S.K. Tripathi Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by himorderdipak misra, j.1. invoking the extra-ordinary jurisdiction of this court under articles 226 and 227 of the constitution of india the petitioner has prayed for issue of a writ of certiorari for quashment of order dated 12-5-2009, annexure p-1, whereby the commissioner, narmadapuram division, hoshangabad, the 2nd respondent herein, has placed him under suspension in exercise of powers under rule 9 of the m.p. civil services (classification, control and appeal) rules, 1966 (for short 'the 1966 rules').2. the facts which are imperative to be stated are that the petitioner, district education officer, was placed under election duty by order of the competent authority dated 30-4-2009 as per annexure p-6. while he was assigned the election duty, the order of suspension came to be passed by the respondent no. 2 on 12-5-2009.3. though many an averment has been putforth in the petition criticizing the order of suspension, mr. sujoy paul, learned counsel for the petitioner in course of hearing restricted his submission to a singular ground that the petitioner while on election duty could not have been suspended by the respondent no. 2. to bolster the said submission he has commended me to a division bench decision rendered in umesh singh yadav v. collector/district returning officer, balaghat 1992 mplj 173.4. mr. v.k. shukla, learned deputy advocate general combating the aforesaid submission contended that the petitioner is a civil servant and his service conditions are controlled by 1966 rules and, therefore, the respondent no. 2 had the jurisdiction to put him under suspension, despite the factum that he was placed on election duty during the said period. it is also urged by him that the decision rendered in umesh singh yadav (supra), is distinguishable as controversy related to different set of facts altogether.5. at the very outset it is condign to state that there has been no dispute at the bar as regards the fact that the petitioner was placed on election duty. it is also not disputed that his services were requisitioned by the competent authority, incharge of election.6. presently to the rivalized submissions. to appreciate the rival submissions raised at the bar it is apposite to refer to section 28-a of the representation of people act, 1951, which reads as under:28-a. 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 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.7. be it noted, the division bench in umesh singh (supra), after reproducing the said provision has expressed the opinion as follows: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.8. submission of mr. shukla is that in the said case the district returning officer has placed the petitioner therein under suspension and also issued the charge-sheet. in that factual matrix, the division bench has expressed the opinion that it is the election commission who could have taken suitable action under section 28-a of the aforesaid act and not the returning officer.9. the distinction which is sought to be made by mr. shukla, in my considered opinion, is really not of any assistance to him. what has been stated by the division bench is that the power vests in the election commission for taking action against 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 in respect of various officers working during election. the term 'only' is of immense significance. the innovative submission of mr. shukla that the said decision was rendered only in context of returning officer and election commission is noted to be rejected inasmuch as the bench has really stated that the power exclusively vests with the election commission. in the case at hand, the order of suspension has been passed by the respondent no. 2. he may be the disciplinary authority under the 1966 rules but when the petitioner was on election duty there is deemed deputation with the election commission and, therefore, the provision contained in section 28-a would be applicable on all fours. therefore, the respondent no. 2 could not have passed the order as has been passed by him under annexure p-1 as the election duty was in continuance.10. in view of the aforesaid analysis the order contained in annexure p-1 suspending the petitioner has to pave the path of extinction and accordingly, it is hereby lanceted. the petitioner would be deemed to be in service and would be entitled to all consequential benefits including the salary. needless to emphasize, as the election duty is over in praesenti, it will be open to the respondents to pass appropriate orders keeping in view the law in the field.11. ex consequenti, the writ petition is allowed to the extent indicated above. there shall be no order as to costs.

Judgment:
ORDER

Dipak Misra, J.

1. Invoking the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashment of order dated 12-5-2009, Annexure P-1, whereby the Commissioner, Narmadapuram Division, Hoshangabad, the 2nd respondent herein, has placed him under suspension in exercise of powers under Rule 9 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short 'the 1966 Rules').

2. The facts which are imperative to be stated are that the petitioner, District Education Officer, was placed under election duty by order of the Competent Authority dated 30-4-2009 as per Annexure P-6. While he was assigned the election duty, the order of suspension came to be passed by the respondent No. 2 on 12-5-2009.

3. Though many an averment has been putforth in the petition criticizing the order of suspension, Mr. Sujoy Paul, learned Counsel for the petitioner in course of hearing restricted his submission to a singular ground that the petitioner while on election duty could not have been suspended by the respondent No. 2. To bolster the said submission he has commended me to a Division Bench decision rendered in Umesh Singh Yadav v. Collector/District Returning Officer, Balaghat 1992 MPLJ 173.

4. Mr. V.K. Shukla, learned Deputy Advocate General combating the aforesaid submission contended that the petitioner is a civil servant and his service conditions are controlled by 1966 Rules and, therefore, the respondent No. 2 had the jurisdiction to put him under suspension, despite the factum that he was placed on election duty during the said period. It is also urged by him that the decision rendered in Umesh Singh Yadav (supra), is distinguishable as controversy related to different set of facts altogether.

5. At the very outset it is condign to state that there has been no dispute at the bar as regards the fact that the petitioner was placed on election duty. It is also not disputed that his services were requisitioned by the Competent Authority, incharge of Election.

6. Presently to the rivalized submissions. To appreciate the rival submissions raised at the bar it is apposite to refer to Section 28-A of the Representation of People Act, 1951, which reads as under:

28-A. 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 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.

7. Be it noted, the Division Bench in Umesh Singh (supra), after reproducing the said provision has expressed the opinion as follows:

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.

8. Submission of Mr. Shukla is that in the said case the District Returning Officer has placed the petitioner therein under suspension and also issued the charge-sheet. In that factual matrix, the Division Bench has expressed the opinion that it is the Election Commission who could have taken suitable action under Section 28-A of the aforesaid Act and not the Returning Officer.

9. The distinction which is sought to be made by Mr. Shukla, in my considered opinion, is really not of any assistance to him. What has been stated by the Division Bench is that the power vests in the Election Commission for taking action against 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 in respect of various officers working during election. The term 'only' is of immense significance. The innovative submission of Mr. Shukla that the said decision was rendered only in context of Returning Officer and Election Commission is noted to be rejected inasmuch as the Bench has really stated that the power exclusively vests with the Election Commission. In the case at hand, the order of suspension has been passed by the respondent No. 2. He may be the Disciplinary Authority under the 1966 Rules but when the petitioner was on election duty there is deemed deputation with the Election Commission and, therefore, the provision contained in Section 28-A would be applicable on all fours. Therefore, the respondent No. 2 could not have passed the order as has been passed by him under Annexure P-1 as the election duty was in continuance.

10. In view of the aforesaid analysis the order contained in Annexure P-1 suspending the petitioner has to pave the path of extinction and accordingly, it is hereby lanceted. The petitioner would be deemed to be in service and would be entitled to all consequential benefits including the salary. Needless to emphasize, as the election duty is over in praesenti, it will be open to the respondents to pass appropriate orders keeping in view the law in the field.

11. Ex consequenti, the writ petition is allowed to the extent indicated above. There shall be no order as to costs.