1. Since the common facts and law are involved in these three writ petitions, they have been heard analogously and are being decided by this common order.
WPS No. 3050 of 2023 filed on 05.05.2023
2. The brief facts as reflected in WPS No. 3050 of 2023 are that the petitioner who is working as Assistant Grade-III and posted at Office of Block Education Officer, Korba vide order dated 17.02.2023 has challenged the attachment order dated 02.05.2023 and 04.05.2023 (Annexure P/1) by which the petitioner has been attached in the Office of Collector-cum-District Election Officer, Korba mainly contending that the Government has totally banned the attachment of Government servant vide order dated 04.06.2001 and in the garb of coming election for State Assembly, the impugned order attaching the petitioner vide order dated 02.05.2023 & 04.05.2023 has been issued. It has also been contended that respondent No. 4, Collector and Deputy Election Officer has no authority to issue attachment order and has prayed for quashing of order dated 02.05.2023 & 04.05.2023 (Annexure P/1).
3. The respondents/State have filed their return in WPS No. 3050 of 2023 mainly contending that the petitioner’s services were taken by election duty for upcoming Assembly Election 2023. The Commission has power to deploy the State employees accordance to their convenience for conducting the election. To substantiate this submission, the State has relief upon Section 13 (A), 13(AA), 13(B), 13(C) and Section 13(CC) of Representation of Peoples Act, 1950 (for short “the Act, 1950”). It has also been contended that any officer or employee employed in connection with the preparation, revision and correction of electoral rules, will be deemed to be on deputation with the Election Commission during which the period they are so employed. It has also been contended that the Chief Election Officer, Raipur has issued order dated 13.03.2023 to the Collector, District- Korba for preparation of electoral roll for commencing election of the year 2023-24 and as per direction of Chief Election Officer, Raipur, respondent No. 3 directed respondent No. 4 to prepare list of employees for working in the Korba District for attaching them in Election Work in Korba, accordingly, a numbers of employees mentioned in the list dated 29.03.2023, order dated 08.02.2023, 17.04.2023, 04.05.2023, 09.05.2023, 24.05.2023, 30.05.2023, 01.06.2023, 12.06.2023, 08.06.2023 (Annexure R/2) along with the petitioner was issued for discharging election duty. As such, in light of the orders, the petitioner was attached in the office of Election Officer, Korba where he joined services on 17.05.2023 thereafter without any leave application, he has not resumed duty. It has also been contended that after stay of suspension order dated 29.05.2023 passed in WPS No. 3526 of 2023, the District Election Officer sent a letter on 17.05.2023 to the petitioner to join duty, but he has not joined the place of posting. It has been contended that the petitioner is not entitled to get any relief and would pray for dismissal for the writ petition.
4. This Court vide order dated 25.08.2023 has directed the State to file affidavit of District Election Officer indicating what steps were taken by them to communicate the suspension order and under what circumstances they have forwarded the suspension order to the District Education Officer for onward communication to the petitioner.
5. In compliance of the order, the District Education Officer has filed an affidavit on 28.08.2023 narrating the factual matrix mainly contending that the Block Education Officer vide its memo dated 08.05.2023 has informed the Deputy Election Officer that in pursuance of order dated 04.05.2023, the petitioner has already been relieved for joining District Election Officer, Korba. It has also been mentioned that vide letter dated 04.05.2023, he has also prayed for medical leave. The Deputy Election Officer vide memo dated 09.05.2023 has sent the memo to the Block Education Officer raising doubt over the medical certificate and also raising authority of the Block Education Officer even after relieving the petitioner for joining how can his application can be forwarded to the Election Officer. Thereafter the District Election Officer has also issued show cause notice to the petitioner on 09.05.2023. The Block Education Officer has submitted copy of the reply given by the petitioner along with the documents. Thereafter the Election Officer has issued order dated 11.05.2023 suspending the petitioner. The suspension order was sent through the dispatch register and also forwarded to the Block Education Officer for communication to the petitioner and also obtaining acknowledgment. The petitioner has submitted reply to the show cause notice on 11.05.2023, 16.05.2023, 17.05.2023 and seek permission from the Election Officer to join duty. Thereafter in pursuance of stay order passed by the High Court on 29.05.2023, the petitioner reported for joining duty to the office of Block Education Officer which was forwarded to the District Education Officer vide memo dated 08.06.2023 and thereafter the petitioner has submitted a representation on 23.06.2023 and on 21.07.2023, the Election Officer has allowed him to join duty. In pursuance of the permission, the petitioner has reported for duty on 14.08.2023. Again the Block Education Officer has sent memo dated 14.08.2023 to relieve the petitioner as because of shortage of manpower, the work of the department is adversely affected.
