Now it is well settled that resignation from service is a
bilateral act. A person may have a right to resign but that resignation
is always subject to acceptance. An employer has a right to refuse an
employee the right to resign for various reasons. Persons, holding
responsible post in public administration, cannot simply resign and
walk away. They have certain duties. It is also a matter of contract
where notwithstanding the right to resign, that is dependent upon its
acceptance. When departmental proceedings have been initiated, an
order of punishment, which may have different ramification, can be
passed only so long as master-servant relationship exists.
There
cannot be any order of punishment in a departmental proceeding if the
master-servant relationship comes to an end. If an employee tenders
his resignation then pending disciplinary proceedings would become
meaningless if resignation is accepted without concluding the
disciplinary proceedings. That cannot be because, as noted above,
disciplinary proceedings can come to an end only in three manners, as
indicated above.
If the resignation is accepted then no effective
punishment can be given. Thus, before resignation can be accepted,
the authorities are bound to find out if any disciplinary proceeding is
pending or not and if those proceedings are pending, they have first to
be concluded one way or the other.
Once all departmental
proceedings are concluded only then an authority, competent to accept
the resignation, can accept the same
PATNA HIGH COURT
Election Petition No 4 of 2011
Pramod Singh Chandravanshi,
.... .... Petitioner
Versus
Sri Som Prakash Singh,
CORAM:
HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH
ORAL JUDGMENT
Citation;AIR 2014 Patna 156
Dated;25th of April, 2014,
By this election petition, the election petitioner has
challenged the election of the sole respondent who has been declared
elected as a Member of the 15th Bihar Legislative Assembly from 220
Obra General Assembly Constituency for which the last date for filing
nomination paper was 03.11.2010. The date of scrutiny of nomination
paper was 04.11.2010. The last date for withdrawal of candidature
was 06.11.2010.
The voting had taken place on 20.11.2010 and
counting was done and results declared on 24.11.2010.
2 The election petitioner was the official candidate of Janta
Dal (United). He had been elected from the said Constituency on
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
2
earlier occasion as well. He lost to the sole respondent who was the
independent candidate.
3
The solitary ground on which the election of sole
respondent has been challenged is that the respondent was disqualified
in terms of Article 191 (1) (a) of the Constitution of India as he was in
Government employment when his nomination paper was accepted
after scrutiny and when the results were declared. In fact, it is alleged
that technically, he continues to be in Government employment even
today.
4
In the election petition, it is alleged that sole respondent
was selected in the Police Service in 1994 and, at the relevant time,
was Sub Inspector (SI) of Police.
At the time of filing of his
nomination paper, he did not disclose whether he was in service or
not. In fact, at the time of scrutiny, one Satya Narain Singh, the
official candidate for Rastriya Janta Dal (RJD) raised an objection that
is on 04.11.2010 specifically urging that the sole respondent was SI.
The sole respondent was issued notice by the Returning Officer and
the sole respondent immediately filed his reply stating that his
resignation from Police Service had been accepted by the Deputy
Inspector General (DIG) of Police, Central Range, Patna in the
afternoon of 03.11.2010 whereafter he had filed his nomination. A
fax copy of the order of DIG accepting the resignation of the sole
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
3
respondent was filed.
Accordingly, the Returning Officer, on
04.11.2010, accepted the nomination paper, as filed by the sole
respondent on 03.11.2010, to be valid. Upon elections being held, the
sole respondent was declared successful as a winning candidate. The
election petitioner was the first losing candidate. It is, therefore,
urged by the election petitioner that as the nomination of the winning
candidate was wrongly accepted, his election be declared to be void as
he was not qualified or rather he was disqualified under Article 191
(1) (a) of the Constitution of India. The consequence would be not to
declare election petitioner as elected but to order reelection.
5 It is alleged in the election petition that the manner in
which DIG accepted the resignation was wrong both on account of
lack of jurisdiction and procedurally.
