Delhi State Civil Supplies ... vs Union Of India And Ors.
1992 Latest Caselaw 101 Del

JUDGMENT

D.P. Wadhwa, J.

(1) These are three different writ petitions. The petitioners question the legality and validity of order of the respondents asking them to report for election duty in Punjab and to act as Presiding Officers of the polling stations. Writ Petition No. 507/92 has been filed by the Delhi State Civil Supplies Corporation Employees' Union and certain employees.The Corporation is a Company, though a government company under the Companies Act, 1956. Writ Petition No. 579/92 has been filed by Northern Railway Promotee Officers' Association, and Writ Petition No. 616/92 by the employees of the Delhi Development Authority, a body corporate constituted under the Delhi Development Act enjoined to perform various functions under that Act.

(2) Polling date for general elections in the State of Punjab is 19/02/1992. To understand the rival contentions we will refer to the facts in C.W. No. 507/92 as only in this writ petition answers to show-cause notices have been filed by the Chief Electoral Officer, Delhi, and the Election Commission of India. The petitioners there have been told that they have been deployed as Presiding Officers for the forthcoming elections to the State Legislature and Parliament to be held in Punjab and their services have been placed at the disposal of the Chief Electoral Officer, Delhi. This was by letter dated 22/01/1992. Earlier on 24/01/1992 the Chief Electoral Officer wrote letter to various Secretaries/Head of the Departments of the Delhi Administration, Commissioner, M.C.D. Delhi, Administrator. N.D.M.C.,New Delhi, Vice-Chairman, D.D.A., New Delhi, and Chairman/Managing Directors of all autonomous bodies stamina "we are required by the Government of India, Ministry of Horns Affairs, to depute 1300 Presiding Officers for election duty for Punjab". The letter mentions incentives to be given to the staffs deputed for election work in Punjab and that the officers selected as Presiding Officers were expected to report for duty at the earmarked destinations ten ayse before the poll. All these Heads of the Departments are informed that given the sensitive and important nature of assignment it was imperative that all officials selected for duty were relieved and report for duty as per the prescribed schedule without fail and that no excuse for not reporting for duty would be entertained. There there is a letter dated 27 Jan. 1992 by the Secretary (Services), Delhi Administration, Delhi, to the Chairman, Delhi State Civil Supplies Corporation Limited. He said he was enclosing a list of officials from the Corporation who had been selected for appointment as Presiding Officers and that the officials selected as reserves had been shown separately in the list and their services were placed at the disposal of the Chief Electoral Officer with immediate effect and that they might be asked to await further directions in this regard from the Chief Electoral Officer, Delhi. Then followed the letter dated 29/01/1992 from the Manager (Administration) of the Corporation addressed to all the officers for their having been deployed as Presiding Officers.The petitioners have contended that their selection had been arbitrary and that no criteria had been mentioned as to how they only had been selected.They say that the situation in Punjab is so bad that there is threat to their lives and they complain breach of their fundamental rights as guaranteed under Articles 14 and 21 of the Constitution. They further say their deployment is not in accordance with the Constitution as per the provisions of the Representation of People Act, 1951 (for short 'RP Act, 1951'). Yet another contention is that they are the employees of a Company and not of any local authority and that under Section 159 of the Rp Act, 1951 every, local authority in a State shall, when so requested by a Regional Commissioner appointed under Clause (4) of Article 324, or the Chief Electoral Officer of the State,make available to any Returning Officer such staff as may be necessary for the performance of any duties in connection with an election. This submission is available only to the petitioners in C.W. 507/92, but in the case of the writ filed by the officers of the Delhi Development Authority the contention would be that local authorities situated within that particular State can be asked to make available their staff and that too on a request received from the Regional Commissioner of that State. Petitioners have also filed certain excerpts from newspapers to contend that Government employees in the State of Punjab and other neighbouring States are not willing to perform election duties and there is insecurity in Punjab and threats to the. lives and liberty of the people there are ever present. Petitioners, therefore, say their lives and liberty had been put at stake and that too without following the procedure established bylaw.