6. The petitioner has also filed an application under Section 340 read with Section 195 of the Cr.P.C. for initiating action against the Election Officer who has filed affidavit as he has attached false documents before this Court.
7. The petitioner has filed rejoinder to the return on 04.07.2023 mainly contending that since the notification for election is not issued, therefore, it is well settled position of law that without notification of election, no right is conferred on the Election Commission to attach the employee.
WPS No. 3300 of 2023 filed on 17.05.2023
8. The brief facts as reflected in WPS No. 3300 of 2023 are that the petitioner who is working as Assistant Grade-III and posted at Office of Block Education Officer, Korba vide order dated 17.02.2023 has challenged the attachment order dated 02.05.2023 and 04.05.2023 (Annexure P/1) by which the petitioner has been attached in the Office of Collector-cum-District Election Officer, Korba and has also prayed that respondents No. 3, 4 & 6 be kindly directed to act according to the leave rules. It has also been contended that as per circular dated 29.01.2011, employees who have been allotted statistical work of the department, they should not be transferred as it will have adverse effect over functioning of the department. It has also been contended that from bare perusal of Annexure P/1, it is quite vivid that the petitioner is working in statistical department, therefore, he should not be attached. It has also been contended that as per the circular dated 01.07.2009, if an employee is required for preparation of voter list then services of Janpad Panchayat and Revenue Department should be taken. It has also been contended that the petitioner has submitted leave application to the Block Education Officer, who has sent it to respondent No. 3 & 4, they have not taken any decision but issued show cause notice to the petitioner vide (Annexure P/9), which is also contrary to the law.
9. The State has filed reply reiterating the same stand taken in WPS No. 3050 of 2023, denying all adverse allegations made against them and would pray for dismissal of the writ petition.
WPS No. 3526 of 2023 filed on 18.07.2023
10. The brief facts as reflected in WPS No. 3526 of 2023 are that the petitioner who is working as Assistant Grade-III and posted at Office of Block Education Officer, Korba vide order dated 17.02.2023 has challenged the attachment order dated 02.05.2023 and 04.05.2023 (Annexure P/1) by which the petitioner has been attached in the Office of Collector-cum-District Election Officer, Korba and has also prayed that suspension order dated 11.05.2023 issued by Collector-cum-District Election Officer be kindly set aside on the count that suspension order has been issued without jurisdiction as respondent No. 3 is neither appointing authority nor the employer of the petitioner. It has also been contended that the show cause notice dated 11.05.2023 was issued to him and without waiting for reply, the suspension order dated 11.05.2023 has been passed directing the petitioner posting him at Tahsil Officer Pasan, which is not under the control of Education Department. It has also been contended that the petitioner will not be able to get salary as last pay certificate cannot be transferred to Revenue Department as the petitioner is employee of Education Department. To substantiate his submission, the petitioner has referred to various circulars dated 31.07.2006, 11.08.2015, 19.06.1997, 22.11.1984, 21.01.1986.
11. The State has filed reply reiterating the same stand taken in WPS No. 3050 of 2023, denying the all the adverse allegations made against them mainly contending that the District Election Officer has issued letter dated 08.06.2023 to the petitioner to join duty within 48 hours but even then he did not join duty and would pray for dismissal of the writ petition.