It is further alleged in the
election petition that there were other departmental proceedings
pending in the district of Aurangabad, Bihar where the sole
respondent was posted as SI and those departmental proceedings were
still pending and had not been concluded.
That being so, the
resignation, as tendered by the sole respondent, should not and could
not have been accepted.
6 In the written statement filed by the sole respondent, the
stand taken was that the sole respondent had contemplated for
contesting elections long before the elections were announced. He
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
4
tendered his resignation and requested the DIG, Central Range, Patna
that the departmental proceeding be directed to be concluded at an
early date so that his resignation could be accepted and he is not
prejudiced in any manner. Accordingly, directions were issued and
departmental proceedings were concluded.
Upon this information
being received, DIG, Central Range, Patna accepted sole respondent’s
resignation on 03.11.2010, a copy of which was later received by the
sole respondent in the afternoon of 04.11.2010 and it is, after the
acceptance of resignation on 03.11.2010, that he filed his second
nomination, the first nomination paper by the sole respondent having
been filed on 02.11.2010. It is, thus, the stand of the sole respondent
that the resignation having been accepted by the DIG before he filed
his second nomination, he did not suffer from any constitutional
disability to contest the elections.
7
In reply to paragraph 34 of the plaint, which clearly
asserted that there were other departmental proceedings pending
which are still pending, the reply of the respondent is in paragraph 29
of the written statement denying any such proceeding and alleging
that the statement is false, fabricated and concocted. It is specifically
stated in the written statement, in paragraph 29, that there was only
one departmental proceeding pending against the sole respondent and
the same was disposed of and resignation accepted before he filed his
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
5
second nomination paper.
8
The further stand in the written statement is that the
resignation was duly, properly accepted and that being so, he was
validly elected and his election could not be challenged.
9 Upon these pleadings, issues were framed as under with
agreement of parties and the parties proceeded for trial.
(1) Whether the acceptance of resignation of sole
respondent not being in accordance with law, it
would be deemed that the sole respondent
continued to be in Government service and, as
such, was disqualified from contesting election?
(2) Whether the acceptance of nomination paper of
the sole respondent by the Returning Officer
without proof of acceptance of sole respondent’s
resignation vitiated the acceptance of
nomination of sole respondent and his
nomination ought to have been declared void?
10 Let it be noted that all along the proceedings, the sole
respondent represented himself in person.
11 In support of the election petition, the election petitioner
examined himself as the sole witness.
12 Exhibit 1 is a show cause dated 06.06.2010 issued by the
Senior Superintendent of Police (SSP), Patna asking the petitioner to
show cause as to why departmental proceedings should not be
initiated against him and why he should not be suspended. Exhibit 2
is the Memo dated 30.06.2010 by which departmental proceedings
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
6
were initiated against the sole respondent. Exhibit 3 is the letter of
resignation of the sole respondent from Police Service dated
16.08.2010. This letter is addressed to Inspector General (IG) of
Police, Patna Zone, Patna. Exhibits 4 and 4a are the entire ordersheet
of this departmental proceeding of district Patna at various stages.
Exhibit 4/2 is the communication dated 10.11.2010 sent by the SSP,
Patna to the sole respondent intimating him to the order of punishment
as passed by him on 03.11.2010.
13 Now coming to the manner in which this departmental
proceeding proceeded.
