Andhra HC (Pre-Telangana)
Janga Raghava Reddy vs The State Of Andhra ... on 17 April, 2013
Author: C.V. Nagarjuna Reddy
Bench: C.V. Nagarjuna Reddy
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY W.P.No.5238 of 2013 and Batch 17-4-2013 Janga Raghava Reddy The State of Andhra Pradesh,Represented by its Secretary, Co-operation, Secretariat, Hyderabad and others <GIST: >HEAD NOTE: Counsel for petitioner : Sri K. Ramakrishna Reddy, Senior Counsel (in W.P.Nos.5238/2013 & 5365/2013) Sri E. Manohar, Senior Counsel (in W.P.Nos.6084 & 6103/2013) Counsel for respondent Nos.1 to 3 : Additional Advocate General Counsel for respondent No.4 : Sri A. Kranti Kumar Reddy ?CASES REFERRED: 1. AIR 1967 S.C. 1170 2. AIR 1976 S.C. 437 3. AIR 1977 S.C. 1323 4. AIR 2002 S.C. 2158 5. 1979(2) An.W.R. 392 (DB) =AIR 1980 A.P. 98 (DB) 6. (2008) 10 SCC 166 7. 1997(7) SCC 614 8. (2003) 9 SCC 731 9. (1988) 4 SCC 669 10. (2002) 5 SCC 685 The Court made the following: COMMON JUDGMENT:
As the issues raised in these Writ Petitions are common, they are heard and being disposed of together.
For convenience, the respondents are referred as they are arrayed in W.P.No.5238/2013.
The petitioner in W.P.Nos.5238 and 6084 of 2013 is common. He has filed W.P.No.5238/2013 for a mandamus to declare the action of respondent No.3 in postponing the declaration of result of election of the office bearers i.e., Chairman/President and Vice Chairman/Vice President of the Warangal District Co- operative Central Bank Limited (for short "the Central Bank") under notice dated 19-2-2013 as illegal and arbitrary. He has also filed W.P.No.6084/2013 for a mandamus to declare proceedings Rc.No.3523-17/2013/Election Cell, dated 25-2- 2013 of respondent No.2 whereby he has cancelled the election process for the office bearers of the Central Bank and directed commencement of fresh election process, as illegal and arbitrary.
Eleven Directors of the Central Bank have filed W.P.No.5365/2013 for an identical relief as claimed in W.P.No.5238/2013.
W.P.No.6103/2013 has been filed by two co-opted members questioning proceedings dated 25-2-2013 of respondent No.2 cancelling the election and for the relief identical to that claimed in W.P.No.6084/2013.
The gist of the averments of the petitioners is stated hereunder:
Respondent No.3-Election Officer issued notice dated 18-3-2013 convening meeting of the Managing Committee members of the Central Bank for the purpose of electing the office bearers, namely, the President and the Vice-President, scheduled to be held on 19-2-2013 at 8 A.M. It is the pleaded case of the petitioners that the meeting, as scheduled, was held on 19-2-2013 and that 13 out of the 19 elected Directors of the Central Bank have attended the meeting. As 10 members constituted the coram, respondent No.3 was stated to have commenced the proceedings of the meeting by firstly filling two unfilled S.C. vacancies by way of co-option and thereafter permitted filing of nominations for the posts of the Chairman and the Vice-Chairman. That respondent No.3 notified the list of nominations and also prepared the valid nominations list in terms of Rule 22(12)(b) of the A.P. Co-operative Societies Rules, 1964 (for short "the Rules"). That respondent No.3 has obtained the signatures of all the members who attended the meeting and informed all those who are present at the meeting that the election result of the President and Vice President will be announced at 2.30 P.M. on the same day.
When the petitioners were waiting for announcement of the result, respondent No.3 has received telephonic instructions from respondent No.2 for postponement of declaration of results and as a consequence thereof, respondent No.3 had issued proceedings on the same day i.e., 19-2-2013 postponing the elections under a written order. A few days later i.e., on 25-2-2013, respondent No.2 passed an order wherein he has stated that the process of election to the office bearers (upto the stage of scrutiny of nominations) was vitiated and therefore he felt it necessary that the elections to the office bearers of the Central Bank has to be conducted afresh in a free, fair and impartial manner and that as there are certain malafides raised against the Election Officer, he is appointing one Tumma Prasad, DR/Divisional Co-operative Officer, Nalgonda, as the Election Officer in place of respondent No.3 and he was directed to conduct election afresh as per Rule 22-A(5) and Rule 22(12) of the Rules. As noted hereinbefore, both the postponement and cancellation of the election are questioned in these Writ Petitions separately.