12. The petitioner has filed rejoinder reiterating the stand taken by him in WPS No. 3050 of 2023. It has also been contended that the suspension order is deemed to have been revoked as no charge-sheet has been issued to him even after lapse of 45 days and would pray for grant of salary for the months of May & June, 2023.
13. This Court while hearing WPS No. 3050 of 2023 has rejected the prayer of the petitioner for interim relief vide order dated 29.05.2023 and subsequently, the interim application for stay of suspension was also rejected. Later on in WPS No. 3526 of 2023, this Court has stayed the impugned suspension order 11.05.2023.
14. Learned counsel for the petitioner in his written synopsis while referring to the factual matrix of the case has stated that the respondents have filed forged, fabricated dispatch register as well as receipt register, thus, an action under Section 340 read with Section 195 of the Cr.P.C. is required to be initiated and would submit that the attachment order and suspension order are without jurisdiction and the same deserve to be set aside by this Court.
15. The State has submitted written synopsis mainly contending that the Election Commission of India has already issued various circulars for upcoming election, as such, it cannot be said that the petitioner’s duty was not required for election purposes. He would also refer to circular dated 16.03.2023 issued by the Election Commission of India by which preparation for electoral rolls have been issued as per the circular dated 12.07.2022. This circular further provides updation of electoral rolls etc. This circular further provides timely disposal of assignment like disposal of advance application, claims and objections by 10th April, preparation of Form No. 9, 10, 11, 11A & 11B, and its disposal by 30th April. It has been further contended that during election duty, the officer/employee engaged in election duty will be on deputation with the Election Commission and attachment can be issued to meet out exigency of work. As such, all the employees who are deployed in election work will be on deputation with the Election Commission of India and their assignment will start from preparation of voter list. As such, the contentions raised by learned counsel for the petitioner that the employees cannot be said to be on election duty unless the election is notified, is far from truth and would pray for dismissal of the writ petition.
16. I have heard learned counsel for the parties and perused the documents placed on record.
17. On pleading of the parties, the points emerged for determination of this Court are:-
(1) Whether the action of respondent No. 3, 4 was justified in attaching the petitioner in the office of Election Commission of India for preparation of voters list?
(2) Whether the petitioner can be said to be on election duty at the time of preparation of voter list and will be on deputation with the Election Commission of India empowering the Election Commission of India to suspend the employee?
(3) When order of suspension will be made effective if it has been communicated or it is dispatched from the authority who has passed the order of suspension?
Point No. 1
18. Learned counsel for the petitioner would submit that respondents No. 3 & 4 cannot issue order of attachment of the petitioner as attachment has been totally banned by the State Government through its circular dated 04.06.2001 (Annexure P/3) therefore, the attachment order dated 04.05.2023 is bad in law. Opposing the submission, learned Deputy Advocate General for the State would submit that the petitioner has not been attached in the same department, therefore, the circular dated 04.06.2001 is not applicable to the present facts and circumstances of the case. He would submit that not only the petitioner but other employees mentioned in Annexure R/2 so many employees have been attached for discharging the election duty and would pray for rejection of this submission.
19. It is well settled factual position that the election duty is essential duties for democratic setup of the country and to execute free and fair election, a large number of manpower is required. The Election Commission has no sufficient manpower, therefore, it is necessary for the Election Commission to have employees of various Government departments to execute the election duty. Thus, the employees are being attached temporarily for completion of election proceedings. As such, it cannot be said that respondents No. 3 & 4 have no power to attach employee. This attachment order was for specific period and for specific work which is need of hour which cannot be stopped for any reason. The record of the case would demonstrate that a large number of employees were attached in the office of Election Commission, Korba, thus, it cannot be said that only the petitioner was single out for election duty or he was only discriminated. All the employees who are required for conduction of election were attached uniformly. As such, the order dated 02.05.2023 and 04.05.2023 (Annexure P/1) are legal and justified.