From the ordersheet, it is clear upon the
detailed considerations as are to be found in Exhibit 4/1 that the
departmental proceeding having concluded in a manner on
02.11.2010, the enquiry officer, who was the Assistant Superintendent
of Police (ASP) at Fatuha submitted her report in the said
departmental proceeding on 03.11.2010. Exhibit 4/2 would further
show that the SSP received the enquiry report dated 03.11.2010 on the
same day at Patna and on the same day, he passed final orders holding
the sole respondent guilty and the order was then sent for entry as a
District Order on the same day. The sole respondent was visited with
two black marks as a punishment. Exhibit 5 now would show that
this order of the SSP passed on 03.11.2010 pursuant to enquiry report
dated 03.11.2010 was then placed on the same day before the DIG of
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
7
Police, Central Range, Patna before whom the sole respondent’s
resignation was pending though addressed to IG. On the same day
that is 03.11.2010, the DIG, in view of the departmental proceeding
having been concluded, accepted the resignation of the sole
respondent from Police Service. Exhibit 5/1 is a fax message of this
acceptance of resignation of sole respondent by the DIG and the order
in relation thereto as was communicated by the office of the DIG to
the District Magistrate (DM), Aurangabad on 04.11.2010 at about 1
pm and it also has the seal of the office of the DM, Aurangabad. This
is the order that was purportedly produced by the sole respondent
before the Returning Officer. Exhibit 6 is the first set of nomination
papers filed by the sole respondent which was filed on 02.11.2010 and
Exhibit 6/1 is the second set of nomination paper filed by the sole
respondent on 03.11.2010. This second nomination paper, filed on
03.11.2010, was filed at 2.33 pm in the office of the DM,
Aurangabad.
Exhibit 7 is the entire ordersheet of the Returning
Officer in relation to the nominations filed and the scrutiny. These are
the documents in support of the contention that the acceptance of
resignation by the sole respondent was wrongly and incompetently
done.
14 Then are Exhibits 8 and 9 which are information supplied
pursuant to queries made under Right to Information Act intimating
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
8
that there was departmental proceeding pending against the sole
respondent in Aurangabad district which records were sent to this
Court as well by Exhibit 9. Exhibit 10 is the chargesheet alongwith
the departmental proceedings as against the sole respondent at
Aurangabad. These evidences were brought to show that when the
resignation of sole respondent was being accepted by the DIG at
Patna, there was another departmental proceeding also pending to the
knowledge of the sole respondent and, as such, it was not open to the
DIG to accept the resignation till all departmental proceedings had
been concluded.
15 It may be noted here that Exhibits 8, 9 and 10 were all
brought on record upon recall of the election petitioner as they had
been received after he had already deposed. The sole respondent was
given several opportunities to rebut this evidence which was brought
on record but it was not utilized.
16
In sum and substance, the argument of the election
petitioner was two folds based upon the aforesaid evidences.
The
first line of submission was that if we look into the facts and the
manner in which the acceptance of resignation was orchestrated, it
would be clear that it was wrongly done. A pending departmental
proceeding was abandoned by the sole respondent.
The ASP at
Fatuha concludes the proceedings on 02.11.2010, draws up and sends
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
9
the enquiry report on 03.11.2010 to the SSP. It is received in the
office of the SSP on 03.11.2010 itself who passes the final order of
punishment hand to hand on the same day that is 03.11.2010 and it
somehow reaches the office of the DIG on the same day that is
03.11.2010 who, immediately on that very day, passes an order that in
view of the departmental proceeding having been concluded, the
resignation is accepted and then this order is faxed by him on
04.11.2010 to the DM, Aurangabad within which district Obra
Assembly Constituency lies, the last date for filing nomination paper
being 03.11.2010. This cannot be said to be a valid exercise of power
even if it be assumed that the DIG was the competent authority.
Three independent officials pass three different orders from three
different offices, all on the same day. The second line of submission
is that merely because a person decides to resign from service, the
service agreement or contract does not come to an end. It has got to
be accepted and so long as a departmental proceeding is pending, it
cannot be accepted. Reference has been made to the sole respondent’s
letter (Exhibit G) to the SSP, Patna clearly stating and requesting that
the departmental proceedings be concluded at an early date to
facilitate acceptance of his resignation and to Exhibit 5/1, the order of
DIG clearly stating, wrongly though, that as departmental proceeding
has ended, the resignation is accepted, tacitly admitting that so long as
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
10
departmental proceedings are not concluded, resignation cannot be
accepted.
