Bombay High Court
Kadam Rupsing Bhivji vs Returning Officer, Municipal Council, ... on 30 June, 1998
Equivalent citations: AIR1998BOM314, 1998(4)BOMCR786, (1998)3BOMLR106, 1998(3)MHLJ293, AIR 1998 BOMBAY 314, (1998) 3 MAH LJ 293, (1998) 4 ALLMR 162 (BOM), (1998) 4 BOM CR 786, 1998 (3) BOM LR 106, 1998 BOM LR 3 106
Author: A.B. Palkar
Bench: A.B. Palkar
ORDER A.B. Palkar, J.
1. The election of the Ahmednagar Municipal Council, Ahmednagar was held on 1-12-1996. The petitioner was one of the candidates who has been declared elected from Ward No. 9. The respondent No. 1 was the Returning Officer and respondents No.2 to 8 were the unsuccessful candidates.
Respondent No. 2 had secured 707 votes whereas petitioner has secured 722 votes and other respondents secured comparatively less number of votes. Petitioner was held to be disqualified for contesting the election and his election was declared void and the respondent No. 2 was declared elected.
2. Although number of other grounds were raised in the election petition, at a later stage, the petition was restricted to the disqualification of the present petitioner (original opponent No. 2 ) on the ground that he was not competent to contest the election in view of the provisions of Regulation 85(h) 3(n) of the Maharashtra State Electricity Board Employees Service Regulations and if he is disqualified then the respondent No. 2 i.e. the original election petitioner be declared elected.
3. The petition was contested mainly by the present petitioner (original opponent No. 2), who denied that he was in service of the M.S.E.B. on the date of filing nomimstion paper. The employees of the M.S.E.B. are not debarred from contesting elections. At this stage, it is not in dispute that petitioner was in service with the M.S.E.B. tilt 1990. Thereafter he had contested the election of Municipal Council in the year 1991. He also contested election of the Maharashtra Legislative Assembly in the year 1995 and at no point of time objection was taken to his candidature. He was in service of the M.S.E.B. He was working as watchman from 1977 to 1990. In the year 1990 he was transferred from Ahmednagar to Shevgaon. He was relieved from the office of M.S.E.B., Ahmednagar for joining duty at Shevgaon. It is also not in dispute that he has sent his resignation to the M.S.E.B. on 9-12-1996 i.e. after he was declared elected as Councillor in the election held on 1-12-1996. His resignation dated 9-12-1996 has been accepted by order dated 19-3-1997 with effect from 9-12-1996. Thus, the petitioner being an employee (watchman) of M.S.E.B. did not disclose this fact in his nomination paper. He continued to be in service and therefore he sent his resignation on 9-12-1996.
4. The Service Regulations governing the employee of M.S.E.B. contain a provision, 85(h) 3(n) that, an employee of the Board shall not stand as a candidate in any election to a Legislative Body or Local authority or continue to be a member of any such Body or authority nor shall he take part in such election by canvassing or otherwise, except that he may vote at such election if qualified to do so. Thus, it was contended that the petitioner being an employee of the M.S.E.B. was disqualified and was not competent to contest the election. The election is void ab initio and therefore original election petitioner (present respondent No. 2 ) be declared elected.
5. After scrutiny of the entire oral and documentary evidence and the arguments advanced the learned Additional District Judge came to the conclusion that the petitioner was disqualified from contesting election in view of the aforesaid regulation. He tendered the resignation on 9-12-1996, it was also accepted from that day, but till that date he was an employee of the M.S.E.B. and as such he was disqualified to contest the election. The original petitioner having secured 707 votes i.e. second highest number of votes, is entitled to be declared elected and, therefore, the learned Judge held that the election of the petitioner from ward No. 9 of Municipal Council, Ahmednagar is void and, consequently, he also declared the respondent No. 2 (original petitioner) namely, Kureshi Mustak Ibrahim, who had secured 707 votes to be duly elected from Ward No. 9. This order is impugned in this petition.
6. In view of the arguments advanced in detail by the learned Counsel for the petitioner Shri A.K. Gugale and learned Counsel for the respondent Shri A.B. Gatne, the material points which are necessary for the decision of this petition can be stated as below":
i) Whether the petitioner continued to be employee of the M.S.E.B. on the date of filing nomination paper as well as on the date of election ?
ii) Whether being an employee of M.S.E.B he was disqualified from contesting the election, even if it is accepted that the petitioner was disqualified by the service regulations.
