Balbir Singh vs State of Punjab and Others

Augustine Geoge Masih, J.—The petitioner, through this writ petition, is impugning the order dated 21.8.2009, Annexure P-8, passed by the State Election Commission, Punjab, vide which recommendation of the Deputy Commissioner-cum-District Electoral Officer, Ferozepur, which was based upon the findings given by the Election Observer, stands accepted and directions issued that petitioner, Balbir Singh, who was the Returning Officer alongwith two other officials, be placed under suspension immediately by the competent authority. It was further ordered that the petitioner shall not be reinstated without prior approval of the State Election Commission and a charge sheet for imposing major penalty be also served on him. The petitioner was further barred from appointment as Election Officer in Urban and Rural Local Bodies Elections in future. Vide impugned order, the Deputy Commissioner-cum-District Electoral Officer, Ferozepur, has been directed to initiate criminal action against the petitioner and two other officials, who have been, prima-facie, found guilty under the relevant election law and the Indian Penal Code. Briefly, the facts are that the petitioner was working as a Sub Divisional Engineer in Water Supply and Sanitation (R.W.S.), Sub Division No. 3, Ferozepur. He was appointed as a Returning Officer for the bye-elections of 11 Gram Panchayats in Mamdot Block, District Ferozepur, vide order dated 6.8.2009. He reported for duty at Mamdot Block at 11 A.M. on 11.8.2009 and received nomination papers of all the candidates, who approached him within the time specified i.e. 11 A.M. to 3 P.M., which was the last date of filing nomination. The candidates were informed that the scrutiny of the nomination papers will be conducted on 12.8.2009 in the Panchayat Office, Block Mamdot between 11 A.M. to 3 P.M. He conducted the scrutiny of the nomination papers and rejected some of them, which were not accompanied either by the scheduled caste certificate or residence proof or affidavits or no due certificates.

On 13.8.2009 i.e. the date of withdrawal of the nomination papers, a list of candidates, who were found eligible and had not withdrawn their candidatures, was prepared and forwarded to the Block Development and Panchayat Officer, Mamdot, District Ferozepur and a copy thereof was also affixed on the notice board of the Panchayat Office/Block Development Office, Mamdot.

The Block Development and Panchayat Officer, respondent No. 4, in his report dated 13.8.2009 addressed to Deputy Commissioner-cum-District Electoral Officer, respondent No. 3, stated that the petitioner and two officers, namely, Mahavir Singh and Santokh Singh, have committed gross negligence in performing their duties and have illegally rejected the nomination papers on flimsy grounds. It was also stated that they were not present on duty on the dates of receipt of nomination and scrutiny of the same. Recommendations were also made by respondent No. 4 for disciplinary action against these officers.

Respondent No. 3, on the basis of the report dated 13.8.2009 submitted by respondent No. 4, recommended vide letter dated 14.8.2009, Annexure P-5, to respondent No. 2 for immediate suspension of the petitioner alongwith abovesaid two officials, on the basis of which the State Election Commission, Punjab (respondent No. 2) directed the Election Observer, Ferozepur, to conduct an enquiry in the matter and to send its report in three days. The petitioner was directed vide letter dated 16.8.2009 by respondent No. 3 to meet the Election Observer, who was on visit to Ferozepur District. Petitioner accordingly appeared before the Election Observer on 17.8.209 and produced all the relevant record in connection with the election of the 11 Gram Panchayats. He submitted his explanation and gave reasons for rejection of each nomination paper in detail. The Election Observer submitted his report dated 20.8.2009 to the State Election Commission, respondent No. 2 and on the basis of said report, impugned order dated 21.8.2009, Annexure P-8, was passed, which is assailed by the petitioner in the present writ petition.