20. Further contention of learned counsel for the petitioner that since no notification was issued on 04.05.2023 for conducting election, therefore, it cannot be said that the petitioner’s duty was involved in election work as such, also the attachment order is bad-in-law. This contention is incorrect submission of fact as according to Section 2(e) of the Act, 1951, which defines Elector as under:-
“In relation to a constituency means a person whose name is entered in the elector of that constituency for the time being enforced and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950.”
21. Thus, it is quite vivid that the list of elector is prime work for conducting free and fair election and unless and until the electoral roll is prepared, the election cannot be conducted. Section 13(B) of the Act, 1950 defines Electoral Registration Officers and Section 13 (C) of the Act, 1950 defines Assistant Electoral Registration Officers. Section (CC) of the Act, 1950 provides that Chief Electoral Officers, District Election Officers etc. deemed to be on a deputation to Election Commission of India. Section 13(B), 13(C) 13 (CC) of the Act, 1950 are reproduced below:-
“13B. Electoral registration officers.- (1) The electoral roll for each parliamentary constituency in the State of Jammu and Kashmir or in a Union territory not having a Legislative Assembly, each assembly constituency and each Council constituency shall be prepared and revised by an electoral registration officer who shall be such officer of Government or of a local authority as the Election Commission may, in consultation with the Government of the State in which the constituency is situated, designate or nominate in this behalf.
(2) An electoral registration officer may, subject to any prescribed restrictions, employ such persons as he thinks fit for the preparation and revision of the electoral roll for the constituency.
13C. Assistant electoral registration officers.- (1) The Election Commission may appoint one or more persons as assistant electoral registration officers to assist any electoral registration officer in the performance of his functions.
(2) Every assistant electoral registration officer shall, subject to the control of the electoral registration officer, be competent to perform all or any of the functions of the electoral registration officer, be competent to perform all or any of the functions of the electoral registration officer.
13CC. Chief Electoral Officers, District Election Officers, etc., deemed to be on deputation to Election Commission .- The officers referred to in this Part and any other officer or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of all elections shall be deemed to be on deputation to the Election Commission for the period during which they are so employed and such officers and staff shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.”
22. Thus, from the above provisions of the Act, 1950, it is quite vivid that the petitioner’s duty was assigned in preparation of Electoral which is prime function for conducting free and fair election was deployed in the office of Electoral Registration Officer to assist them and he is on deputation with the Election Commission of India. Thus, submission made by learned counsel for the petitioner that the petitioner's duty was not involved in election duty as no notification was issued deserves to be rejected and accordingly, it is rejected. Thus, the petition challenging the attachment order deserves to be dismissed. Accordingly, Point No. 1 is determined against the petitioner.
Point No. 2
23. The petitioner has challenged the suspension order dated 11.05.2023 in WPS No. 3526 of 2023 on the count that since the petitioner has not joined the election duty therefore, the District Election Officer has no authority to suspend the petitioner and would pray for quashing of the suspension order. Learned State counsel opposing the submission would submit that since the petitioner was attached vide order dated 04.05.2023, was not joining on the attached post and has deliberately not followed the order of the District Election Officer, thus, he has shown dereliction towards duty assigned to him, therefore, the Election Commission of India has rightly suspended the petitioner. It is no matter whether he has joined or not and would pray for dismissal of the writ petition.
24. The record of the case would show that the petitioner was attached on 04.05.2023 and he was directed to joint duty immediately at District Election Office, Korba immediately which he has not joined till 11.05.2023. Thus, he has violated the order of the Election Commission, therefore, the District Election Officer has not committed any illegality in suspending the petitioner. Even otherwise, the law with regard to the power of Election Commission to suspend the officer in dereliction in discharging the election duty is no more res integra as Hon’ble the Supreme Court in case of The Election Commission of India Vs. Union of India in WP (C) No. 606/1993 (decided on 21.09.2000) reported in 2000 (7) SCALE 368 has held as under:-
“ORDER
I.A. No. 5 of 2000 in W.P. (C) No. 606 of 1993
1. As between the Election Commission of India and the Union of India (the Petitioner and the first Respondent to the writ petition, it is agreed that the writ petition be disposed of in terms of the Terms of Settlement recorded in paragraph (3) of the interim application.
