Anurag Gupta vs The Election Commission Of India on 3 May, 2019

[Cites 21, Cited by 0]

Jharkhand High Court

Anurag Gupta vs The Election Commission Of India on 3 May, 2019

Equivalent citations: AIRONLINE 2019 JHA 245

Bench: Ananda Sen

                                          1



             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P.(S) No.1714 of 2019

Anurag Gupta                          ...                         Petitioner

                                     -versus-

1. The Election Commission of India, through the Chief Election Commissioner,
Nirvachan Sadan, New Delhi, P.O. New Delhi, P.S. New Delhi, New Delhi
110001.

2. The Chief Electoral Officer, Government of Jharkhand, Near Gayatri Mandir,
Old O.P.D., H.E.C. Colony, Sector-2, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur,
District Ranchi.

3. The Principal Secretary, Department of Home, Prison and Disaster Manager,
Government of Jharkhand, at Project Building, P.O. Dhurwa, P.S. Jagannathpur,
District Ranchi.

4. The Director General of Police, Government of Jharkhand, Ranchi, having its
Office at DGP Office, at Hatia, P.O. Hatia, P.S. Jagannathpur, District Ranchi.
                                      ...                        Respondents
                                        ----

                CORAM :    HON'BLE MR. JUSTICE ANANDA SEN
                                    ----

            For the Petitioner :              Mr. Indrajit Sinha, Advocate
                                              Ms. Sneh Singh, Advocate

            For the Respondents-State : Mr. Ajit Kumar, Advocate General
                                        Mr. Syed Ramiz Zafar, A.C. to A.G.

            For the Respondents-Election
            Commission of India        : Dr. Ashok Kumar Singh, Advocate
                                   ----

                                    ORDER

RESERVED ON 26.04.2019                        PRONOUNCED ON 03.05.2019

5/ 03.05.2019      In this writ application, the petitioner is challenging the order

passed by the Election Commission of India, communicated vide order dated 01.04.2019, whereby the petitioner was forthwith divested from his present assignment and has been directed to report to the Resident Commissioner, Jharkhand Bhawan at New Delhi. Further a direction has been given that he will not be allowed any leave/duty to visit the State of Jharkhand till the completion of the election process. The consequential order dated 01.04.2019 issued by the Additional Secretary, Government of Jharkhand relieving the petitioner with a direction to join at Jharkhand Bhawan and report to the Resident Commissioner, Jharkhand Bhawan has also been challenged by the petitioner.

BRIEF FACTS

2. The brief facts of this case is that the petitioner is in the Indian Police Service and is an Officer of 1990 Batch, in the Jharkhand Cadre. He is holding the rank of Additional Director General and was posted as Additional Director General, Special Branch, Ranchi. A complaint was made against him in the year 2016, by one Yogendra Sao alleging that he while in office, indulged in electoral malpractices like influencing voters in the Rajya Sabha Elections, which was held in June 2016. A similar complaint was made by Babu Lal Marandi, President of Jharkhand Vikash Morcha (Progressive), another political party. On receipt of the said complaint, the Election Commission of India, directed the Chief Secretary of Jharkhand to initiate a departmental action under the service rules against the petitioner and also directed to initiate appropriate proceeding under the Prevention of Corruption Act and also under the Indian Penal Code. On receipt of such direction, a departmental proceeding has been initiated against the petitioner and also an FIR was registered being Jagannathpur Police Station Case No.154 of 2018. In the meantime, the Election to the 17th Lok Sabha was announced by the Election Commission of India on 10th March, 2019. On 28.03.2019, the General Secretary of a Political Party, namely, Jharkhand Mukti Morcha, wrote to the Chief Election Commissioner of India requesting to immediately transfer the Director General of Police of the State of Jharkhand and the petitioner who is the Additional Director General, Special Branch as they have remained for more than three years in the said post. It was also brought to the notice of the Election Commission of India, that this petitioner had indulged in unfair practices during the Rajya Sabha Elections of 2016. The said complaint was forwarded to the Election Commission of India vide letter dated 30.03.2019, by the Chief Election Officer-cum-Additional Chief Secretary, Jharkhand. On receipt of the said letter, the Election Commission of India issued the impugned order whereby the petitioner was divested from the present assignment and he was directed to report to the Resident Commissioner, Jharkhand Bhawan, New Delhi by 01.00 p.m. on 2nd April, 2019. Further, it was directed that he shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the election process. On receipt of the said order, the State of Jharkhand issued the consequential order relieving the petitioner and directed him to report at Jharkhand Bhawan, New Delhi in the Office of the Resident Commissioner.

3. These two orders are under challenge in this writ application.

4. In this case, both the Election Commission of India and the State of Jharkhand have appeared through their respective counsel and have also filed their counter affidavits separately.

5. Since the pleadings are complete and looking to the urgency of the matter and as time is the essence, all the parties agree for final hearing and disposal of this case at the stage of admission itself.

PLEADINGS OF THE PETITIONER

6. After going through the pleadings filed by the petitioner, I find that over and above the facts, which have been narrated above, the petitioner has taken the ground that the order is arbitrary, stigmatic and punitive in nature. He has taken a ground that basic human rights, viz. right to family has been curtailed by the impugned order. It has also been pleaded that Yogendra Sao, who complained against the petitioner, is himself a criminal and is involved in number of cases. It is also pleaded that at least an opportunity of hearing should have been given to the petitioner before passing the impugned order. It is pleaded that direction, as contained in paragraph 4(i) of the order violates his fundamental rights. It has also been pleaded that the Election Commission is not vested with any power to issue the aforesaid direction and their power is confined to the provisions laid down under the Representation of the People Act of 1950 and 1951 and they have transgressed their power by passing the impugned order. It has also been pleaded that the basis has not been mentioned in the impugned order as to why the petitioner has been transferred. Further, it is pleaded that in between 2016 and 2019, there were several bye-elections in the State of Jharkhand, election to the Rajya Sabha and also election to the local bodies were held, but, there was no allegation against the petitioner, nor he was divested of his powers during those elections or similar type of order was ever passed.