The ground for challenging the said order of the State Election Commission is that there is a safeguard provided vide Section 128 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as "1994 Act"), which protects all actions taken by the officials in good faith. It has further been stated that the petitioner was performing his duties as a Returning Officer. It has further been stated that Section 128 of the 1994 Act provides the duties to be performed, which have been termed as official duties, and since the petitioner was performing the said duties, he can not be held guilty for the same. The counsel contends that action, if any, can be taken against the petitioner only under the provisions as provided under 1944 Act.

Reply to the writ petition has been filed by the respondents.

Respondent No. 2, the State Election Commission, Punjab, has stated in the reply that in pursuance of the order dated 21.9.2000 passed by the Hon''ble Supreme Court in Writ Petition (C) No. 606 of 1003 Election Commission of India v. Union of India and others, the Election Commission of India has, vide Order No. 4/2001/JS. II dated 7.2.2001 addressed to the Chief Secretary and Chief Electoral Officers of all States/Union Territories, issued instructions and as per Instruction No. 16, disciplinary action can be initiated against officials appointed on election duty u/s 13CC of the Representation of the People Act, 1950 and Section 28A of Representation of the People Act, 1951. These instructions cover all officers/staff and police personnel deputed to perform election duties during the election and, thus, the Election Commission has the powers to initiate disciplinary proceedings against the officials, who are appointed to perform election duties. Further, Instruction No. 17, dated 30.7.2008, also provides for taking strict action against senior level officials, which includes the Returning Officer. It is further mentioned in the said instruction that in case such senior level officer violates the law, the approach should be to take exemplary disciplinary action so that the signals go loud and clear for not effecting election management.

The Supreme Court of India in Civil Appeal No. 5756 of 2005, Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others, has held that in terms of Article 243-K and Article 243ZA(1), the same powers are vested with the State Election Commission as the Election Commission of India under Article 324 of the Constitution of India. The words in the former provisions are in pari-materia with the latter provision. Thus, the State Election Commission of India is fully competent to initiate disciplinary action, including suspension of the Returning Officer for misconduct or non-performance of election duties properly.

It has been explained that protection of Section 128 of the 1994 Act would not be applicable to the present case as a proper report has been received from respondent No. 3, stating that the petitioner has violated the rules and instructions and has committed negligence in performance of election duties. The State Election Commission has come to a conclusion that the report of the Election Observer, prima-facie, finds the petitioner to have misconducted himself, which would require strict disciplinary action to be taken against him. As per Article 243-K of the Constitution of India, the State Election Commission has been vested with the powers of superintendence, direction and control of preparation of electoral rolls for and the conduct of all elections to the Panchayats. The impugned order has been passed while exercising such powers, as have been conferred under the Constitution, the 1994 Act, as also as per the judgment of the Supreme Court, which is in consonance with law and, therefore, can not be said to be not sustainable.

During the course of hearing, counsel for the petitioner stated that those candidates, whose nomination papers had been rejected by the petitioner, they had preferred election petitions, which have been dismissed. He, on this basis, has contended that rejection of candidature of the aspirants for election for various Panchayats having been found to be correct, no misconduct can be said to have been committed by the petitioner and, therefore, the impugned order deserves to be set-aside.

On being asked by the Court to refer to the pleadings in this regard or to the orders vide which the election petitions have been dismissed, counsel for the petitioner was unable to point out anything from the record. What to say so of the said contents being on record, he was not having any order with him to substantiate his said argument. He was also unable to inform the Court as to whether the information has been supplied to him by the petitioner or not. Finding this conduct of the petitioner''s counsel to be totally unacceptable, this Court is of the view that the counsel has made an effort to mislead this Court.

In any case, in the light of the judgment passed by the Supreme Court in Election Commission of India''s case (supra) and Kishansing Tomar''s case (supra), the instructions have been issued by the Election Commission of India, which empowers the State Election Commissioner to pass the impugned order. Apart from the powers conferred under the Constitution of India, the State Election Commission, Punjab, was fully justified in passing the impugned order, dated 21.8.2009, Annexure P-8, as the same is in accordance with law. In view of the above discussion, there is no merit in the writ petition and the same is accordingly dismissed.