2. Learned Counsel for the election Commission and the Union of India states that the States of Tripura, Maharashtra, TamilNadu, Andhra Pradesh and Mizoram have accepted these terms in toto. Insofar as other States are concerned, there is some reservation either in respect of one or the other term or altogether.
3. The writ petition is disposed of in terms of aforesaid Terms of Settlements. As against States other than Respondents 4, 6 and 7, the writ petition is allowed to be withdrawn and the issue is left open to be agitated in the appropriated proceedings, if raised.
S.L.P. (C) No. 12481 of 1993.
4. Learned Counsel for the Election Commission of India (Petitioner states that the SLP has become anfractuous. It is disposed of as such.
S.L.P. (C) No. 12721 of 1993
5. Learned Counsel states that the issue involved in the original writ petition has been settled. On the application of learned Counsel for the Petitioner, the special petition is dismissed as withdrawn.
T.P. (C) No. 772 of 1993:
6. The transfer petition relating to the afore-mentioned writ petition, therefore, does not survive and is dismissed as withdrawn.
T.P. (C) No. 774-75 of 1993:
7. Learned Counsel for the Election Commission of India (Petitioner) states that these transfer petitions have become anfractuous. They are disposed of as such.
T. (C) No. 39 of 1998.
8. The Petitioner in person is not present despite notice. In any event, the issue is now settled by the Terms of Settlement between the Election Commission of India and the Union of India in Writ petition (c) No. 606 of 1993. The transferred case is, therefore dismissed.”
25. Hon’ble Division Bench of this Court relying upon the said judgment of Hon’ble the Supreme Court in case of The Election Commissioner of India Vs. State of C.G. reported in 2003 (2) C.G.L.J. 301 has also held that jurisdiction of the Election Commission of India over officers under employment of Union of India and Governments of the States, Union Territories is within the jurisdiction of Election Commission of India in view of the settlement arrived at between the Election Commission of India, Union of India and 9 other States which were parties to the Writ Petition (Civil) No. 606 of 1993 filed by the Election Commission of India before Hon'ble the Supreme Court under Article 32 of the Constitution of India. Hon’ble the Division Bench has held as under:-
“4. It is submitted that the question of disciplinary jurisdiction of the Election Commission of India over officers under employment of Union of India and Governments of the States, Union Territories was the subject matter of Writ Petition (Civil) No. 606 of 1993 filed by the Election Commission of India before Hon''ble the Supreme Court under Article 32 of the Constitution of India. During pendency of the writ petition with a view to resolving certain differences that had arisen between the Election Commission of India and Union of India discussions were held between the said parties as well as nine other State Governments which were parties to the writ petition. Consequent thereto, certain agreed terms of settlement were arrived at between the Election Commission of India and the Union of India as under:
The disciplinary functions of the Election Commission over officers, staff and police deputed to perform election duties shall extend to -
(a) Suspending any officer/official/police personnel for insubordination or dereliction of duty;
(b) Substituting any officer/official/police personnel by another such person, and returning the substituted individual to the cadre to which he belongs, with appropriate report on his conduct''
(c) Making recommendation to the competent authority, for taking disciplinary action, for any act of insubordination or dereliction of duty while on election duty. Such recommendation shall be promptly acted upon by the disciplinary authority, and action taken will be communicated to the Election Commission; within a period of 6 months from the date of the Election Commission''s recommendation.
(d) The Government of India will advise the State Governments that they too should follow the above principles and decisions, since a large number of election officials are under their administrative control.”