PLEADINGS OF THE ELECTION COMMISSION OF INDIA

7. The Election Commission of India in their counter affidavit states that in the year 2016, there was a complaint from Jharkhand Vikas Morcha (Progressive) in connection with the Biennial Election to the Council of States (Rajya Sabha) from Jharkhand. There was allegation that this petitioner directly interfered in the exercise of electoral right of two MLAs 4 as the petitioner was the Additional Director General (Police), Jharkhand. A compact disc (CD) along with the said complaint was filed, which contained several audio and video files, which are alleged to be evidence against this petitioner. One of the MLAs wrote to the Election Commission of India about the interference of the petitioner in the election process. Leaders of other political parties also wrote to the Election Commissioner about the activities of the petitioner. In paragraph 8, it has been alleged that one MLA was prevented from casting his vote due to warrant of arrest issued against him under the influence of this petitioner. On receipt of the said complaints, an explanation was sought for from the petitioner, who denied the allegations. After going through the records, the Election Commission of India felt that a prima facie case to proceed against the petitioner was made out and thus, directed State to initiate action against the petitioner. A criminal case was instituted against the petitioner and a departmental proceeding was also initiated. In the criminal case, the investigation is continuing and has not yet been completed, as neither the chargesheet has been filed nor the final form, exonerating the petitioner. The Election Commission mentions in their counter affidavit that since the charges have not yet been proved to be untrue and as the departmental proceeding has not yet concluded and charges in the departmental proceeding has not been disproved, the order impugned was passed. They further mention that Section 28A of the Representation of the People Act, 1951 gives power to the Election Commission of India to take a decision in respect of employees, who are deputed and since the petitioner is a deputed employee, the impugned order has been passed by the Election Commission, whose jurisdiction cannot be questioned. It has been mentioned that superintendence and control over the petitioner during the election process is vested with the Election Commission of India, which has correctly taken the decision to divest the petitioner from his present assignment and has directed him to leave Jharkhand, to remain stationed at New Delhi, till the election process is over. They mention that the Election Commission assessed the complaint and considered the consequences and concluded that physical presence of the petitioner in Jharkhand is detrimental in ensuring free and fair elections. They mention that the allegations leveled against the petitioner on earlier occasions were more with regard to his sinister and diabolical interference in election process in his personal and individual capacity, rather than his official capacity. After taking note of the criminal case instituted against the 5 petitioner and the departmental proceeding, it was found desirable and obligatory on part of the Election Commission to issue the impugned order. The claim of Election Commission of India is that the power is vested in them by virtue of Article 324 of the Constitution of India, which is plenary in nature. The Commission has exercised such power to ensure conduct of free and fair elections. They have also brought on record the FIR, which was instituted against the petitioner and several newspaper cuttings and some alleged transcripts in support of their contention.

PLEADINGS OF THE STATE OF JHARKHAND

8. The State of Jharkhand has also filed their counter affidavit. In their counter affidavit, their main contention is that on receipt of the order passed by the Election Commission of India, they immediately took action and relieved the petitioner. The State has mentioned that the criminal investigation is not yet complete and in the departmental proceeding, charges have been framed against the petitioner. The petitioner was asked to submit his defence and since the defence was not accepted as satisfactory, it was decided to proceed with the departmental proceeding and the conducting officer has already been appointed. It has also been brought to the notice of this Court that the petitioner represented before the Election Commission of India requesting to recall and modify para 4(c) of the impugned order and also prayed for grant of leave up to 27.05.2019 on the ground that his daughters are preparing for examination and there is no one to guide them. The representation was forwarded to the Election Commission of India.

ARGUMENTS OF THE PETITIONER

9. Mr. Indrajit Sinha appearing on behalf of the petitioner challenges the impugned order. He argues that there is no dispute that the petitioner is under control of Election Commission of India, who can deal with the petitioner departmentally, and can transfer him, but they have to act within the four corners of the Representation of the People Act, especially Section 28A of the Act. He submits that the direction contained in the impugned order passed by the Election Commission of India is mainly in three folds: - (a) the petitioner is divested from the present assignment; (b) he was directed to report in the Office of the Resident Commissioner at New Delhi; and (c) he shall not be allowed any leave or duty to visit the State of Jharkhand till completion of the election process. By referring to 6 the said restrictions, he submits that these prohibitions and relieving the petitioner is absolutely bad as the election commission has exceeded its jurisdiction. He submits that if there is any departmental proceeding or any criminal case pending against an Officer, he can at best be kept away from election related works and he ought not to have been relieved from his duties. He submits that the fundamental rights of this petitioner have been curtailed by the Election Commission of India without any authority of law. He takes this Court through Section 28(A) of the Representation of the People Act of 1951 and submits that though as per the said provisions of the Act, a designated police officer shall be deemed to be on deputation to the Election Commission, but, as per the Model Code of Conduct, the petitioner will be deemed to be exempted officer. He submits that on 19th March, 2019, a notification was issued by the Government of Jharkhand, Home Prisons and Disaster Management Department, which is in exercise of power under Section 28A of the Representation of the People Act, 1951, designating all police officials, including Additional Director General of Police as "designated officer" in terms of Section 28A of the said Act. On 28.03.2019, a representation was made by Jharkhand Mukti Morcha, requesting to transfer the petitioner and the Director General of Police, State of Jharkhand on the ground that they are occupying the post for four years and as per the Model Code of Conduct, they are to be shifted. The said letter also refers to the alleged activities of the petitioner during the Rajya Sabha Elections held in the year 2016. The said representation of the Jharkhand Mukti Morcha was forwarded to the Election Commission of India on 30.03.2019 by the Chief Election Officer-cum-Additional Chief Secretary, Government of Jharkhand and immediately on the next day, i.e., on 1st April, 2019, the impugned order was passed. He tries to impress upon this Court that in a very hot haste, without applying mind and without considering the entire aspect, the impugned order has been passed. He argues that though there are some unverified allegations against the petitioner for interfering with the election process of the Rajya Sabha in the year 2016, yet thereafter, bye-elections were held in the State of Jharkhand, Rajya Sabha Elections were held in the State of Jharkhand and elections of local bodies were also held in the State of Jharkhand. As per him, admittedly during those subsequent elections, there were no complaint against the petitioner and the petitioner was not divested from the duty. He submits that there was no additional material before the Election Commission of India and in absence of such additional materials, 7 the impugned order could not have been passed. He submits that the impugned order cannot be said to be an order of transfer. He submits that no posting has been made, which vitiates the impugned order.