(3) In answer to show-cause notice, in the affidavit filed by Mrs.Pratibha Karan, Chief Electoral Officer, Delhi Administration, Delhi, she says that the Government of Punjab through the Government of India sought assistance of the neighbouring States for providing Presiding Officers for smooth conduct of polls and that "in pursuance of the decision of the Government of India to which the Election Commissioner was also a party" it was proposed to place services of 1300 employees of the Delhi Administration including those of local authorities to work as Presiding Officers during the forthcoming elections in Punjab. She says these officials would be called upon to perform duties only in pursuance of a valid and legal order issued by the prescribed election authority under Section 26 of the Rp Act, 1951 and that such officials would function as Presiding Officers in compliance with the orders issued under Section 26 of that Act. She further says that the officialswill, thus, be deemed on deputation to the Election Commission for the period they would be on election duty. Mrs. Karan then draws to our attention to Sections 159 and 134 of the Rp Act, 1951. Section 159 has already been referred to above and under Section 134 breach of election duty is anoffence.

(4) The affidavit of the Election Commission of India has been filed by its Secretary Mr. S.K. Mendiratta. He has raised three preliminary objections and has sought to have the petitions dismissed in liming, but with further rider that the Election Commission reserves his right to file a detail edcounter-affidavit in the event of the writ petitions not being dismissed in liming on the preliminary objections mentioned in the affidavit. These preliminary objections are : (1) The writ petition is not maintainable in view of the provisions contained in Article 329 of the Constitution and since the election process has started this Court will not have jurisdiction to interfere with the same under Article 226 of the Constitution. Any direction in terms of the prayers of the petitioners is bound to effect the arrangements being made for taking the poll on 19/02/1992 and will, thus, amount to interference with the electoral process currently on. Reliance has been placed on certain decisions of the Supreme Court. (2) Section 170 of the Rp Act, 1951 also bars the jurisdiction of this Court as it provides that no civil Court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under that Act in connection with an election. The Presiding Officers and Polling Officers are appointed for taking poll at polling stations by the District Election Officer under section 26 of the Rp Act, 1951 and that, therefore, the legality of the appointment made by the District Election Officer cannot be questioned in view of Section 170 of that Act. (3) The petitioners are having an erroneous belief that there is no power under the Constitution or the enacted laws to appoint them for the election duties in the State of Punjab. Reference has been made to clause (6) of Article 324 of the Constitution, and also to Section 26 of the Rp Act 1951. Finally, it is stated that under the law it is not necessary that a person to be appointed as a Presiding Officer or a Polling Officer should be a Government servant or an employee of a local authority. Reference has been made to a decision of the Rajasthan High Court in the case of employees of the Life Insurance Corporation of India wherein the High Court held that the employees of that Corporation were not covered under Section 159 of the RP Act 1951 as the Corporation was not a local authority. The Supreme Court in Special Leave Petition stayed the operation of the interim orders made by the Rajasthan High Court. The Special Leave Petition is still pending but it is stated that the stay of the interim orders of the Rajasthan High Court in similar circumstances still holds the filed and this Court under Article 141 of the Constitution is bound by the orders of the Supreme Court.

(5) During the course of proceedings we have been referred to various judgments of the Supreme Court where the Court has clearly laid the law that the High Court in the exercise of its jurisdiction under Article 226 of the Constitution should not interfere where the election process has started. But in one of those judgments the questions which have been raised before us werethere. Two contentions of the petitioners have been that under clause (6) of Article 324 of the Constitution there is no request by the Election Commission to the President of India to make available to him or to the Regional Commissioner, Punjab, such staff as may be necessary for the discharge of functions conferred on the Election Commission by clause (1) of Article 324, and,secondly, that it is for the District Election Officer under Section 26 of the RP Act, 1951 to appoint a Presiding Officer for each polling station and there is no such appointment of any Presiding Officers for the petitioners to function as Presiding Officers of any particular polling station, and rather petitioners say they have been asked to report to the Chief Electoral Officer, Delhi, who would have no jurisdiction in the matter.