17
In defence, sole respondent examined himself as a
witness. His stand would be that as the DIG, as per Police Manual,
had the authority to remove a person from service, dismiss a police
personnel from service, he would necessarily have the power to accept
the resignation. He, thus, brought on record evidence to show the
disciplinary powers of the DIG which is Exhibit A. The further stand
of the sole respondent would be that though when he filed his first
nomination paper that is Exhibit 6 on 02.11.2010, his resignation had
not yet been accepted, therefore, he waited and, on 03.11.2010, the
last day of filing his nomination, once his resignation was accepted by
the DIG, he, thereafter, filed his nomination paper which was validly
filed. On 04.11.2010, when in course of scrutiny, the RJD candidate
took an objection, a notice was issued to him (Exhibit B) by the
Returning Officer to show cause.
Exhibit C is sole respondent’s
response enclosing therewith the copy of order of DIG, Central
Range, Patna which copy is already on record as Exhibit 5/1 which is
the fax copy of the order of DIG as sent by the DIG to the DM,
Aurangabad at about 1 pm on 04.11.2010. The further case of the
sole respondent was that he had much earlier decided to contest the
forthcoming election. He had, accordingly, tendered his resignation
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
11
and had sent his resignation on 16.08.2010 (Exhibit 3).
He was
requesting the authorities to conclude departmental proceedings so as
to enable him to contest the elections consequent upon his resignation
being accepted. As to the other pending departmental proceedings,
the contention of the sole respondent would be that there is no law
that provides that pending departmental proceedings, resignation
cannot be accepted and if that be so, it was irrelevant whether another
departmental proceeding was pending or not once resignation was
accepted by the DIG.
18 It was further argued on behalf of the sole respondent, on
basis of various judgments of the Apex Court, that unless the election
petitioner pleads and establishes that the results of election were
materially affected as a consequence of wrongful acceptance of
nomination paper of a candidate, elections cannot be set aside. The
judgments, as relied for the said proposition, inter alia, are Tek
Chand –Versus- Dile Ram (2001) 3 SCC 290, Shiv Charan Singh –
Versus- Chandra Bhan Singh (1988) 2 SCC 12, Mangani Lal
Mandal –Versus- Bishnu Deo Bhandari (2012) 3 SCC 314, Sri
Uma Ballav Rath –Versus- Sri Maheshwar Mohanty & Ors (1999)
3 SCC 357 and Jabar Singh –Versus- Genda Lal (1964) 6 SCR 54.
19
He would further submit that whether elections were
materially affected is a question of fact which has to be established by
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
12
pleading material particulars, the onus of which is on the petitioner
and in absence thereof, the election petition itself ought to be
dismissed. For this, he relied on judgments of Samant N Balkrishna
& Ors –Versus- George Fernandez & Ors (1969) 3 SCC 239,
Udhav Singh –Versus- Madhav Rao Scindia 1976 SCR (2) 246
and Azhar Hussain –Versus- Rajiv Gandhi 1986 (SUPP) SCC 315.
20 The sole respondent raises another issue that is whether
the resignation was validly accepted or not is not a question that can
be gone into in these proceedings and the validity of the action of
acceptance of resignation cannot be collaterally challenged. For this,
he placed reliance on the judgment of the Apex Court in the case of
Hari Bansh Lal –Versus- Sahodar Prasad Mahto & Ors (2010) 9
SCC 655.
21 These being the issues, the evidences and submissions,
the question is whether the sole respondent can be held to be holding
office of profit at the time when he filed his nomination paper and at
the time when he was declared elected.
22 In my view, the first question to be decided is whether it
is open to the election petitioner to raise the question of validity of the
action taken by the DIG in accepting the resignation of the petitioner.
As noted above, the sole respondent submits that whether the
resignation was validly accepted or not cannot be challenged in a
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
13
collateral manner in these proceedings that is in an election petition.
