and ending with the date of declaration of the result of such election and accordingly, such officer shall, during that period, be subject to the control of superintendence and discipline of the State Election Commission. 7. A reading of the aforesaid provision makes it very clear when a Government servant is deputed to the State Election Commission, the said deputation shall be deemed to be for a period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the result of such election. Accordingly such Officer shall even during the period of deputation, be subject to the control of the superintendence and discipline of the State Election Commission. 8. Section 35 of the Karnataka Municipalities Act, 1964, deals with breaches of official duty in connection with elections. The official duty shall for the purpose of Section 35 be construed as duty in connection with the election. Therefore, it is clear during the period of deputation if the Officer commits any breach of duty as contemplated under the election law, he is amenable to the jurisdiction to the Election Commission during the period of deputation. Once the period of deputation is over by announcement of the result even in respect of omission and commission during the period of deputation it would be the Disciplinary Authority who is competent to take action and not the Election Commission. Once the period of deputation is over by announcement of the result even in respect of omission and commission during the period of deputation it would be the Disciplinary Authority who is competent to take action and not the Election Commission. That is precisely what the Tribunal has held and therefore, we do not see any error committed by the Tribunal in recording the said finding. 9. The charge leveled against the applicant-petitioner was two-fold: One is violating the law regarding the steps the respondents should have taken before permitting withdrawal of the nomination papers and secondly in collusion with the opposite party, he was responsible for the withdrawal of the nomination papers. 10. The Enquiry Officer has categorically stated that the second charge is not proved, whereas the first charge is proved. If the second charge had been proved the punishment to be imposed was nothing less than the order of dismissal. As the said charge was not proved, the Disciplinary Authority has taken a lenient view of the matter and has imposed the punishment of bringing down the pay to the minimum and treating the period of suspension as only suspension. 11. In the facts of this case, we are satisfied the conduct of the applicant-petitioner amounts to interfering with an election process and thus denying a valuable statutory right of a citizen of this country to contest the election. But for the interference by this Court and grant of interim order, the person whose nomination was withdrawn could not have contested the election. It is settled law that once the election process has commenced, normally the Court should not interfere with the election process and even the grievance regarding improper rejection of a nomination paper is to be agitated by way of an election petition after the announcement of the results of the election. So grave is the consequence of an improper rejection of a nomination paper that is precisely what is alleged against the applicant and proved also. In that view of the matter, the punishment imposed is proportionate to the gravity of the misconduct which is held to be proved and therefore no case for interference is made out. No merits. Accordingly, the writ petition is dismissed.