(iii) Whether it was a fit case to declare the respondent No. 2 (original petitioner) elected?
iv) Whether the order declaring respondent No. 2 duly elected can be said to be purely discretionary calling for no interference in exercise of the revisional jurisdiction by this Court.
7. Coming to the factual aspects of the matter, it is an admitted position that the petitioner was an employee of the M.S.E.B. and after transfer in the year 1990, when relieved from earlier posting, he did not join new posting. He did not take any step to inform the Board that he has not joined and does not want to continue in service. The argument of the learned Counsel for the petitioner that mere absence from service for a particular period has the result of automatic termination of service and, therefore, the petitioner having remained absent right from 1990 onwards, his service stood terminated automatically is, totally unacceptable. Conduct of the petitioner in submitting resignation on 9-12-1996 shows that even petitioner did not consider that his service stood automatically terminated and he discontinued to be in the employment of M.S.E.B. His resignation was accepted with effect from 9-12-1996 and merely because no pay and allowance of the intervening period was paid or claimed, it cannot be accepted that his service stood terminated in the eye of law and the resignation and its acceptance were only technical. In any case the petitioner himself did not make out such a case before the Board seeking relief of discharge from service on the ground of automatic termination with effect from the year 1990 on the ground that he did no! join his new postings. Learned Counsel for the petitioner has relied on provisions of Regulation 34 Clause (c) which is as below :
"If an employee has, without satisfactory reasons, either overstayed the period of leave sanctioned to him or has absented himself without prior permission, or is found to be in the habit of absenting himself frequently from duty in spite of warning or deserted the post at his own, such absence shall be treated as unauthorised for which disciplinary action shall be taken by the Competent Authority as laid down under Schedule 'C' of Service Regulations against him."
A perusal of this clause shows that such type of desertion of the post by the employee is treated as unauthorised absence for which he is liable for disciplinary action. The Board has all the powers to condone such absence in case it is satisfactorily explained and that is why the petitioner also presumed that he continued to be in service and in order to put an end to the service, it was necessary for him to submit resignation.
8. Disqualifications for becoming a Councillor are prescribed in section 16 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred as "The Municipalities Act, for short).
Section 16(1)(g) provides that, "No person shall be qualified to become a Councillor whether by election, or nomination, who-
(g) is a subordinate officer or servant of Government or any local authority or holds an office of profit under Government or any local authority."
9. In view of the above definition learned Counsel for the respondent conceded that in the present case admittedly a petitioner was not an employee of any local authority. He, however, strenuously contended that the petitioner was servant of Government and for this proposition reliance was placed on section 14 of the Indian Penal Code which defines words 'servant of the Government'.
Section (14) The words "servant of Government" denote any officer or servant continued, appointed or employed in India by or under the authority of Government.
10. It must be borne in mind at this stage that the legislature has specifically used the word servant of the Government and not the word public servant. Firstly, it would be impermissible to refer to the definition contained in Indian Penal Code. Secondly even if the said definition is referred to, it is crystal clear that the words "servant of Government" even as used in I.P.C. denote any officer or servant continued, appointed or employed in India by or under the authority of Government. To buttress his argument learned Counsel contended that the State Electricity Boards are established under the provisions of the Indian Electricity Act. Section 3 of the Indian Electricity (Supply) Act. 1948 refers to constitution of the Central Electricity Authority. The State Electricity Boards are governed by the provisions of Chapter III and section 5(1) is in respect of constitution and composition of the Boards.
Section 5 sub-section (1) of Chapter III is as under :--
5(1) The State Government shall, as soon as may be after the issue of the notification under sub-section (4) of section 1, constitute by notification in the Official Gazette a State Electricity Board under such name as shall be specified in the notification.