26. Thus, in view of settlement as stated above, the power to suspend any officers/officials/police/ personnel for insubordination or dereliction of duty, lies with the Election Commission of India. Since the petitioner has not reported for duty immediately on 04.05.2023, therefore, he was rightly suspended by District Election Officer, Korba, as such, there is no illegality or irregularity in the order dated 11.05.2023, which warrants interference by this Court. Thus, Point No. 2 is answered against the petitioner.
Point No. 3
27. Learned counsel for the petitioner would submit that the suspension order was not communicated and forged documents have been filed by the respondents to contend that the suspension order was not communicated to the petitioner. This submission is incorrect submission of facts in view of well settled position of law that once the suspension order is passed by the competent authority and it is dispatched, it is not relevant whether it is served upon or not. This has been well settled by Hon’ble the Supreme Court in case of State of Punjab Vs. Khemi Ram reported in 1969 (3) SCC 28. Hon’ble the Supreme Court has in paragraph 17 as under:-
“17. The question then is whether communicating the order means its actual receipt by the concerned Government servant. The order of suspension in question was published in the Gazette though that was after the date when the respondent was to retire. But the point is whether it was communicated to him before that date. The ordinary meaning of the word 'communicate' is to impart, confer or transmit information. (cf. Shorter Oxford English Dictionary, Vol. 1, p. 352). As already stated, telegrams dated July 31, and August 2, 1958 were despatched to the respondent at the address given by him where communications by Government should be despatched. Both the telegrams transmitted or imparted information to the respondent that he was suspended from service with effect from August 2, 1958. It may. be that he actually received them in or about the middle of August 1958 after the date of his retirement. But how can it be said that the information about his having been suspended was not im-parted or transmitted to him on July 31 and August 2, 1958, i.e... before August 4, 1958 when he would have retired ? It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when lie actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a Government servant to effectively thwart an order by avoiding receipt of it by one method or the. other till after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus. may go away from the address given by him for service of such orders, or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a. meaning of the word 'communication' ought not to be given unless the provision in question expressly so provides. Actual knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the. decision in The State of Punjab v. Amar Singh (1) contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of' suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid.”
28. Thus, it is quite vivid that suspension order was dispatched from the office of District Election Officer, Korba therefore, it has to be given effect and once the suspension order has been issued, it cannot be stayed as it is made effective and also considering the fact that the petitioner was suspended for dereliction of the duty to join with District Election Officer, Korba, therefore, he has been rightly suspended by respondent No. 3 & 4. As such, the interim order passed by this Court also deserves to be vacated for three reasons firstly, the suspension order has been issued by the competent authority, secondly once it has been issued, it is made effective and thirdly, the petitioner has alternate efficacious remedy of filing appeal under Rule 23(iii) of the Chhattisgarh (Classification Control & Appeal) Rules, 1966, which provides remedy of filing appeal, therefore, it cannot be stayed. Thus, Point No. 3 also deserves to be answered against the petitioner.
29. Considering the above stated factual, legal, jurisdiction of the Election Commission to suspend the officer/employee and power of the Election Commission for attaching the employee, I am of the view that WPS No. 3050 of 2023 challenging the attachment order dated 02.05.2023 & 04.05.2023 (Annexure P/1), WPS No. 3025 of 2023 challenging suspension order dated 11.05.2023 (Annexure P/1), WPS No. 3300 of 2023 challenging the order dated 04.05.2023 (Annexure P/1) and for issuance of direction to respondents No. 3, 4 & 6 to act according to Leave Rules, 2010 deserve to be dismissed and accordingly, it is dismissed. The interim order passed by this Court in WPS No. 3526 of 2023 deserves to be vacated and it is vacated.
30. It is also well settled that once the suspension order is issued, it is not required whether the same has been communicated or dispatch, therefore, the application filed under Section 340 read with Section 195 of the Cr.P.C. is also liable to be rejected and accordingly, it is rejected.
