Dr. S. A. Ali vs State Of Chhattisgarh
2021 Latest Caselaw 3680 Chatt

                                  1

                                                               NAFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
                Writ Petition (S) No. 210 of 2016
    Dr. S.A. Ali, Aged about 62 years, S/o Late Shri
    Sayyed Ali, Block Medical Officer, Primary Health
    Centre, Patan R/o Patan Tahsil Patan , Distt. Durg,
    Chhattisgarh.

                                                   ­­­Petitioner

                                 Versus

  1. State of Chhattisgarh through Principal Secretary
    Health and Family Welfare Department, Government of
    Chhattisgarh, Mahanadi Bhawan, Naya Raipur, Tahsil
    and Distt. Raipur, Chhattisgarh.

  2. Office and Collector and Distt. Election Officer
    (Local Election) Distt. Durg, Durg, 491001, Tahsil
    and Distt. Durg, Chhattisgarh.

  3. Director     of    Health        Services,   Government   of
    Chhattisgarh, Indrawati Bhawan, Naya Raipur Tahsil
    and Distt. Raipur, Chhattisgarh.

                                                  ­­­Respondents

For Petitioner :­ Mr. V.G. Tamaskar, Advocate For Respondents/State :­ Mr. Amrito Das, Addl. A.G., Ms. Sunita Jain, G.A. and Mr. Suyash Dhar, P.L.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 14/12/2021

1. By way of this writ petition, petitioner seeks to

question the departmental enquiry initiated against

him by respondent No. 2 by issuance of charge­sheet

dated 28/02/2005 (Annexure P/2) on the ground that

he has refused to accept important communication

dated 15/01/2005 sent by Tahsildar­cum­Returning

Officer (Panchayat), Patan related to Panchayat

Election held in the year 2004­2005 which is

violative of Rules 1, 2 and 3 of Chhattisgarh Civil

Services (Conduct) Rules, 1965 punishable under the

Rules of Chhattisgarh Civil Services (Conduct)

Rules, 1966.

2. The petitioner herein was working on the post of

Block Medical Officer when he was served with the

communication dated 15/01/2005 sent by Tahsildar­

cum­Returning Officer (Panchayat), Patan seeking

information of the employees working under him,

which he refused to accept pursuant to which he was

subjected to charge­sheet dated 28/02/2005

(Annexure P/2) which has been challenged by the

petitioner on the ground that the District Election

Officer has no power and jurisdiction to initiate

departmental enquiry against him, as such, it

deserves to be quashed.

3. Return has been filed by the respondents/State

stating inter alia that the District Election

Officer, being the Controlling Authority of the

petitioner during the election, was duly authorized

to take departmental action against the petitioner

for misconduct committed by him during election

duty, as such, the departmental enquiry initiated

against the petitioner by respondent No. 2 is

strictly in accordance with law.

4. Mr. V.G. Tamaskar, learned counsel for the

petitioner, would submit that petitioner, at the

relevant point of time, was not on deputation to

the Commission, therefore, provisions of Rule 27

and 27A of Chhattisgarh Panchayat Nirvachan Niyam,

1995 would not attract and since the petitioner was

not on deputation to Election Commission,

therefore, the District Election Officer could not

have initiated departmental enquiry against him.

Even otherwise, under Rule 27A of the Rules of

1995, Election Commission is the authority

prescribed who could have taken any action against

the petitioner, as such, charge­sheet dated

28/02/2005 (Annexure P/2) issued against the

petitioner as well as the entire departmental

proceeding initiated against him by respondent No.

2 is liable to be quashed.

5. Mr. Amrito Das, learned Additional Advocate General

for the respondents/State, would submit that the

departmental enquiry initiated against the

petitioner by respondent No. 2 is strictly in

accordance with law and the instant writ petition

deserves to be dismissed.

6. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

7. True it is that petitioner was served with

communication dated 15/01/2005 by the Tahsildar­

cum­Returning Officer (Panchayat), Patan which he

refused to accept and did not supply the requisite

information within the stipulated time for which he

has been subjected to departmental enquiry by the

Collector­cum­District Election Officer.