11. The powers to make rules are conferred on the Board by section 78 and powers to make regulations are conferred by section 79. The State Government has powers to suspend or remove any member of the Board from office as provided in section 10(1) Chapter HI of the Electricity (Supply) Act, 1948. However that is not the position of the employee of the Board. The State Electricity Board, once established under the statute is an autonomous body and although there is a control of the State Government that does not extend to the appointment of employees of the Board. The Board is competent to appoint or remove its employees and the employees of the Board by no stretch of imagination can said to be employees of the State Government and as ' such servants of the Government. Therefore, firstly referring to the definition of "servant of the Government" contained in Indian Penal Code is impermissible and even if it is presumed for the sake of argument that it is permissible, the employees of the Board do not become servants of the Government in any sense of the term. If it were so, then the State Government would have powers to appoint or nominate or remove from service any employee of the Board. The State Government also does not bear any portion of the salary payable to the employees of the Board and the employees of the Board, therefore, cannot said even to hold an office of profit under the State Government.
12. Another aspect of the matter is that qualification for becoming Councillor are prescribed in detail in section 16 of the Municipalities Act and the provisions are exhaustive. If the legislature wanted to include employees of the Board which are controlled by the Stale Government and are established under the Indian Electricity (Supply) Act, 1948 or such other statutory bodies then the said terminology would have been added to sub-section (1) clause (g) of section 16 of the Municipalities Act. However, when the Legislature has confined the inclusion of subordinate officers or servants of the Govt. or any local authority or persons holding office of profit under the Government or local authority, then the courts cannot add something to the provision which the legislature did not deem necessary to include.
13. Section 16 (1) describes disqualifications for becoming Councillor in the following manner ;
16. (1) "No person shall be qualified to become a Councillor whether by election, or nomination, who -
(a-1) has been so disqualified by or under any law
(i) for the time being in force for the purpose of elections to the Legislature of the State:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years.
(ii) made by the Legislature of the State of Maharashtra; This provision shows that no person can be qualified under any law for the time being in force for the purpose of election to legislature of the State or if he is so disqualified under any law made by the legislature of the State.
14. The learned Addl. District Judge has placed reliance on Regulation 85(h) 3(n) which is as below:
"An employee of the Board shall not stand as a candidate in any election to a Legislative Body or Local Authority or continue to be a member of any such Body or Authority nor shall he take part in such election by canvassing or otherwise, except that he may vote at such election if qualified to do so"
According to the learned District Judge this disqualification having been prescribed by the Regulations, the petitioner who was an employees of the Board on the date of election was disqualified from contesting the election and, as such his election was liable to be declared void. The learned Counsel for the respondent has strenuously supported this reasoning of the learned Judge and has contended that since the Regulations are made in view of the powers conferred by the Statute on the Board, they create an additional ground of disqualification than the grounds provided by section 16 of the Municipalities Act. Although the argument on the face of it appears attractive, it is not possible for me to accept it in view of law laid down by the Apex Court. On behalf of the petitioner it was contended that section 16(1) of the Municipalities Act clearly shows that no person shall be qualified to become a Councillor if he is disqualified by any "law" enacted by the State Legislature or is disqualified from contesting election to the State Legislature.
15. The Employees Service Regulations which are issued under the provisions of section 79 of the Electricity (Supply) Act are no doubt made for governing the conduct of the employees of the Board. However, the effect thereof is that the members of the Board should confine their conduct within the limits of the regulations and if there is a transgression or breach of the Regulations, they are liable to disciplinary action by the Board. It does not, however, mean that by enacting such Regulations, the Board can introduce additional disqualification from contesting elections to its employees. If the conduct of the employee in contesting election amounts to misconduct under the service rules or regulations, then he may be liable to face a departmental enquiry and the consequences thereof but at the same time, he cannot be said to be disqualified from contesting elections. The Regulations can by no stretch of imagination be said to be a law enacted by legislature of the State. If the Legislature wanted to incorporate such disqualification, then i! could have incorporated the same in Municipalities Act, wherein exhaustive provisions are made in section 16 which prescribes different types of disqualifications. When persons holding office of profit under the State Government are included in the purview of section 16(1) (g) which imposes disqualification, the legislature could have also included the persons holding office of profit under any statutory Board, Corporation or Government company but if the legislature, in its wisdom, did not think it necessary to include such employees and to impose an additional disqualification on the ground of holding office of profit under any statutory Board or Corporations then they cannot be included in the said definition by interpreting the word "servant of Government" or person holding office of profit in the manner in which it has been contended on behalf of the respondent. It would amount to including some more categories to section 16 (1) (g) which the legislature did not deem necessary to include.