He argues that the petitioner, admittedly, is an Additional Director General of Police and is posted in the Special Branch. He submits that the Special Branch is not attached with any election duties. He submits that the Election Commission has formulated a Model Code of Conduct. He submits that same is a guideline and can be said to be an executive instruction. He submits that Chapter 19 of the Model Code of Conduct deals with government officials. Clause 19.2 of the said policy relates to transfer and posting. Clause 19.2.1 is the condition of transfer. He submits and gives emphasis on Clause 19.2.3, which deals with exemptions. He submits that as per Clause 19.2.3 of the Model Code of Conduct, the police officials, who are posted in functional departments like Special Branch and others are not covered under the transfer policy. He submits that since the petitioner is in Special Branch, he is an exempted official and could not have been transferred as the Mode Code of Conduct is not applicable to him. He submits that this Model Code of Conduct being in the nature of an executive instructions, cannot curtail fundamental rights of the petitioner. He submits that the petitioner being free citizen of the country, has a right to move to any place of India and impugned order has restrained his movement and confines him at New Delhi. He submits that even the Model Code of Conduct does not empower the respondents to issue such directions.

By attacking the impugned order, he further submits that there are no reasons assigned as to what prompted the Election Commission to pass such an order. He submits that the order has to be tested on its face value and no counter affidavit can supplement any reason which is not reflected in the order itself. He relies on the decision of the Supreme Court in the case of Mohinder Singh Gill & Another versus The Chief Election Commissioner, New Delhi & Others reported in (1978) 1 SCC

405. He submits that the unreasoned impugned order of the Election Commission of India is sought to be justified by the Commission in their counter affidavit. He submits that paragraphs 24 to 30 of the counter affidavit are the reasonings. The Election Commission of India wants to supplement the impugned order by the counter affidavit, which is impermissible. Further, he submits that the reasoning given in the counter 8 affidavit in the aforesaid paragraphs are derogatory and lacks prudence. He submits that there is nothing on record to suggest that sheer physical presence of the petitioner will be an obstacle in holding free and fair elections. He submits that there is nothing to suggest that how the petitioner will influence the process of election. He submits that there is no satisfaction recorded in the impugned order, which warrants transfer and prohibiting the petitioner from visiting Jharkhand. He submits that only on the surmises and conjunctures and merely on unsubstantiated allegations, the impugned order, which, in effect, is curtailing the basic rights of the petitioner, has been passed, which cannot be sustained. He submits that as per paragraph 28 of the counter affidavit, the Election Commission of India pleaded that the inference of the petitioner in election process is in his personal and individual capacity and if that be so, the Election Commission of India cannot take refuge of Section 28A of the Representation of the People Act, 1951. He submits that it is well settled principle that in a criminal trial innocence is presumed and charges, until and unless proved, guilt cannot be fastened upon any person. In the instant case, this principle of law has been given a go bye, by the Election Commission of India and the Election Commission has, in fact, shifted the onus on the petitioner to prove his innocence by proving that since the charges have not been disproved, the impugned order is justified. He submitted that the investigation of the criminal case is pending and also the departmental proceeding. No conclusive evidence has surfaced against the petitioner and in absence of any conclusive evidence, the impugned order could not have been passed curtailing his fundamental right. He submits that the impugned order amounts to externment and the same is without backing of any law. He submits that Article 324 of the Constitution of India does not give power to the Election Commission of India to curtail the fundamental right of any person. He submits that any power cannot be unfettered and any action using the said power can come under judicial scrutiny. He submits that when an order interferes with the valuable rights, especially fundamental rights of a person, the principles of natural justice have to be followed. In this case, there is utter violation of principles of natural justice, which renders the impugned order invalid. He submits that by an executive instruction, fundamental right cannot be curtailed and admittedly, there is no law of the Parliament which empowers the Election Commission of India to curtail the fundamental rights. He also refers to an order, whereby the Hon'ble Supreme Court in the case of 9 Satish Chandra Verma versus Union of India & Others [Civil Appeal No.3802 of 2019 - arising out of SLP(Civil) No.1655 of 2019] has held that a person, who is facing departmental proceeding can be allowed to go abroad and the Government of India cannot refuse permission to the delinquent to go abroad. By referring to the said order, he submits that freedom to travel is a basic human right, which cannot be taken away. He submits that his right to family and his right to privacy have also been infringed by the impugned order. Curtailment of movement is infringement of his rights to privacy for which he refers to several paragraphs of the decision of the Supreme Court reported in (2017) 10 SC 1 [K.S. Puttaswamy & Another versus Union of India & Others]. He submits that in view of what has been argued by him, the entire impugned order needs to be quashed and set aside as the same has been passed without backing of a law, without any authority and jurisdiction and as the same interferes with the fundamental rights of the petitioner.