(6) In the affidavit filed by the Election Commission except for preliminary objections mentioned therein nothing has been said if there was any request by the Election Commission. Mr K.T.S. Tulsi, learned Additional Solicitor General, did say that the request could even be on the telephone. That perhaps may not be a correct statement to make. In the normal government working even any such request on telephone would have been recorded in some note somewhere. In these proceedings under Article 226 we certainly cannot go into the question if free and fair election can or cannot be held inPunjab. That is not within our domain. The petitioners, however, say that the conditions are not normal in Punjab due to various reports in the press and the way they have been offered incentives- to do election duty in Punjab. As noted above, their contention also is that there are no guidelines as to why' only they have been selected and not others. In the writ petition (CW 576/92) it has been contended that only Group B officers have been selected and not the officials of the other groups. When the petitioners complain of infringement of their fundamental rights as granted by Articles 14 and 21 of the Constitution, they certainly expect to know that constitutional functionaries have acted in accordance with the Constitution and the law.

(7) One other question which needs determination is if the staff of a government company can be deputed for any election duty, i.e. if government company is a local authority and can be asked to perform duties in connection with an election. The case before the Supreme Court pertained to the Life Insurance Corporation of India which was constituted as a Corporation under an Act of Parliament. The interim stay granted by the Supreme Court cannot be said to be a law laid under Article 141 of the Constitution. But then following that order it can at best said that the D.D.A. is a local authority and its staff may fall within Section 159 of R.P. Act, 1951, but certainly not the staff of a government company. A local authority has been defined under,Section 3 of the General Clauses Act to mean a municipal committee district board, body of port commissioners or other authority legally entitledto, or entrusted by the Government with, the control or management of a municipal or local fund. This definition takes the government company out of the category of the local authority and, thus, outside Section 159 of the RP Act, 1951.

(8) Even assuming that District. Election Officer in Punjab has a power to appoint any person outside that State to act as Presiding Officer of a polling station, but that power has to be exercised by the District Election Officer as envisaged under Section 26 of the R.P. Act, 1951, and not by the Chief Election Officer, Delhi. It cannot be disputed that any person can be appointed by the District Election Officer to act as Presiding Officer.

(9) A question was then raised by the respondents that any order made by us would result in staying of the election process which has been Started and that would go against the law laid by the Supreme Court. This contention does not appear to us to be quite correct. The contention has been raised with reference to Article 329 where an election can be called into question only by an election petition, and also to Section 170 of the Rp Act,1951 which bars jurisdiction of the Civil Court. In various judgments of the Supreme Court which have been cited before us at the Bar it will be seen there that an elector or a candidate could ultimately question the election, and as such could not file a petition in the High Court staying the election process.Here it is the staff of a government company, a local authority, and a Government department which are questioning the constitutional validity and the legality of the action of the respondents for deploying them to election duty.They certainly cannot file an election petition because under Section 81 of the RP Act, 1951 election petition can be filed only by a candidate at such election or any elector. A candidate and elector have been defined under the Act then what right the petitioners would have after the elections are over. Would not that be making their petitions infructuous ?

(10) At the conclusion of the arguments today Mr. K.T.S. Tulsi,learned Additional Solicitor General, appearing both for the Union of India and the Election Commission, filed an affidavit before us sworn by Mr. D.S.Bagga, Deputy Election Commissioner, stating th at request was in effect made by the Election Commission to the President of India as envisaged in Clause'(6) of Article 324 of the Constitution. However, Mr. Bagga says that he would claim privilege against disclosure of the contents of various records on the basis of which request was made by the Election Commission to the Union of India for making arrangement to deploy polling staff from outside the State of Punjab. It is stated that privilege is claimed on the ground that the said record of communications and meetings contain information, the disclosure of which is detrimental to the maintenance of law and order and public order in the State of Punjab, as also in the neighbouring States. Mr.Bagga further states that from lime to time after the announcement of elections to the State Legislative Assembly in Punjab, requests were made to the Union of India through the Union Home Minister and Union Home Secretary to deploy polling staff for election duty in the State of Punjab from amongst employees who do not reside in that State. He further says that in the course of several meetings held to take follow up action on the request of the Commission and the Government of Punjab, he himself was present and has followed up progress with regard to deployment of polling staff from outside the State of Punjab. It is further stated that records have been brought to Court for its perusal and inspection for substantiating the aforesaid averments but that it was not in public interest to disclose the contents thereof the petitioners and privilegewas, thus, sought to be claimed. A copy of this affidavit was handed over to learned Counsel for the petitioner. Mr. Ganesh said that if it is to be deciphered from the various records that a request as required under Clause (6) of Article 324 of the Constitution was in fact made he has a right to examine the records and also to contest the right of the Election Commission to claimprivilege.

