Mecon Employees Union and ors. Vs. Election Commission of India and ors. - Court Judgment

Excerpt:
constitution of india, article 324(6) - representation of the people act, 1951, section 159 - order, requisining services of employees of private undertakings for election duty--illegal--it is only the employees of central government, state government, government of india undertakings and other undertakings in which central or state government has minimum shares--who can be requisitioned. [election duty--requisition of officers--permissibility]. - prasun kumar deb, j.1. this case is taken up along with c.w.j.c. nos. 385, 482, 480, 486 and 464 of 1995 (r) as common question of law and facts are involved in all the cases.2. the crux of dispute is with regard to the engagement of employees and officers of the various undertakings, corporations and companies in the election duty as contemplated under article 342(6) of the constitution of india read with section 159 of the representation of people act, 1951 (hereinafter referred to as 'the act')3. the petitioners, in the present case, are the mecon employees union, mecon executive association and some officers of mecon in their individual capacity who were requisitioned to perform election duly in the ensuing vidhan sabha election 1995 in the state of bihar issued by respondent no.3, the chief personnel manager, mecon, consequent to the order of the deputy commissioner, ranchi-cum-returning officer of the district of ranchi4. similarly in c.w.j.c. no, 385 of 1994 (r), the petitioners are of three categories of employees of the central coalfields limited, namely, coal india officers association of central coalfields branch, darbhanga house at ranchi, coal india officers association of cmpdi limited and national coal organisation employees association and some officers/employees of the central coalfields limited in their individual capacity challenging the legality and validity of requisitioning their services for the purpose of election duty vide letter dated 4.1.1995 issued by respondent no.2, district election officer-cum-deputy commissioner ranchi.5. in c.w.j.c. no. 464 of 1995 (r), the petitioners are coal mines officers association of bharat coking coal limited, coal mines officers association of cmpdi limited challenging the validity of letter of requisition as mentioned above dated 6.12.1994 issued by the deputy commissioner-cum-district election officer, dhanbad.6. in c.w.j.c, no. 480 of 1995 (r), the petitioners are the c.c.l. colony karamchari sangh act some officers/employees of rajrappa area of the central coalfields ltd., of the district of hazaribagh, challenging the validity of requisitioning the service of the employees and the staff of rajrappa area of the central coalfields limited by the district election officer-cum-deputy commissioner, hazaribagh.7. in c.w.j.c. no. 486 of 1994 (r), the petitioners are the employees and officers of m/s. instrumentation limited, a registered society having its registered office at kota challenging the validity of the appointment of the members/staff of the society for the election duty under the direction/command of the deputy commissioner-cum-returning officer, bokaro.8. in c.w.j.c. no. 482 of 1995(r), the petitioners are scientist and technician of the indian lac research institute, namkum at ranchi, a concerned of i.c. a.r., a society registered under the societies registration act, challenging the validity of their engagement for the election duty in the ensuing election of vidhan sabha in the state of bihar.9. the grievance of the petitioners in all the cases is that they are not the employees either under the state government or central government, and, as such, their services cannot be requisitioned for the purpose of election duty by the election commission as per the interpretation arrived at regarding 'such staff as appearing in sub-clause (6) of article 324 of the constitution of india'. their further contention is that they are also not be considered as the employees of local authority as envisaged under section 159 of the act whose service can be requisitioned for the purpose of election duty local authority has been defined in sub-section (31) of section 3 of the general clauses act, 1897, which includes a municipal committee, district board, body of port commissioner or other authority legally entitled to or entrusted by the government with the control or management of a municipal or local fund. this controversy came up before this court when the state bank of india staff association of patna unit filed c.w.j.c. no. 7815 of 1991 before this high court and a division bench of this court in s.b.i. staff association v. election commission of india (1994) 1 bur 128 held that the employee and staff of the state bank of india are governed by the state bank of india ac 1955 and that they are not the employees either of the state government or the central government and as such neither the president of india nor the governor of state ca utilise or avail their services for the election duty. it was further held by that decision that they also do not come under the local or other authority within the meaning of the 'state' as contemplated under article 12 of the constitution of india as envisaged under section 159 of the act to have their services utilised for the purpose of election duty. the election commission of india went against the decision of this court before the ape court in civil appeal no. 6026 of 1993 and by considering the pros and cons of the matter upheld the decision of this high court holding that only the employees who an neither the state government or the central government cannot be requisitioned for the purpose of election duty.10. the touch stone for decision as to who comes under the purview of the state the central government employees is whether they can be protected under article 311 the constitution or not. it has been decided by the apex court that the employees under the central government or the state government undertakings or corporations are nor the central or state government employees as they cannot get protection under article 311 of the constitution. this point has been decided by the apex court in dr. s.i agrawal v. hindustan steel limited : (1970)iillj499sc , regarding the employees of hindustan steel limited and this court has also decided in the same in regarding the employees of sindri fertilizer and chemical limited. reference may b made to the case of subodh ranjan ghosh v. sindri fertilizer and chemicals limited : (1957)iillj686pat 11. thus it has not been settled as per the decisions of the apex court as mentioned above that except those employees who are directly the state government or the other; government employees, the other employees of the government of india undertakings of the state government undertakings or the companies where maximum shares belonged to the state or the central government cannot be considered for the purpose of election duty as per article 324(6) of the constitution. moreover, companies or undertaking where the petitioner are the employee in all the above mentioned cases cannot be include within the local authority as per section 159 of the act. then comes the question as in the hand book for returning officers published by the election commission of india wherein the services of employees of corporations and undertakings are included for the purpose of election duty. this point has been also considered by this court in s.b. staff association (supra). the election commission is no doubt a statutory body and has got the duty for making free and fair election and for that purpose, it can formulate directions and modes for the purpose of smooth electionering, but it can only derive in power from the constitution of india and cannot make rules or directions outside article 324(6) of the constitution and section 159 of the act and, as such, by such publication of hand book, there cannot be any direction drafting services of the employees for the election duty other than the state or the central government employees.12. during the course of hearing, a fax message has been shown wherein the election commission of india has given direction to ranchi district to take necessary steps for exempting c.c.l./cmpdi/mecon employees from the election duty in till light of the supreme court's judgment. thus, after such direction, practically, the grievance of the petitioners in c.w.j.c. no.s 385, 335, 480 and 464 of 1995 (r) has been nullified. in the same analogy of the judgment of the supreme court, the grievance of the petitioners in other two writ petitions have also got the same force and, hence they are also entitled to get the same relief.13. in the result, all the writ petitions are allowed and the directions/requisitions drafting the services of the petitioners in all the above mentioned cases are hereby held to be improper and illegal and as such the respective directions made by the returning officers-cum-deputy commissioners of the respondent district are hereby quashed, but in the circumstances of the case, i shall make no order as to cost.