To my mind, the answer has to be in favour of the election petitioner
for two reasons. Once Constitution provides for a disability then
whether the disability is attracted or not is a question that the Court
has to necessarily decide. The second is based on a recent decision of
the Apex Court in the case of P H Paul Manoj Pandian –Versus- P
Veldurai (2011) 5 SCC 214. That case also arose out of an election
petition. The election was challenged on the ground that the winning
candidate, whose election was under challenge, was under contract of
the Government of the State. The plea taken was that the contract had
been terminated. The termination was challenged before the Madras
High Court where the election petition was filed and in the election
petition itself. The High Court, on an analysis of the evidence, held
that the termination of the contract was validly done and, as such, the
winning candidate was not under contract of Government. The matter
was taken up in appeal to the Apex Court. In this appeal from the
election petition, the Apex Court went into the question of validity of
termination of the contract and held that it was incompetently
terminated and, as such, it held that on the day when nomination
paper was filed and the results were declared, the elected candidate
was under the contract of the Government and, thus, his election was
set aside and the appeal was allowed. The order of the High Court
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
14
was reversed. This, in my view, concludes the issue whether the
question of validity of acceptance of resignation can be or cannot be
gone into by this Court. In view of the authority above, this question
is open to be examined by this Court in these proceedings. This
objection of the sole respondent is, thus, overruled.
23 The next question that arises is what is the effect of
pending departmental proceeding vis-à-vis acceptance of resignation.
On behalf of the election petitioner, it is contended that there were
several departmental proceedings pending against the sole respondent.
That being so, unless the departmental proceedings were concluded,
the DIG, even if he was competent to accept the resignation, could not
have accepted the resignation.
This is based on fundamental
principles as there is no provision either in the Service Code or in the
Police Manual in regard to resignation. He further points out that the
sole respondent himself had repeatedly requested the authorities to
conclude all the departmental proceedings at an early date so that his
resignation may be accepted. Reference has been made to Exhibit G,
a letter written by the sole respondent to the SSP, Patna clearly stating
that pending departmental enquiries, his resignation would not be
accepted and that would prejudice him because he was intending to
contest the Assembly Elections.
He could so contest only if his
resignation is accepted. Learned counsel for the election petitioner
further points out and submits that it is for this reason when, in
paragraph 34 of the plaint, it was specifically mentioned that there
were other departmental proceedings pending, in paragraph 29 of the
written statement, the sole respondent denied pendency of any other
departmental proceeding. He went a step further to say that the said
allegation was concocted, false and fabricated but in course of the
trial, evidence was brought on record by virtue of Exhibits 8 and 9 to
show that there was at least one departmental proceeding that was
pending in the district of Aurangabad where the sole respondent had
been posted as SI. The sole respondent was given opportunity to
rebut the official records that were produced before the Court upon
summons being issued.
He chose not to do so.
From those
proceedings, as contained in Exhibits 8 and 9, it is apparent that the
sole respondent had appeared in those proceedings. Thus, it is clear
that, as a matter of fact, a departmental proceeding was pending
against the sole respondent of which he was fully aware and which
has not yet been concluded. Let it be noted that in those departmental
proceedings, the Superintendent of Police, Aurangabad had made a
recommendation for the extreme punishment of dismissal from
service. The sole respondent then submitted that as he had been
transferred from Aurangabad to Patna in a different Range, the
proceeding, as initiated or pending at Aurangabad, came to an end. I
am unable to accept this. A disciplinary proceeding, once initiated,
can only end in three manners, either it is concluded by punishment or
exoneration or it is set aside by a Court of competent jurisdiction or it
abates by reason of death or superannuation of a person.
No
disciplinary proceeding lapses or comes to an end merely because a
person is transferred from one Range to another. Apparently knowing
this, the sole respondent was not ready to accept this fact.
24 Now it is well settled that resignation from service is a
bilateral act. A person may have a right to resign but that resignation
is always subject to acceptance. An employer has a right to refuse an
employee the right to resign for various reasons. Persons, holding
responsible post in public administration, cannot simply resign and
walk away. They have certain duties. It is also a matter of contract
where notwithstanding the right to resign, that is dependent upon its
acceptance. When departmental proceedings have been initiated, an
order of punishment, which may have different ramification, can be
passed only so long as master-servant relationship exists.