(11) We are of the opinion that substantial questions do arise in these petitions for consideration by this Court. We heard arguments in some detail and would have proceeded to hear the matter further and to dispose of the writ petitions at this stage itself but for the fact that the Election Commission wants to file further affidavit. We are not satisfied with the preliminary objections raised by the Election Commission. Accordingly, we will issue RuleD.B. We are quite aware of the fact that the matter needs immediate disposal and as a matter of fact we had even suggested to learned Counsel for there spondents that if it was not possible to file counter-affidavit relevant records be brought to the Court and today we are told by the Election Commission that he is claiming privilege. We will, therefore, set down the matter immediately for hearing as from tomorrow and in the circumstances there will be stay of the impugned orders.

17-02-1992CWPNo. 706/92:This writ petition has been filed by employees of National Institute of Public Co-operation and Child Development, respondent No. 4, a society registered under the Societies Registration Act.CWP No. 708/92:This writ petition has been filed by the Association of certain employees and some of the employees of the New Delhi Municipal Committee constituted under the Punjab Municipal Act as extended toDelhi.CWP No. 709/92:This writ petition is by the three employees of the Delhi Tourism &Transportation. Development Corporation, a Government company,respondent No. 4.CWP No. 710/92:This writ petition is by the association of the employees of the fourthrespondent, nemely, Central Social Welfare Board, a Section 25 Company under the Companies Act, 1956, like any government company.CWP No. 711/92 :This writ petition is by seven employees of the fourth respondent,namely, Municipal Corporation of Delhi, constituted under the Delhi Municipal Corporation Act.CWP No. 712/92:This writ petition is by the Officers' Association of Collectorate of Customs and Central Excise, Delhi Collectorate, New Delhi.CWP 719/92:This writ petition is by an employee of Delhi State Mineral Development Corporation Limited, a Government company under the DelhiAdministration.CWP No. 722/92:This writ petition is by fourteen employees of the Delhi Development Authority constituted under the Delhi Development Act,1957.CWP No. 723/92 ; This writ petition is by the 25 employees of the Delhi Development Authority constituted under the Delhi Development Act, 1957.CWP No. 724/92 :This writ petition is by the Income-tax Gazetted Officer' Associations erving in Ne.w Delhi area and from the office of the Chief Commissioner of Income-tax, New Delhi.CWP No. 699/92:In this petition which is also filed by 64 employees of the Delhi Development Authority rule nisi had already been issued for today and interim orders granted in terms of order dated 13/02/1992in C.W.P. 507/92.CWP No. 700/92:This petition is by the thirteen employees of the Delhi Administration,In this rule nisi was issued for this date and interim orders granted in terms of order dated 13/02/1992 in C.W.P. 507/92.CWP No. 616/92:This petition is by nine employees of the Delhi Development Authority.In this case we had already passed interim order on 13/02/1992 and this petition was connected with Civil Writ Petition507/92.CWP No. 507/92:This is the main writ petition in which we are passing interim orders.Interim order dated 13/02/1992 was made in this petition. This has been filed by the employees' Union of Delhi State Civil Supplies Corporation Limited a Government company of Delhi Administration and five of its employees. In this case today an application seeking amendment of the writ petition has been filed copy of which has earlier been given to the learned Counsel for the respondents todayitself.CWP No. 576/92:This petition filed by an Association of Northern Railway PromotteeOfficers' Association was heard along with C.W.P. 507/92 where in interim order was made on 13/02/1992. An application seeking amendment of the writ petition has been filed copy of which has been served upon the Counsel for the respondents today itself.CWP No. 507/92:

(12) In three writ petitions, namely, C.W.Ps. 507/92, 576/92 and616/92, we passed interim orders on 13/02/1992. Interim orders were made after taking only prima facie view of the matter. This order is in continuation of that after further hearing in the matter. Thereafter, various writ petitions have been filed in some of which we again issued show. cause notices as to why rule nisi be not issued, returnable this day. Some of the writ petitions came up for admission today itself. Copies of all the writ petitions have already been served on the respective Counsel for the respondents. Details of these writ petitions have been mentioned in the title above.