I have heard Sri E. Manohar and Sri K. Ramakrishna Reddy, learned Senior Counsel, appearing for the respective petitioners, learned Additional Advocate- General for the official respondents and Sri A. Kranti Kumar Reddy, learned counsel for the impleaded respondents in W.P.Nos.5238 and 6084/2013. The learned Senior Counsel for the petitioners made the following submissions:
1. That once the election process is commenced, the same cannot be interrupted unless an order in writing has been made by the election authority specifying the grounds for postponement of the election; that no order postponing the election process has been passed by respondent No.2 and the telephonic communication stated to have been issued by him to respondent No.3 cannot be treated as an order in the eye of law; and that none of the three contingencies envisaged under Rule 22-C(1)(i) to (iii) of the Rules have existed for postponement of the election.
2. That Rule 22(9) envisaged that if the number of candidates whose nominations are valid does not exceed the number of vacancies to be filled by the election, the Election Officer shall declare them to have been duly elected as the Managing Committee members on the date and time at which the final list of valid nominations is published; that the receipt of nominations was fixed between 9 and 11 A.M., scrutiny of nominations was fixed at 11.30 A.M., withdrawal of nominations was scheduled between 12 Noon and 2 P.M; that the display of final list of contesting candidates and allotment of symbols was fixed at 2.30 P.M;
that since one nomination each for the President and the Vice President were received, respondent No.3 has announced that the election results shall be declared at 2.30 P.M. and that but for the unlawful interference by respondent No.2, respondent No.3 would have declared the election in terms of the above mentioned Rule.
3. That even if for any reason the election was postponed, under Rule 22- C(1)(b), the election process shall be recommenced from the stage at which it was obstructed or interrupted and that instead of directing recommencement of the election process, respondent No.2 went to the extent of canceling the entire election process and directing commencement of the election process afresh without any power or authority.
In support of their submissions, the learned Senior Counsel placed reliance on State of Madhya Pradesh Vs. Thakur Bharat Singh1, M/s. Ajantha Industries Vs. Central Board of Direct Taxes2, Palaniappa Gounder Vs. State of Tamil Nadu3, Indian National Congress Vs. Institute of Social Welfare4, and a Division Bench Judgment of this Court in Palli Pentayya Naidu Vs. Sirisetti Somaraju5 Opposing the above submissions, the learned Additional Advocate General submitted that since a complaint was received by respondent No.3 from one Donthi Madhava Reddy along with a copy of the FIR issued by the Subedhari Police Station, Warangal on the complaint of one T. Jagan Mohan Reddy stating that the elected Directors of his party were kidnapped and under threat they were made to attend the meeting forcibly, that the Election Officer has sought for instructions from respondent No.2 and that after considering the entire material, respondent No.2 has prima facie felt that there was need to further examine the issues and defer the election process and accordingly instructions were issued to the Election Officer for postponing the election. He further submitted that subsequently a report was called for and the District Collector, Warangal, after a detailed enquiry submitted his report dated 21-2-2013 wherein he has stated that the investigation by the police revealed that five Directors, namely Bukya Bikku, Garlapati Venkat Reddy, Anandam, Kedala Janardhan and Donthi Madhava Reddy, were abducted by Janga Raghava Reddy; that they were all kept under duress not to participate in the election; that Donthi Madhava Reddy was also threatened not to file his nomination; and that therefore respondent No.2 felt that the election process was vitiated and there was a need for conducting election afresh. The learned Additional Advocate General submitted that respondent No.2 being the election authority has inherent power to postpone or cancel the election. In support of this submission, he placed reliance on Section 21 of the General Clauses Act, 1897 and the Judgment of the Apex Court in Kranthikari Suraksha Rakshak Sanghatana Vs. BSNL6 and accordingly sought to justify the action of respondent No.2 in initially postponing the election and later cancelling the election process.
