Karnataka Bank Limited Vs. the Chief Electoral Officer for Karnataka and ors. - Court Judgment

Excerpt:
- section 159: [n.k.patil,j]election duty lok sabha elections, 2009 - staff working in private sector banks held, drafting of such bank employees on election duty may be minimized and only in constituency where sufficient number of government employees are not available and/or in emergent circumstances such as strikes etc. - 2. petitioner in this petition has sought for a declaration to declare that the staff in private sector bank like the petitioner are outside the purview of section 159 of the representation of the people act, 1951. further, petitioner has sought for quashing the notice dated 13th march, 2009, issued by the tahsildar, mangalore produced at annexure-al, notice dated 12th march, 2009, issued by the tahsildar, ramanagara taluk produced as annexure-a2, and the notice.....ordern.k. patil, j.1. though this petition is listed for preliminary hearing, with the consent of the learned counsel for the parties, the matter is taken up for final hearing and is disposed of in view of the urgency in the matter.2. petitioner in this petition has sought for a declaration to declare that the staff in private sector bank like the petitioner are outside the purview of section 159 of the representation of the people act, 1951. further, petitioner has sought for quashing the notice dated 13th march, 2009, issued by the tahsildar, mangalore produced at annexure-al, notice dated 12th march, 2009, issued by the tahsildar, ramanagara taluk produced as annexure-a2, and the notice dated 31st january, 2009, issued by the tahsildar, hunsur taluk produced as annexure-a3 and all.....

Judgment:
ORDER

N.K. Patil, J.

1. Though this petition is listed for preliminary hearing, with the consent of the learned Counsel for the parties, the matter is taken up for final hearing and is disposed of in view of the urgency in the matter.

2. Petitioner in this petition has sought for a declaration to declare that the staff in private sector Bank like the petitioner are outside the purview of Section 159 of the Representation of the People Act, 1951. Further, petitioner has sought for quashing the notice dated 13th March, 2009, issued by the Tahsildar, Mangalore produced at Annexure-Al, notice dated 12th March, 2009, issued by the Tahsildar, Ramanagara Taluk produced as Annexure-A2, and the notice dated 31st January, 2009, issued by the Tahsildar, Hunsur Taluk produced as Annexure-A3 and all farther proceedings pursuant to the same.

3. Petitioner in this petition is a Banking Company, incorporated under Companies Act, 1913 and carrying on its Banking activities throughout the country and is not a Nationalised Bank, but is a Scheduled Bank in the private sector. It is stated that, the petitioner-Bank has been carrying on its activities and rendering its services to the public in general and its customers, in particular as per the norms and bye-laws issued by the Reserve Bank vi India. Be that as it may, in view of the ensuing Lok Sabha elections scheduled to be held during the months of April-May 2009 in the State of Karnataka, the petitioner, to their shock and surprise, viz. The General Managers of the petitioner-Bank pertaining to Mangalore Taluk, Ramanagara Taluk and Chilkund, Hunsur Taluk have received communications respectively dated 13th March, 2009 from the Tahsildar, Mangalore Taluk, dated 12th March, 2009 from the Tahsildar, Ramanagaram Taluk and dated 31st January, 2009 from the Tahsildar, Hunsur Taluk, seeking particulars of the officers and staff of the petitioner-Bank in order to utilise their services for election duty for smooth conduct of Lok Sabha Elections, 2009.

4. It is the specific case of the petitioner-Bank that, the provisions of Section 159 of the Representation of the People Act, 1951 (hereinafter for short called as the 'Act') do not apply to the Banks in the private sector, like the petitioner-Bank. The Deputy General Manager (HR and IR) of petitioner-Bank at Mangalore Taluk has even brought the said fact to the notice of the concerned Tahsildar stating that, the petitioner-Bank is just running with adequate staff and that, they are also not covered under Section 159 of the Act. Further, the said officer of the petitioner-Bank has requested the Tahsildar to avoid the posting of their employees to election duties. The petitioner-Bank are now apprehending that, the respondents may initiate proceedings against the petitioner-Bank or its General Managers of the three Taluks, referred above. Therefore, petitioner-Bank is constrained to invoke the extraordinary jurisdiction of this Court as envisaged under Articles 226 and 227 of the Constitution of India seeking appropriate reliefs as stated supra.