Judgment:

Prasun Kumar Deb, J.

1. This case is taken up along with C.W.J.C. Nos. 385, 482, 480, 486 and 464 of 1995 (R) as common question of law and facts are involved in all the cases.

2. The crux of dispute is with regard to the engagement of employees and officers of the various Undertakings, Corporations and Companies in the election duty as contemplated under Article 342(6) of the Constitution of India read with Section 159 of the Representation of People Act, 1951 (hereinafter referred to as 'the Act')

3. The petitioners, in the present case, are the MECON Employees Union, MECON Executive Association and some officers of MECON in their individual capacity who were requisitioned to perform election duly in the ensuing Vidhan Sabha election 1995 in the State of Bihar issued by respondent No.3, the Chief Personnel Manager, MECON, consequent to the order of the Deputy Commissioner, Ranchi-cum-Returning Officer of the district of Ranchi

4. Similarly in C.W.J.C. No, 385 of 1994 (R), the petitioners are of three categories of employees of the Central Coalfields Limited, namely, Coal India Officers Association of Central Coalfields Branch, Darbhanga House at Ranchi, Coal India Officers Association of CMPDI Limited and National Coal Organisation Employees Association and some officers/employees of the Central Coalfields Limited in their individual capacity challenging the legality and validity of requisitioning their services for the purpose of election duty vide letter dated 4.1.1995 issued by respondent No.2, District Election Officer-cum-Deputy Commissioner Ranchi.

5. In C.W.J.C. No. 464 of 1995 (R), the petitioners are Coal Mines Officers Association of Bharat Coking Coal Limited, Coal Mines Officers Association of CMPDI Limited challenging the validity of letter of requisition as mentioned above dated 6.12.1994 issued by the Deputy Commissioner-cum-District Election Officer, Dhanbad.

6. In C.W.J.C, No. 480 of 1995 (R), the petitioners are the C.C.L. Colony Karamchari Sangh Act some officers/employees of Rajrappa Area of the Central Coalfields Ltd., of the district of Hazaribagh, challenging the validity of requisitioning the service of the employees and the staff of Rajrappa Area of the Central Coalfields Limited by the District Election Officer-cum-Deputy Commissioner, Hazaribagh.

7. In C.W.J.C. No. 486 of 1994 (R), the petitioners are the employees and officers of M/s. Instrumentation Limited, a registered Society having its registered office at Kota challenging the validity of the appointment of the members/staff of the Society for the election duty under the direction/command of the Deputy Commissioner-cum-Returning Officer, Bokaro.