ARGUMENTS OF THE STATE OF JHARKHAND

10. Learned Advocate General appeared for the State and argued that the departmental proceeding is pending against the petitioner as he has been transferred to New Delhi, the proceeding is not progressing. He submits that in the criminal case, chargesheet has not been filed, as the investigation is still pending. He submits that the complainant Yogendra Sao is not furnishing the relevant documents and the Compact Disc, which is the main evidence in this case. He submitted that due to non- cooperation of the complainant, the investigation has been hampered. He submits that the petitioner has been asked to report before the Resident Commissioner, New Delhi, but, admitted that there is no order of posting. His main argument is that since the Election Commission has directed them to release the petitioner, they have done so.

ARGUMENTS OF THE ELECTION COMMISSION OF INDIA

11. Dr. A.K. Singh, appearing on behalf of Election Commission of India, vehemently supported the order impugned. He submits that the Election Commission of India derives power from Article 324 of the Constitution of India. As per him, Article 324 gives power to the Election Commission to take one and all actions to ensure free and fair elections. He submits that all impediments, which comes in the way of free and fair election, has to be removed by the Election Commission for which the Election Commission is 10 empowered by the Constitution of India to pass any order in respect of any official, to achieve the goal of conducting free and fair elections. He submits that the power is plenary in nature, unless there is an Act of the Parliament. He submits that if there is no Act of the Parliament, governing in all the issues, then the Election Commission falls back to Article 324 and derives power from the said article. In support of his contention, he heavily relies on the decisions of Hon'ble Supreme Court in the case of

(i) Mohinder Singh Gill & Another versus The Chief Election Commissioner, New Delhi & Others reported in (1978) 1 SCC 405,

(ii) Kanhaiya Lal Omar versus R.K. Trivedi & Others reported in (1985) 4 SCC 628, (iii) A.C. Jose versus Sivan Pillai & Others reported in (1984) 2 SCC 656 and (iv) Union of India versus Association for Democratic Reforms & Another reported in (2002) 5 SCC 294. He submits that the Model Code of Conduct has been framed by the Election Commission by invoking power under Article 324 of the Constitution of India. He submits that Clause 19.2.3 of the Model Code of Conduct read with Section 28(A) of the Representation of the People Act gives power to the Election Commission to transfer the petitioner to any place, so, the petitioner was transferred from his present place of posting to report to the Office of Resident Commissioner at New Delhi. He further submits that the Model Code of Conduct is merely illustrative in nature and is an open ended document. He submits that as all the situations could not be foreseen, it cannot be said that only the situation, which has been covered by the Model Code of Conduct falls within the domain of the Election Commission. He submits that the situation, which are not incorporated in the Model Code of Conduct, but hinders free and fair elections, can be taken care of by invoking jurisdiction under Article 324 of the Constitution of India. He submits that preemptive measures can also be taken by the Election Commission. He submitted that Section 28A of the Representation of the People Act, 1951 clearly provides that all "officers" including Additional Director General will stand deputed at the time of election. Admittedly, there is a notification by the State of Jharkhand designating all Additional Director Generals of Police (ADGPs), which includes the petitioner. Thus, the petitioner, who is designated and is on deputation with the Election Commission of India, can well be transferred. He submits that there are evidences, which suggested that the petitioner indulged in influencing voter during Rajya Sabha Elections of 2016 and being in a responsible government post, he tried to influence the election 11 process in 2016. Thus, taking into consideration, his past conduct, the impugned order was passed directing him to report at New Delhi in the Office of the Resident Commissioner and seeing the gravity of the issue, it was directed that the petitioner should not be allowed to come to Jharkhand either on leave or for any work till the election is over. He demolishes the claim made by the petitioner that the petitioner being Additional Director General in Special Branch has got no relation with elections and cannot influence any one. As per him, even a non- designated official can also be controlled by virtue of Article 324 of the Constitution of India. He submits that Special Branch is a very important Branch of the Government, which gathers information, be it in respect of any candidate or a party and thus, they are integral part of the system and thus, it cannot also be said that they are unconnected with the election process by any means. By referring to the aforesaid provisions of law and the judgments, he submits that there is no doubt that the Election Commission is vested with the power to pass the impugned order.

So far as the instant case is concerned, he submits that since there is prima facie material against the petitioner, the Election Commission has taken a conscious decision and directed the petitioner to report at New Delhi and has passed an order that the petitioner should not be allowed to visit Jharkhand till the election process is over. He admits that in between 2016 and 2019 elections were held to the Rajya Sabha, bye-elections in the State of Jharkhand and also elections of local bodies, but, there was no complaint against the petitioner and no such order was passed against him on earlier occasions. To strengthen his stand, he submitted that on 2nd November, 2018, the Election Commission of India, in order to ensure successful free and fair elections in Mizoram, had directed Mr. Lalnunmawia Chuango, the Principal Secretary, Home to be relieved from his responsibilities with immediate effect and directed him to report to the Ministry. Further, he submitted that the Election Commission directed that the said Secretary, Home shall not be assigned any work related to Mizoram or deputed to Mizoram till the election process is over. Dr. A.K. Singh produced a copy of the said order dated 2nd November, 2018, which is kept on record. On query, he submits that as per his instructions, the said order was never challenged and was accepted by the said officer. He submits that there is no infringement or suspension of the fundamental rights of the petitioner in this case as he was only asked to report at New Delhi and for time being it was decided not to grant him any leave or duty 12 to visit Ranchi. He submits that for free and fair elections, these restrictions are reasonable keeping in view the larger interest of the nation. On query from the Court, he submitted that the FIR and the departmental proceedings, which are against the petitioner, are the only basis of taking the impugned decision. He admits that except those, there is no other material against the petitioner. He lastly submitted that considering the past conduct of the petitioner and on the facts of the case, the Election Commission of India is justified in passing the impugned order. He thus submitted that the impugned order has been issued to achieve the avowed goal.