5. The principal submission canvassed by learned Senior Counsel appearing for petitioner-Bank is that, petitioner-Bank is purely a private sector Bank and therefore, the provisions of the Section 159 of the Act is not applicable to it. To withstand the said submission, he placed reliance on the judgment of the Supreme Court in the case of Election Commission of India v. State Bank of India, Patna and Ors. : AIR 1995 SC 1078 : 1995 Supp. (2) SCC 13 wherein the Apex Court has held that, the private sector Banks do not answer the definition of the local authority and hence, it was impermissible for the authorities to requisition the services of the employees working in Banks. Therefore, he submitted that, the action of respondents, viz., the respective Tahsildars of Mangalore, Ramanagaram and Hunsur Taluks in issuing the impugned notices are without authority of law and beyond the scope of the relevant provision of the Act and hence the same are liable to be set aside.

6. Per contra, learned Government Pleader appearing for respondents 3 to 5, after collecting necessary information from the Competent Authority submitted that, in pursuance of the amendment to Section 159 of the Act, the Election Commission by its communication dated 11th August, 1998 bearing No. 3/1/98/J.S.II addressed to the CEOs of all the States and Union Territories has issued instruction S1. No. 27 of the Election Machinery wherein, Clause (4) stipulates that, in accordance with the amended provision of Section 159 of the Representation of the People Act, 1951, employees of local authorities, universities, Nationalised Banks, Life Insurance Corporation, Government undertakings etc., can now be requisitioned for deployment on election duties. It is however, reiterated once again that Bank employees may be drafted on election duty to the minimum extent possible, only in a constituency where sufficient number of Government employees are not available and/or in emergent circumstances such as strikes etc., by the Government employees. Care should be taken to see that normal functioning of the Banks are not interrupted.

7. Having heard the learned Senior Counsel appearing for petitioner and the learned Government Pleader appearing for respondents 3 to 5, after perusal of the prayer sought for by petitioner and after considering the contentions of both the parties as stated above, the only question that arise for consideration in this petition is as to:

Whether the impugned notices issued by respondents 3 to 5 calling for particulars of the officers and staff of the petitioner-Bank for utilising their services for election duty are sustainable in law?

After careful perusal of the Instruction S1. No. 27 of Election Machinery, the communication issued by the Election Commission dated 11th August, 1998 bearing No. 3/1/98 J.S. II addressed to the CEOs of all the States and Union Territories, regarding the requisitioning of staff for election duties. Amendment of Section 159 of the Act, copy of which is produced before the Court, it is crystal clear from Clause (4) of the said communication that, as per the amended provision of Section 159 of the Act, employees of local authorities, universities, Nationalised Banks, Life Insurance Corporation, Government undertakings etc., can now be requisitioned for deployment on election duties. It is however, reiterated once again that Bank employees may be drafted on election duty to the minimum extent possible, only in a constituency where sufficient number of Government employees are not available and/or in emergent circumstances such as strikes etc., by the Government employees. Care should be taken to see that normal functioning of the Banks are not interrupted.

8. Therefore, it is amply clear that, as per Clause (4) of the Instruction S1. No. 27 issued by the Election Commission, the drafting of such Bank employees on election duty may be minimised and only in a constituency where sufficient number of Government employees are not available and/or in emergent circumstances such as strikes etc. Therefore, the impugned notices issued by respondents 3 to 5 exercising the power under Section 159 of the Act without cross-verification or without taking clarification from the jurisdictional Competent Authorities of the Election Commission of India, are unsustainable as they are issued without proper application of mind and without through verification of the necessary amended relevant provision of the Act. Therefore, at any stretch of imagination, the impugned notices issued by the Competent Authorities are highly unsustainable in law.

9. Having regard to the facts and circumstances of the case, taking into consideration the relevant factors, the writ petition filed by petitioner succeeds and is disposed of as follows.:

(i) The writ petition filed by petitioner is allowed in part;

(ii) The impugned communications dated 13th March, 2009 bearing No. ELN(3) CR.3/2008-09 issued by the Tahsildar, Mangalore Taluk vide Annexure-Al, dated 12th March, 2009 bearing No. ELN.CR.50/2008-09 issued by the Tahsildar, Ramanagara Taluk vide Annexure-A2 and dated 31st January, 2009 bearing No. ELN.44/2008-09 issued by the Tahsildar, Hunsur Taluk vide Annexure-A3 are all hereby set aside.