ORDER
R.D. Shukla, J.
1. The petitioner is Deputy Divisional Manager posted at Balaghat and is an employee of the Rajya Van Vikas Nigam Limited, which is a Government Company within the meaning of Indian Companies Act, 1956. Petitioner challenges the impugned order dated 3-6-1991 (Annexure P-5), whereby the District Returning Officer, Balaghat (respondent No. 1) has placed him under suspension and has issued him the Charge-sheet on 6-6-1991 (Annexure P-6). Allegations are that the services of the petitioner from the Corporation were requisitioned during General Election and the petitioner is alleged to have remained absent to discharge duties of a Presiding Officer during the last election.
2. A show cause notice on admission was issued in this case, pursuant to which the respondents filed a joint return. With the consent of counsel for parties the case was finally heard and is being disposed of by this order.
3. Learned counsel appearing for the petitioner challenges the impugned order of suspension and the charge-sheet on the ground that provisions of Section 28A of the Representation of the People's Act, 1951, (hereinafter referred to as the Act) on the basis of which the impugned order of suspension is purported to have been passed, only empowers the Election Commission to take disciplinary action against an employee who is deemed to be on deputation with the Election Commission, during election.
4. Contention on behalf of the petitioner is that the Returning Officer has no authority to pass the order of suspension and issue the charge-sheet.
5. Learned counsel appearing on behalf of the respondent made an attempt to support the impugned action of suspension and issuance of charge-sheet placing reliance on the provisions of Section 24, 26 of the Act, 1951 and Section 16 of the General Clauses Act. Argument on behalf of the respondents is that the Collector, (Respondent No. 1) for the purpose of election was both Returning Officer and District election officer under the provision of Representation of the People's Act, 1950 and the Representation of the People's Act, 1951; and, therefore, he could exercise the general control during election which includes disciplinary control over the staff employed for election purposes. Reliance is also placed on the decision reported in State of U.P. and Ors. v. Ram Naresh Lal, 1970 (3) SCC 173.
6. Having given our careful consideration to the contention raised on behalf of the parties, we are of the opinion that the petition deserved to be allowed on the short ground that the impugned order of suspension could not have been passed by the Returning Officer under the provisions of Section 28A of the Act, 1951, which confers power of superintendence, control and discipline only on the Election Commission in respect of various officers working during election, and who are deemed to be on deputation with the Election Commission. The provision of Section 28A of the Act, 1951 as introduced by Amendment Act No. 1/1989, with effect from 15-3-1989 is reproduced hereunder : -
'28. A 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 Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results of such election and accordingly, such officers shall, during that period, be subject to control, superintendence and discipline of the Election Commission.'
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.
7. The contention of the learned counsel for respondents cannot be accepted that the above power of Election Commission under Section 28A of the Act could be exercised by the returning officer under Section 24 of the 1951 Act or Section 13-AA thereof. We are also not impressed by the argument that, since the appointment of presiding officer could be made by the returning officer, under Section 26 of the 1951 Act, the returning officer had power to suspend by virtue of provisions contained in Section 16 of the General Clauses Act . It cannot be lost sight of that in this case the petitioner is an employee of the Government Company. The power to appoint a presiding officer vested in the returning officer could not empower the returning officer to suspend the petitioner as who is an employee of the Corporation and his appointing authority is the Corporation. The respondent No. 1, cannot, therefore, avail of the provisions contained in Section 16 of the General Clauses Act.
8. There is thus no escape from the conclusion that if at all any disciplinary action was required due to the alleged misconduct on the part of the petitioner, the returning officer could have approached the Election Commission for taking suitable action against the petitioner under Section 28A of the Act of 1951.
9. The election period is now over and the deemed deputation of the petitioner under Section 28A of the Act has, therefore, also ended. There is no fresh order of suspension issued by the respondent Corporation.
10. The petition, therefore, succeeds and is allowed. The impugned order of suspension Annexure P-5 dated 3-6-1991 and the Charge-sheet Annexure P-6 are hereby quashed. In the circumstances there shall be no order as to costs.