(13) There are various types of cases before us where employees have challenged either the orders of the Chief Electoral Officer, Delhi, requiring them to report for election duty in Punjab or by the District Election Officer in various districts in Punjab asking individual employees to report for duty there in terms of Section 26 of the Representation of People Act, 1951.

THE categorisation may be made as under :-1. Employees of the Government departments like Income-tax,Central Excise and Customs, and Railways.2. Employees of Government companies registered under the Companies Act.3. Employees of Societies registered under the Societies Registration Act though under the control of the Government.

(14) We have further considered the matter. In the earlier order we had given an interim finding that it could not be disputed that any person could be appointed by the District Election Officer to act as Presiding Officer.We have been taken through various provisions under the R.P. Act, 1950, andR. P. Act, 1951 as well as to the relevant provisions of the Constitution particularly Article 324. We may also note that in some of the writ petitions inin which we had issued notices, applications have been filed seeking amendment of the writ petition and to challenge the orders of the District Election Officers which came about after the making of the interim order. We are also conscious of the fact that general elections in the Punjab are going to be held day after. In the three writ petitions mentioned in the beginning of the order we have issued Rule. D.B. as we noted that substantial questions of law wereinvolved. These writ petitions are still pending. In the affidavits filed by the Election Commission which have been noted in our earlier order it had been stated that request was in fact made by the Election Commission to the President of India for making available such staff as may be necessary for discharge of functions conferred upon the Election Commission under Clause(1) of Article 324 of the Constitution. Privilege had been claimed from disclosing the documents which show that such a request had been made. This will be gone into at the time of hearing of the writ petitions. Since Mr. D.S. Bagga,Deputy Election Commissioner, has filed an affidavit on oath to this effect,there is nothing on record for us not to accept his version that a request under Clause (6) of Article 324 of the Constitution was made. That being so, we cannot find any fault at this stage in the orders of the District Election Officers requiring Government staff to perform the duties as Presiding Officers.

(15) The case is, however, different in case of employees of authorities like the Delhi Development Authority, Municipal Corporation of Delhi, and New Delhi Municipal Committee, though all local authorities but not within the State of Punjab. under section 159 of the R.P. Act, 1951, which also we had noticed in our earlier interim order, every local authority in a Stateshall, when so requested by a Regional Commissioner appointed under Clause(4) of Article 324, or the Chief Electoral Officer of the State, make available to any Returning Officer such staff as may be necessary for the performance of any duties in connection with an election. Assuming that a local authority may be outside that particular State, the request has to come from the Regional Commissioner or the Chief Electoral Officer of the State concerned.There is no such request and nothing has been said about it by the respondents.A society under the Societies Registration Act, or a Government company under the Companies Act, 1956, is certainly not a local authority under section 159 of the R.P. Act, 1951. To us it appears, again prima facie, that though the District Election Officer can appoint a Presiding Officer for each polling station, that has necessarily to be from the Government staff detailed on duty in terms of Article 324 of the Constitution. Proviso to sub-Section(1) of Section 26 deals with appointment of a Polling Officer by the PresidingOfficer. We have been referred to Sections 27 and 28A of the R.P. Act 1951,and it does appear to us that a Presiding Officer necessarily has to be from the staff of the Government and if he is from outside the State then staff could be made available on a request made by the Election Commission under Clause (6) of Article 324 of the Constitution. Otherwise, any other interpretation would made the provision of Clause (6) of Article 324 nugatory. Since after the passing of interim order dated 13/02/1992 orders have been received from the respective District Election Officers, that interim order has necessarily to be modified to some extent. Wewill, therefore, direct that in the writ petitions where the employees belong to the Delhi Development Authority Municipal, Corporation of Delhi, New Delhi Municipal Committee, Government companies and societies registered respectively under the Companies Act and the Societies Registration Act (the details of which writ petitions are mentioned in the title of this order), orders issued by the District Election Officers will not be implemented by the respondents. In the new writ petitions listed before us today we issue notice to show cause in all these matters as to why rule-nisi be not issued, returnable on24-02-1992.