Sri A. Kranti Kumar Reddy, learned counsel for the impleaded respondent i.e., Donthi Madhava Reddy, pointed out certain discrepancies in the copies of report dated 19-2-2013 sent by respondent No.3 to respondent No.2 and submitted that these discrepancies would show that there was active collusion between Janga Raghava Reddy and the Election Officer and that therefore respondent No.2 was justified in canceling the whole election process. He has further pointed out that Rule 22(9) of the Rules, on which reliance has been placed by the petitioners, applies only to election of members of the Managing Committee and the same has no application to the election of office bearers of the Central Bank.
I have carefully considered the respective submissions of the learned counsel for the parties and perused the record.
Before adverting to the respective submissions of the learned counsel, it is necessary to refer to the relevant provisions of the Act and the Rules made thereunder. Section 31 of the Act deals with Constitution of committees. Sub- section (3)(a) thereof, inter alia, is concerned with committees of Co-operative Central Banks. Rule 22(2) of the Rules envisages Appointment of election authorities. In respect of the societies specified in Section 31(3)(a) of the Act, which, as noted above, includes a Co-operative Central Bank, the Registrar is the election authority and he shall appoint an officer of the Co-operative Department not below the rank of Deputy Registrar or any Gazetted Officer, as the Election Officer. Sub-rule (9) of Rule 22 of the Rules deals with Voting and declaration of results. Under clause (a) of the said sub-rule, which applies to the election of the Managing Committee members, if the number of candidates whose nominations are valid does not exceed the number of vacancies to be filled by election, the Election Officer shall declare them to have been duly elected as the Managing Committee members on the date and time at which the valid nominations are published. Sub-rule (12) of Rule 22, has laid down procedure for conduct of election to the office bearers of the societies. It has fixed the schedule for filing and scrutiny of nominations, withdrawal of nominations, publication of final list of the candidates etc. However, Rule 22- D, specifically deals with Election of District Co-operative Central Bank/Apex Societies/Sugar Factories. Under clause (b) of sub-rule (2) thereof, in the case of an Apex Society, Co-operative Central Bank, the District Co-operative Marketing Society and any other society where other societies and institutions are members, the date of filing of nominations, scrutiny of nominations and publication of valid list of nominations shall be on the same day which shall not be less than two days before the date of poll. Under sub-clause (c), the procedure for issue of election notification, receipt of nominations, scrutiny and withdrawal and also polling shall be followed as specified under Rule 22 of the Rules. Rule 22-C of the Rules, which has substantial significance in the present context of the case, reads as under:
"(1) Notwithstanding anything contained in these rules, the Government or the Election authority may direct the postponement of elections under one or more of the following circumstances:-
(i) Break down of law and order affecting the peaceful and lawful conduct of elections.
(ii) Any natural calamity that prevents the conduct of elections particularly, voters from participation in the election.
(iii) Where there is reasonable apprehension that voters will not be allowed to vote frankly and freely.
(b) The postponement shall be done only by issue of an order which shall specify the grounds of postponement. After such postponement the election process shall be recommenced when the conditions become conducive for re-commencing the election, by issue of an order by the Authority that has postponed the elections. The process will re-commence from the stage at which it was obstructed or interrupted."
It is not in dispute that respondent No.3, who was duly appointed as the Election Officer by respondent No.2, has issued notice of meeting to all the Managing Committee members (Directors) of the Central Bank for co-option of the unfilled S.C. vacancies of the Managing Committee and election of office bearers in Form XIII dated 18-2-2013. A perusal of this notice shows that respondent No.3-Election Officer has fixed the schedule for co-option of the two unfilled S.C. vacancies and election of office bearers i.e., President and Vice President as under:
(i) Attendance of Managing Committee meeting 8 A.M.
(ii) Co-option of two unfilled S.C. vacancies 8 A.M. to 9 A.M.