There
cannot be any order of punishment in a departmental proceeding if the
master-servant relationship comes to an end. If an employee tenders
his resignation then pending disciplinary proceedings would become
meaningless if resignation is accepted without concluding the
disciplinary proceedings. That cannot be because, as noted above,
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
17
disciplinary proceedings can come to an end only in three manners, as
indicated above.
If the resignation is accepted then no effective
punishment can be given. Thus, before resignation can be accepted,
the authorities are bound to find out if any disciplinary proceeding is
pending or not and if those proceedings are pending, they have first to
be concluded one way or the other.
Once all departmental
proceedings are concluded only then an authority, competent to accept
the resignation, can accept the same. When we look to the facts of the
present case, as brought on record, it would be seen that the sole
respondent was aware of this position so was the DIG because Exhibit
G, the letter dated 01.10.2010 of the sole respondent to the SSP, Patna
clearly states that he had come to know that his resignation was not
being accepted merely because departmental proceedings were
pending and had not been concluded. Then if we refer to Exhibit 5/1,
the order of the DIG dated 03.11.2010 accepting sole respondent’s
resignation, the DIG clearly states that as the departmental proceeding
has concluded, the resignation can now be accepted and was accepted.
Thus, both the sole respondent and the DIG were fully aware and
conscious of the legal position.
25 Thus, it is held that so long as departmental proceedings
are pending and not concluded, a resignation cannot be accepted.
From the evidence, as noted above, I had found that there was at least
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
18
one other departmental proceeding that was pending in which there
had been a recommendation for dismissal of the sole respondent.
That proceeding remains unconcluded.
The sole respondent was
aware of it having appeared in it. Thus, in my view, in view of these
facts, it is difficult to hold that had this fact been brought to the notice
of the DIG, DIG would have accepted the resignation.
To the
contrary, from the order of the DIG itself, it is apparent that had he
been informed of this pending proceeding, he would not have
accepted the resignation. Thus, I can safely hold that the resignation,
as accepted by the DIG, was wholly without jurisdiction as law did
not permit him to accept the resignation pending departmental
proceeding.
26 Even otherwise, I am constrained to hold that the manner
in which the whole thing was orchestrated shows that the resignation
was wrongly accepted.
As noted above, in the departmental
proceeding that was pending at Patna, the sole respondent appeared
and gave in writing that he had no evidence to lead and he is ready to
face any punishment.
The proceedings were concluded on
02.11.2010. On the next day, that is 03.11.2010, which was also the
last date for filing nomination paper, the Enquiry Officer at Fatuha
draws up the enquiry report and finds the sole respondent guilty.
Somehow and very unusually, the enquiry report instantly reaches the
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
19
SSP at Patna on the same day and is directly put up to him and he
immediately, hand to hand, passes an elaborate order of punishment.
Then again, it is not known, as to how it instantaneously reaches the
office of the DIG on the same very day and DIG looks into it and
passes the final order accepting the resignation on the same very day.
All this is happening within a few hours in the first half of
03.11.2010. It is so because as per sole respondent’s own deposition,
having come to know that his resignation has been accepted at about
2.30 pm on 03.11.2010, he files his second set of nomination paper
which is Exhibit 6/1. Thus, in a span of about three hours, the enquiry
report is prepared, signed at Fatuha, carried to Patna, the SSP peruses
it, passes an elaborate order of punishment. It is then carried to the
DIG who studies it and, in view of the conclusion of the departmental
proceeding, passes an order of acceptance of resignation. Pertinent to
note that 03.11.2010 was the last for filing nomination paper. If these
brief facts are kept in mind, can it be said that the resignation was
bona fide accepted. The answer has to be an emphatic no. The
further fact to be noted here is that the resignation being accepted by
the DIG, the DIG suo motu then faxes the same and on the next day,
that is 04.11.2010, the moment question is raised at the time of
scrutiny, a FAX message is sent to the DM, Aurangabad.