8. At this stage, it would be appropriate to notice

the provisions contained in Rules 27 and 27­A of

the Rules of 1995, which states as under :­

"27. Control of District Election Officers.--The Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officers and all other persons appointed in accordance with these rules shall, within the over all direction and control of the Commission, work under the control of District Election Officer. 27­A. 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 Chapter for the conduct of any election shall be deemed to be on deputation to the Commission for the period commencing on and from the date of notice of election and ending with the date of declaration of the results of such

election and such officers shall be under the control, superintendence and discipline of the Commission during that period."

9. A meaningful reading of the aforesaid provisions

would show that the Returning Officer, Assistant

Returning Officer, Presiding Officer, Polling

Officer, and any other officer appointed under

Chapter V of the Rules of 1995 shall be deemed to

be on deputation to the Commission for the period

commencing on and from the date of notice of

election and ending with the date of declaration

of the result of such election and such officers

shall be under the control, superintendence and

discipline of the Commission during that period.

10. The word 'Commission' has been defined in Rule

2(c) of the Rules of 1995 which says that

Commission means the State Election Commission

constituted under Article 243K of the

Constitution and the Chhattisgarh State Election

Commission has been constituted under Article

243K of the Constitution of India.

11. The issue raised herein is no longer res­integra

and stands conclusively decided by the Division

Bench of Madhya Pradesh High Court in Umesh Singh

Yadav v. Collector/District Returning Officer,

Balaghat and Others1 in which the District

11992 MPLJ 173

Returning Officer exercising the power under

Section 28­A of the Representation of the People

Act, 1951 which is pari­materia provision to the

provision contained in Rule 27­A of the Niyam,

1995 placed the petitioner therein on suspension,

the Division Bench of the Madhya Pradesh High

Court, on consideration has held that

disciplinary power having been vested with the

Election Commission during the election, the

District Returning Officer was not competent to

place the petitioner under suspension during

election and held in para 6 as under:

"6. ..On a plain reading of the above provisions, it is clear that the authority to take disciplinary action is vested only with Election Commission and during the period of election..."

12. The aforesaid decision has been followed by the

Madhya Pradesh High Court in S.K. Tripathi v.

State of Madhya Pradesh and others 2 with approval

holding as under:

"9....What has been stated by the Division Bench is that the power vests in the Election Commission for taking action against the incumbents who are working during the election and deemed to be on duty with the Election Commission. That is the ratio of the said decision. I have said so because in paragraph 6 of the decision, the Division Bench has expressed the view that the power of superintendence, control and discipline is only conferred on the Election Commission

22009 (3) MPHT 504

in respect of various officers working during election. The term "only" is of immense significance...."

13. In Steel Authority of India, Successor of Bokaro

Steel Limited v. Presiding Officer, Labour Court

at Bokaro Steel City, Dhanbad, and another3,

Their Lordships of the Supreme Court have held

that if a particular officer has not been

authorized under the approved Rules, then the

charge­sheet served and Enquiry Committee

constituted by such officer being unauthorized

and order passed is invalid.

14. Reverting to the facts of the present case in

light of the aforesaid judgments, it is quite

vivid that the action of initiation of

departmental enquiry against the petitioner could

have been taken by respondent No. 2 only if the

petitioner was in deputation to the Commission on

15/01/2005 i.e. the date on which he has

allegedly refused to accept the communication

sent by the Tahsildar­cum­Returning Officer

(Panchayat), Patan. Admittedly and undisputedly,

petitioner was not in deputation and he was not

in election duty though he was obliged to accept

the said communication and proceed further with

the reply, but since he was not on deputation to

3(1980) 3 SCC 734

the Commission, therefore, provisions of Rules 27

and 27­A of the Rules of 1995 would not attract.

As such, respondent No. 2 was not empowered to

take any decision regarding suspesion and

initiation of departmental enquiry against the

petitioner. He could only have referred the

matter to the State Government for taking

appropriate action against the petitioner for

non­compliance of the order of Tahsildar­cum­

Returning Officer (Panchayat), Patan.

15. As a fallout and consequence of the aforesaid

legal discussion, the charge­sheet dated

28/02/2015 (Annexure P/2) issued against the

petitioner by respondent No. 2 as well as the

entire departmental proceeding instituted against

the petitioner are hereby quashed.

16. The writ petition is allowed to the extent

indicated herein­above. No cost(s).

Sd/­ (Sanjay K. Agrawal) Judge Harneet