8. In C.W.J.C. No. 482 of 1995(R), the petitioners are Scientist and Technician of the Indian Lac Research Institute, Namkum at Ranchi, a concerned of I.C. A.R., a Society registered under the Societies Registration Act, challenging the validity of their engagement for the election duty in the ensuing election of Vidhan Sabha in the State of Bihar.

9. The grievance of the petitioners in all the cases is that they are not the employees either under the State Government or Central Government, and, as such, their services cannot be requisitioned for the purpose of election duty by the Election Commission as per the interpretation arrived at regarding 'such staff as appearing in Sub-clause (6) of Article 324 of the Constitution of India'. Their further contention is that they are also not be considered as the employees of local authority as envisaged under Section 159 of the Act whose service can be requisitioned for the purpose of election duty Local authority has been defined in Sub-section (31) of Section 3 of the General Clauses Act, 1897, which includes a Municipal Committee, District Board, Body of Port Commissioner or other authority legally entitled to or entrusted by the Government with the control or management of a municipal or local fund. This controversy came up before this Court when the State Bank of India Staff Association of Patna Unit filed C.W.J.C. No. 7815 of 1991 before this High Court and a Division Bench of this Court in S.B.I. Staff Association v. Election Commission of India (1994) 1 BUR 128 held that the employee and staff of the State Bank of India are governed by the State Bank of India Ac 1955 and that they are not the employees either of the State Government or the Central Government and as such neither the President of India nor the Governor of State ca utilise or avail their services for the election duty. It was further held by that decision that they also do not come under the local or other authority within the meaning of the 'State' as contemplated under Article 12 of the Constitution of India as envisaged under Section 159 of the Act to have their services utilised for the purpose of election duty. The Election Commission of India went against the decision of this Court before the Ape Court in Civil Appeal No. 6026 of 1993 and by considering the pros and cons of the matter upheld the decision of this High Court holding that only the employees who an neither the State Government or the Central Government cannot be requisitioned for the purpose of election duty.

10. The touch stone for decision as to who comes under the purview of the State the Central Government employees is whether they can be protected under Article 311 the Constitution or not. It has been decided by the Apex Court that the employees under the Central Government or the State Government Undertakings or Corporations are nor the Central or State Government employees as they cannot get protection under Article 311 of the Constitution. This point has been decided by the Apex Court in Dr. S.I Agrawal v. Hindustan Steel Limited : (1970)IILLJ499SC , Regarding the employees of Hindustan Steel Limited and this Court has also decided in the same in regarding the employees of Sindri Fertilizer and Chemical Limited. Reference may b made to the case of Subodh Ranjan Ghosh v. Sindri Fertilizer and Chemicals Limited : (1957)IILLJ686Pat

11. Thus it has not been settled as per the decisions of the Apex Court as mentioned above that except those employees who are directly the State Government or the other; Government employees, the other employees of the Government of India Undertakings of the State Government Undertakings or the Companies where maximum shares belonged to the State or the Central Government cannot be considered for the purpose of election duty as per Article 324(6) of the Constitution. Moreover, Companies or Undertaking where the petitioner are the employee in all the above mentioned cases cannot be include within the local authority as per Section 159 of the Act. Then comes the question as in the Hand Book for Returning Officers published by the Election Commission of India wherein the services of employees of Corporations and Undertakings are included for the purpose of election duty. This point has been also considered by this Court in S.B. Staff Association (Supra). The Election Commission is no doubt a statutory body and has got the duty for making free and fair election and for that purpose, it can formulate directions and modes for the purpose of smooth electionering, but it can only derive in power from the Constitution of India and cannot make rules or directions outside Article 324(6) of the Constitution and Section 159 of the Act and, as such, by such publication of Hand Book, there cannot be any direction drafting services of the employees for the election duty other than the State or the Central Government employees.

12. During the course of hearing, a FAX message has been shown wherein the Election Commission of India has given direction to Ranchi District to take necessary steps for exempting C.C.L./CMPDI/MECON employees from the election duty in till light of the Supreme Court's judgment. Thus, after such direction, prActically, the grievance of the petitioners in C.W.J.C. No.s 385, 335, 480 and 464 of 1995 (R) has been nullified. In the same analogy of the judgment of the Supreme Court, the grievance of the petitioners in other two Writ petitions have also got the same force and, hence they are also entitled to get the same relief.

13. In the result, all the Writ petitions are allowed and the directions/requisitions drafting the services of the petitioners in all the above mentioned cases are hereby held to be improper and illegal and as such the respective directions made by the Returning Officers-cum-Deputy Commissioners of the respondent district are hereby quashed, but in the circumstances of the case, I shall make no order as to cost.