(iii) Election of office bearers:
Receipt of nominations 9 A.M. to 11 A.M. Scrutiny of nominations At 11.30 A.M. Withdrawal of nominations 12 Noon to 2 P.M. Display of final list of contesting candidates and allotment of symbols At 2.30 P.M. Polling, if necessary (Secret Ballot) 3.00 P.M. to 5.00 P.M. Counting of voters and declaration of result 5.30 P.M. onwards It appears from the material on record, with respect to which there is no dispute that 13 out of the 19 Directors have attended the meeting on 19-2-2013. As ten Directors constituted the quorum, respondent No.3 has started the process of co-option. Two persons, by names, Smt. Erra Janaki and Sri Chirra Uppalamma, the petitioners in W.P.No.6103/2013 appear to have been unanimously co-opted by the Directors. Thereupon, respondent No.3 has started the process of election of the office bearers. Sri Janga Raghava Reddy, the petitioner in W.P.Nos.5238 and 6084 of 2013 and Sri R. Pullaiah, petitioner No.1 in W.P.No.5365/2013, filed nominations for the posts of President and Vice President, respectively, and respondent No.3 has declared the list of nominations received by him. At around 11.35 A.M., Sri Donthi Madhava Reddy, an elected Director, entered the meeting hall and filed a petition before respondent No.3 alleging that the elected Directors of his party have been kidnapped and that under threat they were made to attend the meeting forcibly.
As to what transpired at this juncture, it is relevant to refer to the report dated 19-2-2013 sent by respondent No.3-Election Officer to respondent No.2. It is stated in the said report that on receipt of the said complaint, respondent No.3 enquired with all the 15 members, including the two co-opted members present, and that all the 13 members have given a written statement at 12.20 P.M. stating that they were voluntarily attending and participating in the meeting out of their free will and without being influenced by internal or external forces. Respondent No.3 categorically stated in his report that by the time he has received the complaint, he has completed the process of co-option and election of office bearers upto the stage of display of valid nominations after scrutiny and proceeded with the election schedule as notified. It is on this report that respondent No.2 is stated to have issued the telephonic instructions to respondent No.3 to postpone the election process. Respondent No.3 has accordingly issued the written order dated 19-2-2013, which reads as under :
"Whereas, I have been authorized to conduct Elections to the Warangal Dist. Coop. Central Bank Ltd., Warangal by the C.C. and R.C.S., A.P., Hyderabad/Election Authority vide Procgs.Rc.No.102/2013/DCCB Elections, Dated 11.2.2013.
Whereas, the process upto scrutiny of nominations of office bearer posts have been completed and there has been a petition from one of the elected director that some of the directions have been forcibly abducted and requested for postponement of election process. The status report along with petition and the written statements of M.C. members present in the meeting have been submitted to the Election Authority.
As per the telephonic instructions of the C.C. & R.C.S., A.P., Hyderabad/Election Authority, the Elections of the Office Bearers of the Warangal District Coop. Central Bank Ltd., Warangal and Managing Committee meeting of the WDCCB Ltd., are hereby postponed. The further schedule of elections will be notified later.
All the Managing Committee Members of the Warangal District Coop. Central Bank Ltd., Warangal are informed accordingly."
On 25-2-2013, respondent No.2 has issued proceedings whereby he has cancelled the election process.
From the facts, the respective submissions of the learned counsel and the legal position noted above, the main issues that arise for consideration are (1) whether the postponement of election process is in conformity with the scheme of the Act and the Rules and (2) whether respondent No.2 had power or authority to cancel the election process.
As noted hereinbefore, the only provision which empowers the Government or the election authority to direct postponement of elections is Rule 22-C. Only in one or more of the three contingencies mentioned therein, namely, breakdown of law and order affecting the peaceful and lawful conduct of elections, any natural calamity that prevents the conduct of elections and where there is reasonable apprehension that the voters will not be allowed to vote frankly and freely, the election can be postponed. Even for such postponement, the Government or the election authority, as the case may be, shall pass an order specifying the grounds of postponement of election. Undisputedly, respondent No.2 has not passed any order for postponement of the election. As evident from the written communication issued by respondent No.3 on 19-2-2013 and his averment in the counter affidavit filed by respondent No.2, he has merely issued telephonic instructions. The law is well settled that if a statute directs a particular thing to be done in a particular manner, the authority shall do that thing in that manner or not at all. (See: Union Public Service Commission Vs. S. Papaiah7, State of Maharashtra Vs. Jalagon Municipal Council8. Even if for any reason, respondent No.2 has believed that any of the contingencies mentioned in Rule 22C(1)(i) to (iii) existed, he was bound to issue an order in writing specifying the grounds for postponement of the election process. The telephonic instructions for postponement of the election is nonest under the statutory scheme and respondent No.3 has no authority whatsoever to issue a communication in writing postponing the election process. I am therefore of the opinion that the very postponement of the election process itself was vitiated by procedural illegality.