Sole
respondent, at that time, was at Aurangabad. He produced a copy of
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
20
this faxed order before the Returning Officer. Who had the access to
the DIG to ask him to fax the letter and that too to the DM,
Aurangabad. The DM, Aurangabad, with his seal, then hands over the
copy of the letter to the sole respondent to be produced before the
Returning Officer. These are highly unusual, suspicious and non-
bona fide steps. It is for these reasons one has to hold that acceptance
of resignation was not a bona fide act. It was not a bona fide exercise
of power. It was, thus, a bad exercise and an invalid exercise. That
being so, it has got to be held that the resignation having been
improperly accepted, the acceptance is ineffectual and the resignation
itself is then ineffectual. The consequence thereof is that the sole
respondent would be deemed to be in Government service and would
suffer from constitutional disability under Article 191 (1) (a) of the
Constitution.
27 In view of the fact that the sole respondent has raised
issue with regard to maintainability of the election petition, it is
necessary to decide the same as well.
According to the sole
respondent, it was mandatory on the part of the election petitioner to
plead material facts to show that acceptance of nomination paper of
the sole respondent, even though it was invalid, would materially
affect the results. As noted above, he had relied on several decisions
of the Apex Court. I have examined all those decisions. They do not
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
21
apply to the facts of this case. In those cases, the invalid nomination
papers were accepted of candidate other than the winning candidate.
The nomination of a losing candidate was used as a ground to
challenge the election results. Courts negatived it because of the
mandatory nature of Section 83 read with Section 101 of the
Representation of the People Act, 1950 (hereinafter referred to as the
Act) which makes it mandatory to plead facts necessary to show that
the results would have been materially affected. Courts held that if
the nomination of the losing candidate was wrongly accepted, it
cannot be said as to who would have got the votes as was polled in his
favour.
There is a chance of scattering of votes among various
contestants. Unless with certainty, it could be pointed out that the
votes would inure to the election petitioner and this fact could be
established, no relief could be granted. Here, the situation is entirely
different. Here, it is winning candidate whose nomination is alleged
to have been wrongly accepted.
Nothing more has to be shown
because if the winning candidate’s nomination is wrongly accepted,
that itself shows that the result is materially affected.
A person,
whose nomination ought not to have been accepted, is allowed to
participate in the election and he is declared elected, even though
ineligible.
Apart from this, there is yet another answer.
Sole
respondent’s election has been challenged because he suffers from a
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
22
constitutional disability or constitutional disqualification. A person,
who is constitutionally disqualified, can never be accepted as a
representative of the people. Thus, this issue, as raised by the sole
respondent, is misconceived.
28 I may also state that in view of provisions of Section 100
(1) (a) of the Act which takes within its sweep the provisions of
Article 191 (1) (a) of the Constitution, there is no necessity of
showing that the elections would be materially affected as is required
under Section 100 (1) (d) of the Act. There is a distinction between
the two provisions that is Section 100 (1) (a) and 100 (1) (d) of the
Act in this regard. The present case is solely based on the provisions
of Section 100 (1) (a) of the Act and not in relation to 100 (1) (d) of
the Act.
29 In the result, there is no escape from holding that the
resignation of the sole respondent was invalidly, improperly and
wrongly accepted. The acceptance of resignation not being valid, it
would be deemed that the sole respondent was in Government service
at the time when he filed his nomination paper which was accepted
and he contested the elections.
That being so, he suffered from
constitutional disability and, as such, it has to be declared that the
election of the sole respondent is null and void.
30 The Election Commission of India is directed hence to
Patna High Court E.P. No.4 of 2011 dt.24-04-2014
23
make necessary arrangements for fresh poll in respect of the said
Constituency.
31 The Election Petition is, thus, allowed.
Patna High Court,
The 25th of April, 2014,
No comments:
Post a Comment