DISCUSSION & FINDINGS

12. Election is the oxygen of democracy. As oxygen has to be pure and unadulterated, similarly, the process of election should be free, fair and pure without any interference and influence. Any contamination of election process, by whatever means, is perilous to democracy. To ensure free and fair elections without any impediment and to conduct such election, Article 324 of the Constitution of India provides for establishment of Election Commission and vests the power of superintendence, direction and control of elections in the Election Commission. This provision not only establishes the Election Commission of India, but also vests power in it.

13. For better appreciation, Article 324(1) of the Constitution of India is quoted hereinbelow: -

324. Superintendence, direction and control of elections to be vested in an Election Commission. -

(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).

14. As per Article 324(1) of the Constitution of India, the superintendence, direction and control in respect of preparing the electoral rolls and also for conducting elections to Parliament and to the Legislature of every State and elections to the Offices of President and Vice President held under the Constitution is vested with the Election Commission. Thus, 13 the Election Commission is the supreme authority to conduct election, having power vested in it to direct, control and supervise.

15. Article 327 of the Constitution of India gives power to the Parliament to make provisions with respect to making of laws in relation to the elections of Parliament and State Legislature. Article 327 of the Constitution of India reads as follows: -

327. Power of Parliament to make provision with respect to elections to Legislatures. - Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

16. Similarly, Article 328 of the Constitution of India gives power to legislature of a State to make provision with respect to election to such legislature. These two articles, i.e., Article 327 and 328 give power to the Parliament and the State Legislature, from time to time, by law, to make provisions with respect to all matters relating to or in connection with the elections to the either house of the Parliament or the State Legislature as the cases may be. In consonance with Article 327, the Parliament enacted the Representation of the People Act, 1950 (43 of 1950) to provide for the allocation of seats in, and the delimitation of constituencies for the purpose of elections to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union territories and matters concerned therewith. Similarly, the Representation of the People Act, 1951 (43 of 1951) was also enacted by the Parliament. This Act of 1951 is to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.

17. The Rules have also been framed under the said Acts.

18. From the provisions of the Constitution of India, I find that the Election Commission has full superintendence, control and also has power to give direction in respect of conducting election. This power flows from Article 324 of the Constitution of India. The power vested by this Article 324 is plenary in nature, vesting whole responsibility and the power to exercise such responsibility for conducting Parliamentary and State elections, upon the Election Commission. This power under Article 324 has to be read in the light of the Constitutional scheme and the Act of 1950 and 1951. This power is plenary, unless there is an Act of Parliament occupying the same field. This means where there is a law enacted, the Election Commission has to act within the four corners of the law.

The question is what will happen if no law is there to deal with a given situation?

The Hon'ble Supreme Court, in the case of Mohinder Singh Gill & Another (supra) in paragraph 39 has held that there may be a situation, which an enacted law has not provided for. All situations cannot be foreseen by the legislators as they are not prophets but pragmatists, so to overcome the said situation constitutional provision has been made in Article 324 to take care of the surprised situation. As per the Hon'ble Supreme Court, Article 324 operates in areas left unoccupied by the legislation. As per the Hon'ble Supreme Court, the words 'superintendence', 'direction' and control' as well as 'conduct of all elections' are the broadest terms. Situation may arise when prompt action is needed to reach the goal of conducting free and fair election. Article 324 is thus, geared to the accomplishment of free and fair elections expeditiously. This Article 324 is an unlimited powerhouse or a reservoir from where the Election Commission of India derives power to pass an order to ensure free and fair elections without influence.

19. Similar was the view of Hon'ble Supreme Court in the case reported in (1984) 2 SCC 656 [A.C. Jose versus Sivan Pillai & Others]. In paragraph 25 of the said judgment, the Hon'ble Supreme Court has held as under:-

25. To sum up, therefore, the legal and constitutional position is as follows :

(a) when there is no parliamentary legislation or rule made under the said legislation, the Commission is 15 free to pass any orders in respect of the conduct of elections.

(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by Article 324,

(c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of election, and

(d) where a particular direction by the Commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given.

20. Similar view was also taken by the Hon'ble Supreme Court in the case of Kanhaiya Lal Omar versus R.K. Trivedi and Others [(1985) 4 SCC 628].

21. Each and every situation, which obstructs and creates hindrance in conducting free and fair elections, needs to be tackled by the Election Commission of India by taking strong measures. Where there is a law framed, the Commission has to act as per the said law, but, where there is no such law, the Election Commission cannot remain a silent spectator, they have to act. In this situation, the Election Commission is not powerless. In these unforeseen situations, which is not provided for in any of the law framed by the Parliament or where there is a void in that particular law, Article 324 of the Constitution comes to fill up the void or the vacuum. This was the conscious move of the framers of our Constitution and they have given residuary power to the Election Commission to deal with infinite variety of situations, which may emerge from time to time in our large democracy. Every contingency cannot be foreseen or anticipated with precision, that is why the ray of hope and strength for these unforeseen situations is Article 324 of the Constitution. Free and fair 16 uninfluenced elections, in our democracy cannot be conducted unless the Commission has an amplitude of powers in conducting such elections. Thus, there is no doubt to hold that the Election Commission derives power from Article 324 of the Constitution and it cannot be said that the Election Commission is powerless in a given situation.

22. Thus, I find that by virtue of Article 324 of the Constitution of India, the Election Commission of India is empowered to come out with any notification, circular or any direction to achieve the ultimate goal of conducting free, fair, smooth and uninfluenced elections to the Parliament and to the State Legislature, where, there is no special law, either framed by the Parliament or by the State Legislature to deal with the situation.