Another important aspect which needs to be considered is whether the order of respondent No.2 cancelling the election process is sustainable. As discussed above, by the time the election was interrupted, the election officer has completed the entire process of election upto the stage of display of valid nominations of the office bearers. As per the report of respondent No.3 only one valid nomination each for the post of President and Vice President was received. The only next step to be followed by respondent No.3 was to announce the result of the election in the absence of any contest. At that stage, the election process was interrupted.
Before proceeding further, it is noteworthy that respondent No.3 in his report dated 19-2-2013 has categorically informed respondent No.2 that one Donthi Madhava Reddy has submitted his complaint that the elected Directors of his party have been abducted and that they were made to attend the meeting forcibly; that on enquiry, all the 13 Directors who were present at the meeting have submitted their written statement at 12.20 p.m. that they have voluntarily attended and participated in the meeting freely without any force or influence. From the counter-affidavit it appears that instead of relying upon the report of respondent No.3, respondent No.2 has given undue weight to an F.I.R. filed by one T. Jagan Mohan Reddy who has no connection whatsoever with the elections to the Central Bank, in postponing the election process.
Be that as it may, respondent No.2 has purportedly asked the District Collector, Warangal to hold an enquiry and submit his report. As rightly submitted by the learned Senior Counsel for the petitioners, the District Collector, Warangal has no role to play in the matter of elections to the District Co-operative Central Banks. As noted hereinbefore, under Section 31(3)(a) r/w. Rule 22(2)(a), it is the Registrar of Co-operation who is the election authority. The District Collector is the election authority in respect of classes of societies other than those included in Section 31(3)(a) of the Act. But, respondent No.2 has placed reliance on the purported report of the District Collector who is an extraneous authority and cancelled the election process. A perusal of the order dated 25-2-2013 passed by respondent No.2 would show that the District Collector, Warangal, has informed him that five Directors, i.e., Bukya Bikku, Garlapati Venkat Reddy, Anandam, Kedala Janardhan and Donthi Madhava Reddy were abducted by Janga Raghava Reddy and prevented them from filing nominations to the posts of office bearers. The whole case thus has taken a complete twist in the sense that as per the District Collector's report, Donthi Madhava Reddy and four persons named in the report of the District Collector were abducted and prevented from filing nominations. The complaint given by Donthi Madhava Reddy to respondent No.3 was to the effect that the Directors belonging to his party were abducted and forcibly made to attend the meeting. Thus, there is a fundamental variation in the version of Donthi Madhava Reddy given to respondent No.3 on the one side and the version as given out to the District Collector, on the other. It is not the pleaded case of the respondents that the District Collector has even issued any notice to any of the 13 Directors and elicited their opinions. On the basis of such a report of the District Collector, respondent No.2 jumps to the conclusion that he is satisfied that the election process to the office bearers was vitiated and takes the extreme decision of cancelling the entire election process. Respondent No.2 being the election authority is not expected to arrive at such unilateral conclusions without even considering the written statement of the 13 elected Directors who attended the meeting, which was referred by respondent No.3 in his report sent to him.
In my opinion, the entire procedure followed by respondent No.2 does not fit into the scheme of the Act and the Rules. Once the election process is commenced, respondent No.2 at best can only postpone the election process if any of the situations envisaged in Rule 22-C(1)(i) to (iii) has arisen. After such postponement, respondent No.2 is bound to resume the election process from the stage where it was stopped. There is no provision under the Act or the Rules which empowers respondent No.2 to cancel the election process, once commenced. The stand of respondent No.2 that being the election authority he has the inherent power to cancel the election process has no legal basis. Indubitably, respondent No.2 exercises powers conferred by the statute. So much so, he needs to discharge the statutory functions within the confines of the statute. When the statutory provisions prescribe a particular procedure, it is imperative for respondent No.2 to act in consonance therewith.
In Palli Pentayya Naidu (5-supra) the election officer appointed for conducting elections to the Primary Agricultural Co-operative Society issued notice fixing a date for holding the general body meeting for electing the office bearers. Subsequently, the election officer has postponed the date of election to another date. A learned single Judge has set-aside the action of the election officer in postponing the election by placing reliance on Rule 22(5)(iv) of the Rules. In the Writ Appeal, the Division Bench while accepting the plea of the appellant that the said Rule has no application for the elections to the office bearers, however, sustained the order of the learned single Judge on the reasoning that there is no provision under the Rules enabling the election officer to postpone the date of the general body meeting. The Division Bench has rejected the submission of the appellants that in the absence of any Rule prohibiting the election officer from postponing the date of the general body meeting, he had the implied power to postpone the date of the general body meeting. The reasoning of the Division Bench for rejecting the said plea of the appellant is apt to be reproduced hereunder :
"The powers of the election officer are strictly limited by the statute, namely, the Co-operative Societies Act and the Rules made thereunder. There is no general right apart from the statute and the Rules in the election officer in the matter of conduct of elections to the co-operative societies."
This ratio applies in all fours to the present cases. As observed earlier, neither the Act nor the Rules empower the election authority to cancel the election process after its commencement. If for any reason the election process is interrupted and postponed, clause (b) of Rule 22(c)(1) mandates that after such postponement the election process shall be recommenced if the conditions become conducive for recommencement of the election by issue of an order by the authority that has postponed the elections and that the process will recommence from the stage at which it was obstructed or interrupted. Thus, far from there being any provision enabling the election authority to cancel the election process, the provision ordains the election authority to recommence the election process from the stage at which it was obstructed or interrupted. Regrettably, respondent No.2 appears to be totally oblivious of this mandatory statutory provision and by cancelling the election process and directing holding of fresh elections by appointing a new election officer, he has acted in total derogation of the legislative intent as manifested in Rule 22(1)(c)(b) of the Rules.
Section 21 of the General Clauses Act, 1897, pressed into service by the learned Additional Advocate General, confers general power of rescinding a notification or an order on the authority which issued the notification or the order and the same has to be understood in the light of the subject matter, the context and the effect of the relevant provisions of a statute under which the notification or the order is issued. In State of Kerala Vs. K.G. Madhavan Pillai9, the Supreme Court held that the power under Section 21 of the General Clauses Act is not available after an enforceable right has accrued under a notification or an order. In Indian National Congress Vs. Institute of Social Welfare10, the Apex Court held that a quasi-judicial order can be generally varied or reviewed when obtained by fraud or when such a power is conferred by the Act or Rules under which it is made.
It is not anybody's case that any fraud was played by any person in the process of conduct of election. The only allegation on which the election process was postponed and finally cancelled was that some of the elected Directors were abducted and prevented from participating in the election process. Except that the complaint given by one person who is unconnected with the election process, on the basis of which an F.I.R. has been registered, and a representation given by one Donthi Madhava Reddy to respondent No.3, there is no material to show that any of the Directors were abducted. None of the abducted Directors have given any complaint either to the police or to respondent No.3 in this regard. On the contrary, the 13 elected Directors who attended the meeting have given statement in writing that they have voluntarily attended the meeting without anybody's force and out of their free will. No material is available on record to show that respondent No.2 has done any independent enquiry except relying upon the report of the District Collector obtained behind the back of the 13 elected Directors, the two co-opted members and the Election Officer.
Assuming that some of the Directors were forcibly prevented from participating in the election process, the same does not constitute a ground for respondent No.2 to cancel the election process as no such power is consecrated in him under the Act or the Rules made thereunder. The only remedy available for the aggrieved party is to file an election petition before the jurisdictional Co-operative Tribunal under Section 61(3) of the Act for questioning the election.
The entire action of respondent No.2 culminating in cancelling the election process, replacing the election officer and directing holding of the election afresh is subversive of the democratic spirit, besides the same being contrary to the procedure laid down by the Act and the Rules. After all, the purpose of creating co-operative bodies and envisaging elections to them is not only to promote the co-operative spirit among the people but also to administer these co-operative bodies through majority will. Such an avowed object which is pervasive all through the provisions of the Act and the Rules cannot be destroyed and the majority will suppressed, by the unilateral acts of a few persons at the helm of affairs. The whole legislative intent in postulating specific procedure for an orderly conduct of election to ensure that people enjoying the majority will administer the co-operative institutions cannot be rendered nugatory by vested interests and the bureaucratic apparatus cannot toe line of these vested interests by acting in a highly subjective and biased manner. Such actions spell doom for democracy and being the Constitutional Court, it is the sacred duty of this Court to place a check on such illegal and undemocratic actions; lest, might will become the right.