23. To conduct election, that too of the largest democracy of the world, is a herculean task. It needs large number of administrative machineries to conduct the election smoothly and also in free and fair manner. Chapter IV of the Act of 1951 deals with administrative machinery for the conduct of elections. Section 19A of the Act of 1951 delegates the functions of the Election Commission under the Constitution and under the Act of 1950 and 1951 and the Rules, to the Deputy Election Commissioner or to the Secretary, Election Commission. This delegation is subject to any general or special direction. This means that the Election Commission can delegate functions to the Deputy Election Commissioner or to the Secretary of the Election Commission, subject to general or special directions, which may be given by the Election Commission. By virtue of this clause, any special and general direction can be given by the Election Commission, which can be performed by the Deputy Election Commissioner or the Secretary of the Commission. Section 20 provides that the Chief Electoral Officer of each State shall supervise and conduct all elections in the said States under superintendence, direction and control of the Election Commission. Similarly, in terms of Section 20A of the Act of 1951, the District Election Officers, coordinate and supervises all the work in relation to the election of the Parliament and the State Legislature. These District Election Officers are also under superintendence, direction and control of the Chief Electoral Officer. The observers are nominated by the Election Commission in terms of Section 20-B of the Act of 1951, Returning Officers, Assistant Returning Officers are also appointed and functions in terms of Rules 21, 22, 23 and 24 of the Rules framed under the Act of 1951. The Presiding Officers are also 17 appointed and their duties are defined. The aforesaid provisions of law clearly provide for the administrative machineries, which are necessary to conduct the elections.

24. Section 28A is a very important provision of the Act of 1951 and is important for decision of this case. Section 28A of the Act of 1951 reads as under: -

28-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 the 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 the control, superintendence and discipline of the Election Commission.

25. From perusal of Section 28A, it is clear that all the Officers, like Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and any other officer appointed under Part IV of the Act of 1951 and any police officer designated for the time being by the State for conduct of any elections 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 till the date of declaration of the result. The said Section 28A also provides that all such Officers, during the aforesaid period, shall be subject to the control, superintendence and discipline of Election Commission.

26. Thus, this clause provides that not only the designated police officer will be on deputation to the Election Commission, but, they shall during the said period will be under the control, superintendence and discipline of the Election Commission of India.

27. In terms of Section 28A, the State of Jharkhand has issued a notification bearing No. 13/P-1-101-2019-1498 on 19th March, 2019 designating, on amongst others, Additional Director Generals of Police as 18 "designated officers". The petitioner, in the instant case is Additional Director General of Police, thus, there is no doubt that the petitioner is also a designated officer for the purpose of Section 28A of the Representation of the People Act for the 17th Lok Sabha Elections.

28. Once the petitioner is designated by notification, as a "designated officer", as per Section 28A of the Act of 1951, he is deemed to be on deputation to the Election Commission for the entire period of election. By virtue of such deputation and by virtue of Section 28A of the Act of 1951, he is also under direct control, superintendence and discipline of the Election Commission of India.

29. The Hon'ble Supreme Court, in the case of Corporation of the City of Nagpur Civil Lines Nagpur & Another versus Ramchandra & Others reported in (1981) 2 SCC 714, has held that the term 'control' is of a very wide connotation and amplitude and includes a large variety of power, which are incidental or consequential to achieve the power vested in the authority concerned. In the case of Shamrao Vithal Cooperative Bank Ltd. versus Kasargod Pandhuranga Mallya reported in (1972) 4 SCC 600, the Hon'ble Supreme Court has held that the word 'control' is synonym with superintendence, management or authority to direct, restrict or regulate. Similarly, in the case of Zee Telefilms Ltd. Versus Union of India & Others reported in (2005) 4 SCC 649, the Hon'ble Supreme Court had taken note of the definition of 'control' in Black's Law Dictionary, which defines 'control' in following terms: Control - power or authority to manage, direct, superintendent, restrict, regulate, govern, administer or oversee.

30. The word 'superintendence' connotes the act of superintendence, care and oversight for the purpose of direction and with authority to direct. It implies administrative control enabling the authority enjoying such power to give directions to the subordinate to discharge its administrative duties and functions in the manner indicated in the order. This has been held by the Hon'ble Supreme Court in the case of State of Bihar & Another versus J.A.C. Saldanha & Others reported in (1980) 1 SCC 554.

31. Thus, there is no doubt that the Election Commission has got full control over the petitioner - a "designated officer" and can give any direction to him and also can restrict and regulate him. This means that the Election Commission has a power to decide what nature of job will be performed by the petitioner and the manner in which he will perform the 19 same. This also means that the Election Commission can restrict and forbid him from performing any work, which they feel like, to achieve the ultimate goal of conducting free and fair elections.

32. The petitioner contended that the impugned order directing the petitioner to report at New Delhi from Jharkhand cannot be said to be a transfer order and thus, the aforesaid direction is bad. His contention was that the order directing him to report at New Delhi is in violation of his fundamental rights and right to privacy, as he has a right to move freely within the territory of India. He also heavily relies on Clause 19.2.3(i) of the Model Code of Conduct in support of his contention that the petitioner is an exempted government official. As per the petitioner, the police official, who is posted in Special Branch are not covered by the transfer policy. He submitted that since the petitioner is Additional Director General of Police, posted in Special Branch, he is immune from the said transfer policy by virtue of the said provision, so the petitioner couldn't have been asked to report at New Delhi.

33. This Court is not in agreement with the petitioner.

34. The word 'transfer' ordinarily in relation to service, in simple terms, means a change of place of employment.

35. The supplementary Rules 2(18) to the Fundamental Rules, governing servants in government service defines 'transfer' in the following terms: -

Transfer means the movement of a government servant from one headquarter station in which he is employed to another such station either

(a) to take up the duties of a new post, or

(b) in consequence of change of his headquarters.

36. Keeping the aforesaid provisions of law in background, if I read the impugned order which directs the petitioner to report to the Resident Commissioner, Jharkhand Bhawan at New Delhi, it can be held that this order passed by the Election Commission is, for all purpose, an order of transfer.

37. Transfer is an incident of service and is also an eventuality of 20 service. An employee cannot, as a matter of right, seek transfer to a place of his choice as held by the Hon'ble Supreme Court in the case of Chief General Manager (Telecom) N.E. Telecom Circle & Another versus Rajendra Ch. Bhattacharjee & Others reported in (1995) 2 SCC 532. A public servant, who holds a transferable post, has no vested right to remain at a place. As a deputed employee, this petitioner does not have any right to remain to be posted at a particular place of his choice. It is the prerogative of the employer to place an employee at a place of employer's choice.

38. Since the transfer is an incident of service and the petitioner is fully under control and subject to superintendence of the Election Commission of India, the Election Commission can transfer him like any other employee to any place.

39. The Election Commission has framed a Model Code of Conduct for the purpose of conducting free and fair elections. This Model Code of Conduct is an executive instruction issued by the Election Commission. The Election Commission has power to issue such Model Code of Conduct in view of Article 324(1) of the Constitution of India.

40. Chapter 19 of the Model Code of Conduct deals with government officials. Clause 19.1.2 mentions that these government officials are back bone of the country. These officers are expected to perform the duty with impartiality and commitment towards democratic values. The Election Commission has, thus, also put restrictions in holding private meetings between government servants and political functionary during the period of Model Code of Conduct.

41. The Election Commission has also formulated policy of transfer/posting of government officials during the election process to ensure free and fair elections.

42. The condition of transfer is laid down in Clause 19.2.1 of the Model Code of Conduct, which is a general condition and provides that a person connected directly with elections shall not be present in his home district and if he has completed three years in a district during last four years or would be completing three years on or before the last day of month in which the term of the house is going to expire, has to be transferred.

43. Clause 19.2.2 is the applicability of the transfer policy in respect of 21 government officials, which provides that the instructions shall not only govern officers appointed for specific election duties, but all other district officers or any other officers of equal rank directly deployed for election work. The said instructions are also applicable to the police officers.

44. The petitioner takes refuge to Clause 19.2.3(i) of the Model Code of Conduct. He claims that he is an exempted officer. Clause 19.2.3(i) is quoted hereunder: -

19.2.3 Relaxation/Exemption:- The following government officials are not covered under the transfer policy mentioned above-

(i) The police officials who are posted in functional departments like computers, special branch, training etc. are not covered under these instructions.

(ii) (iii) (iv) (v) (vi) (vii) (viii) ..............

45. This provision of the Model Code of Conduct is a general provision, which cannot be universally applied. This Model Code of Conduct also cannot be said to be a close ended document. Each and every circumstance is not foreseen while framing this Model Code of Conduct. There may be situations, when a police official, who is posted in functional department can also be brought within the scope of transfer policy and can be transferred. These are the individual unforeseen situations, which has to be dealt with by the Election Commission after taking into consideration the situation and gravity of each case. Orders transferring these officers will be exceptions to the Model Code of Conduct and will be in exercise of the powers vested under Article 324 of the Constitution of India, which is plenary in nature, read with Section 28A of the Act of 1951.

46. In the instant case, it is important to deal with Clause 19.2.3 (ii). The said clause reads as under: -

19.2.3 Relaxation/Exemption:- The following government officials are not covered under the transfer policy mentioned above-

(i) ............

(ii) During an election a large number of employees are drafted for different types of election duty and the Election Commission has no intention of massive dislocation of state machinery by large scale 22 transfers. Hence, the aforesaid transfer policy is normally not applicable to officers/officials who are not directly connected with elections like doctors, engineers, teachers/principals etc. However, if there are specific complaints of political bias or prejudice against any such govt. officer, which on enquiry, are found to be substantiated, then Chief Election Officer/Election Commission of India may order not only for transfer of such official but also for appropriate departmental action against him/her.

(iii) (iv) (v) (vi) (vii) (viii) ..............

47. As per the said clause, I find that if there is a complaint against an officer, which on enquiry, are found to be substantiated, then the Election Commission of India may order not only for transfer of such official, but, also for appropriate departmental action against him/her. Thus, even an exempted officer can also be transferred by the Election Commission of India.

48. Further, Clause (v) of 19.2.3 provides that if there is any direction of the Election Commission against any official to initiate a disciplinary action in past and if such disciplinary proceeding is pending, he shall not be allowed any election duty.

49. In this case, I find that there is a complaint against the petitioner and after the said complaint was forwarded to the Election Commission of India, the Election Commission had directed the State to initiate a criminal proceeding and a departmental action against the petitioner for which Jagannathpur Police Station Case No. 154 of 2018 has been instituted and a departmental proceeding has been initiated. Be it noted that the departmental chargesheet has been issued to the petitioner in the departmental proceeding to which he has replied and his reply was not found to be satisfactory.

50. This clearly gives a feeling that there are prima facie materials to proceed against the petitioner departmentally on the allegation that he had interfered and tried to influence voters in the Rajya Sabha Elections of 2016. Be it noted that the petitioner is a responsible police officer in IPS Cadre and as per Chapter 19 of the Model Code of Conduct, he is expected to perform the duty with impartiality and commitment towards democratic values.

51. Further, it is on the direction of the Election Commission, the FIR was lodged, which means that the Election Commission was of the prima facie opinion that on the complaint and the allegations levelled therein, an FIR must be lodged against the petitioner. The Election Commission also directed departmental action against him. This suggests that at that point of time, the Election Commission had applied its mind and found that the action of the petitioner warrants initiation of departmental proceeding, thus, gave such direction to initiate the departmental proceeding and to register the FIR.