The Judgment in Kranthikari Suraksha Rakshak Sanghatana (6-supra), cited by the learned Additional Advocate-General in support of his submission that the power to hold election includes with it the power to cancel, has no application to the facts of the present case. In that case, the question before the Supreme Court was whether once the Security Guards Board constituted under the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981, allots a guard to a principal employer it loses the power to recall, reallot or transfer such guard as the guard so allotted becomes the employee of the principal employer. While answering this question in the negative, the Supreme Court held that the Act concerned and the relevant schemes make it clear that they apply only to security guards who are pool security guards; that the Act and the scheme clearly constitute a complete and self-contained code which covers private security guards and that Section 1(4) of the Act and the various provisions of 1981 and 2002 schemes make it clear that the guard once allotted with the principal employer will not become the direct and regular employee of such principal employer and that the Board will continue to have control over the guard. While interpreting the provisions of the Act and the schemes postulated thereunder, the Supreme Court concurred with the opinion of the High Court of Bombay that the provisions of the Act and the statute make it clear that the power of allotment carries with it the implicit and the inherent power to recall, reallot and transfer a guard from one principal employer to another. The Supreme Court further observed that it needs no emphasis that the power to appoint carries with it the inherent power to terminate. These observations, in my opinion, have been made in the light of the provisions of a particular enactment and the schemes and the said observations cannot be construed as general observations applicable to all cases irrespective of the provisions governing each case.
In Palaniappa Gounder (3-supra), the Apex Court held that if there is an express provision in a statute governing a particular subject matter, there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made to govern the particular subject matter. Indeed, these principles apply with greater force to the administrative and quasi judicial bodies exercising their powers under particular statutes.
Adverting to the contention of Sri Kranti Kumar Reddy that there is variation in the copies of proceedings dated 19-2-2013 issued by respondent No.3 and filed by the petitioners, no doubt, in the earliest copy of the said report filed by the petitioners in W.P.No.5238/2013, page No.2 of the report referred to displaying of list of nominations in the notice board in Form-III, whereas in another copy of the report purported to have been issued by respondent No.3, it is stated that respondent No.3 has displayed the list of valid nominations in Form-XVI and Nil report in Form XVII. This discrepancy by itself cannot be a ground for interfering with the election process. At best, the aggrieved party can only question the same in an Election Petition before the election tribunal.
With regard to the submission of the learned counsel that Rule 22(9) of the Rules applies to the election of Managing Committee, as noted supra, sub- clause (c) of Rule 22-D made the procedure laid down under Rule 22 applicable to the elections to the Central Bank. At any rate, in the view this Court has taken and the directions that are proposed to be issued, there is no necessity of further discussion on this aspect.
In the light of the above discussion, the following conclusions emerge:
1. Irrespective of whether any situation had arisen for postponement of elections on 19-2-2013, the act of postponement of the election process after publication of the list of valid nominations by respondent No.2 without passing an order in writing with reasons for such postponement is illegal.
2. Proceedings dated 25-2-2013 under which respondent No.2 has cancelled the election process, appointed a new election officer and directed holding of fresh election, is manifestly illegal.
Following the above conclusions, proceedings dated 25-2-2013 of respondent No.2 be and hereby are set aside. Respondent No.3 shall resume the process of election from the stage where it was discontinued, namely, declaration of valid nominations for the posts of President and the Vice-President and completion of the election process on the same day on which fresh meeting is held. Respondent No.3 shall give a fresh notice to all the Directors, including the two persons who were co-opted on 19-2-2013, fix a date for the meeting, which shall be not later than two weeks from the date of receipt of this order, resume the process of election as directed hereinbefore and declare the elections at the end of the meeting. The persons who are declared to have been elected shall thereafter be entitled to function as the President and the Vice President, respectively.
The Writ Petitions are accordingly allowed.
________________________ Justice C.V. Nagarjuna Reddy Date : 17-4-2013