52. Admittedly, the criminal case is under investigation, so, I am not consciously making any comment on the criminal case nor on the transcript of conversation, which the counsel for the Election Commission has relied upon to prove the involvement of the petitioner in influencing voters during the Rajya Sabha Elections of 2016, so that it may not prejudice either of the parties.

53. Thus, from the aforesaid discussion, this Court is of the view that not only as per the Model Code of Conduct and also by exercising power under Article 324 of the Constitution and under Section 28A of the Act of 1951, the Election Commission can direct the petitioner to report before the Resident Commissioner, Jharkhand Bhawan, New Delhi.

I find that there are sufficient materials before the Election Commission to pass the impugned order and it cannot be said that the order impugned is without any basis. Further, as per Clause 19.2.3(v) of the Model Code of Conduct, since there is a pending departmental action, the petitioner is not entitled to be assigned with any election related duty and further there is no illegality in divesting the petitioner from his present assignment till conclusion of the election process.

54. Clause 4(a) of the impugned order directs that the petitioner be divested from his present assignment. I find that as noted above, by virtue of the Model Code of Conduct, since there is a departmental proceeding pending against the petitioner in which memo of charge has already been served and his reply was found unsatisfactory, by natural consequences, he should not be assigned any election related duty. The petitioner, who is the Additional Director General of Police, is posted in the Special Branch. There is an allegation that he interfered and influenced the voters in the Rajya Sabha Election in 2016. Since there was an allegation against the 24 petitioner and departmental charge has also been framed, the Election Commission, after due consideration, has taken a conscious decision to divest him of his present posting, that too, only till the election process is over. I find that no right of the petitioner, far less a fundamental right of the petitioner, has been infringed by the said order. Since no right has been infringed and as the Election Commission has power to restrain the petitioner, I find no illegality in the aforesaid direction.

55. Clause 4(c) of the impugned order directs that the petitioner shall not be allowed any leave/duty to visit the State of Jharkhand till completion of election process. Leave cannot be claimed as a matter of right. It is in the nature of a grant. The employer, on an application by the employee, can grant the leave or can refuse the same. It is also a condition of service. Leaves are generally governed by Rules and administrative instructions. If there is leave in the credit of the employee, he can very well apply for the same, but, it is up to the employer to grant the same or to refuse, considering the circumstances, period of leave sought for and also considering the purpose for which the leave is being sought for. This discretion and power of the employer should be exercised reasonably and refusal should be on reasonable ground. Thus, this Court feels that the blanket order of the Election Commission of India that no leave will be granted to the petitioner is unreasonable. This part of the order imposing blanket ban on leave cannot be sustained in the eye of law. If the petitioner applies for grant of leave, giving reasons for seeking such leave and the period, the Election Commission of India should consider the said application on its own merits and will consider whether such leave should be granted or not.

So far as prohibition to the effect that the petitioner shall not be allowed any duty to visit the State of Jharkhand, is concerned, I find that as he is on deputation to the Election Commission, it is the Election Commission, who can decide whether he should be given any duty in the State of Jharkhand or not. Since the decision has already been taken by the Election Commission that the petitioner will not be allowed any duty to visit Jharkhand and since the Election Commission has power to take such decision and such decision is not unreasonable or arbitrary and is based on atleast some facts, I find there is no illegality in the said direction. Further, this decision is only till conclusion of election process, i.e. for a very limited period.

56. The petitioner argued that the fundamental right of the petitioner has been infringed by the impugned order. He submits that the power under Article 324 of the Constitution cannot create an impediment or restrict the fundamental rights, which are guaranteed by the Constitution.

57. The petitioner has got no right to remain posted at a particular place nor does he have the right over his present assignment. Leave also cannot be sought by way of right. Thus, no right of the petitioner has been infringed by the impugned order, far less a fundamental right. Since no fundamental right has been infringed in this case, to give a finding whether, by virtue of Article 324 of the Constitution of India, fundamental rights can be restricted or not, will be merely academic in nature, which, in this litigation, cannot be delved into.

58. The contention of the petitioner that the order is unreasoned one and, on that ground, the same should be quashed cannot be acceded to. The order is not punitive in nature. It is for a limited period. No reasons need to be assigned if the Election Commission, who is in control over the petitioner during the period of election, directs the petitioner to report at New Delhi and divest him of the present assignment. Further, I find that the pendency of a departmental proceeding against the petitioner, where the charge is influencing voters during Rajya Sabha Elections, is sufficient to pass the impugned order. An FIR for committing election offence has also been registered. Both these actions, admittedly, have been taken by the State on the direction of the Election Commission. Some reason has been assigned by the Election Commission, which prompted it to pass the impugned order. If there is a reason given in the order and if the same is not patently illegal or perverse, this Court feels that same should not be interfered with. This is for the reason that it has to be kept in mind that the prime duty of the Election Commission of India is to conduct free and fair election, and to remove and deal with the situation, which comes in between and acts as hindrance in achieving the desired goal. Some latitude has to be given to the Election Commission of India and the presumption should be in favour of the order.

Further, the Election Commission is not estopped from exercising its control and superintendence over an Officer even though on earlier occasion no such order of restriction was passed.

59. Thus, from the discussions and findings arrived above, I hold that no 26 fundamental right of the petitioner is infringed by this impugned order. The Election Commission is well within its jurisdiction to pass the impugned order divesting the petitioner from his present assignment and directing him to report to the Resident Commissioner, Jharkhand Bhawan at New Delhi by virtue of the powers under Article 324 of the Constitution, read with Section 28-A of the Representation of the People Act, 1951. This Court only interferes in the blanket order banning leave to the petitioner and directs the Election Commission to act in terms of paragraph 55 of this judgment.

60. Thus, this writ application is dismissed with the modification in the impugned order to the extent indicated in paragraph 55 and 59 of this judgment.

( Ananda Sen, J.) Kumar/Cp-02 AFR

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Jharkhand High Court