16. Shri Gugle, learned Counsel for the petitioner relied on the judgment of the Supreme Court Abdul Shakur v. Rikhab Chand and another. In this case the Election Tribunal had set aside the election of the appellant. Moulana Abdul Shakur was elected to the Council of States by the Electoral College of Ajmer which consisted of 30 members constituting the State Legislature of Ajmer.
He received 19 votes against 7 polled in favours of ihe other candidate who was respondent No. 1 in appeal. The total number of valid votes polled was 26 and there were 3 invalid votes. The appellant was holding office of Manager (Mohatmin) in the Madarsa Durgah Khawaja Akbari which is a school teaching Persian, Arabic and Muslim Theology. It was managed and run by Government of Nizam of Hyderabad. In 1951 this school was taken over by the Durgah Committee. On 28-2-1955, the appellant was given an honorary appointment of Mohatmin (manager) of the school by the Administrator, Durgah Khawaja Sahib. He was to work under the Administration and was to hold charge of the management of the school. From May, 1955 he was being paid Rs. 100/- per month which had been described as salary or honorarium at different places.
Article 102(1)(a) of the Constitution provides :-
102 (1) "A person should be disqualified for being chosen as, and (or being, a member of either House of Parliament.
(a) If he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder.
The Supreme Court observed in para No. 12 and 13 as under;
"12) No doubt the Committee of the Durgah Endowment is to be appointed by the Government of India but it is a body corporate with perpetual succession acting within the four corners of the Act. Merely, because the committee or the members of the committee are removable by the Government of India or the Committee can make bye-laws prescribing the duties and powers of its employees cannot in our opinion convert the servants of the committee into holders of office of profit under the Government of India. The appellant is neither appointed by the Government of India nor is removable by the Government of India nor is he paid out of the revenues of India. The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government though payment from a source other than Government revenue is not always a decisive factor.
But the appointment of the appellant does not come within this test.
(13) A number of election cases reported in the Election Law Reports were cited before us but they were decided on their own facts and are of little assistance in the decision of the present case. The test of the power of dismissal by the Government or by an officer to whom such power has been delegated which was pressed in support of his case by the respondent is equally inapplicable to the facts of the present case because the appellant cannot be dismissed by the Government or by a person so authorised by the Government. He is a servant of the statutory body which in the matter of its servants acts within the powers conferred upon it by the Statute."
17. A similar question arose in Manohar Nathusao Samarth v. Marotrao and others. The appellant in that case was a candidate for Election of Councillor to the Municipal Corporation of City of Nagpur from Ward No. 34. The appellant secured large lead over his opponent and was declared elected. The election of the appellant was challenged on the ground that during the election the appellant was holding the post of Development Officer and was salaried employee of the Life Insurance Corporation of India. Under Regulation 25 of L.I.C. (Staff) Regulation, 1960 framed by the Life Insurance Corporation, all its employees were under an embargo on taking part in Municipal elections, save with the permission of the Chairman.
18. The crucial issue is whether this taboo in Regulation 25 spell electoral ineligibility or merely sets rules of conduct and discipline for employees, violation of which will be visited with punishment but does not spill over into the area of election, as stated in para (4) of the judgment.
19. The Supreme Court by majority held that Regulation 25(4) is not to impose ineligibility on an L.I.C. employee to be a member of a Municipal Corporation. Its effect is not on the candidature but on the employment itself.
20. The Supreme Court has also referred with the approval to the observations of the Calcutta High Court in Sarafatulla Sarkar v. Suraj Kumar, and also another a Full Bench decision of the Punjab and Haryana High Court in Uttam Singh v. S. Kripal Sirigh, .
21. In para No. 5 the observations of the Chief Justice of the Calcutta High Court have been quoted with approval. The observations are :-
"It appears to me to be 'abundantly' clear that in so far as the Government Servants' Conduct Rules provide for Discipline and Document (conduct?) and, in doing so, forbid conduct of certain varieties their aim is merely regulation of the conduct of Government servants, as such servants, and that aim is sought to be attained by prescribing certain rules of correct conduct and laying down penalties for their breach. If a Government servant disregards any of the Rules which bear upon discipline and conduct and conducts himself in a manner not approved by the Rules or forbidden by them, he may incur the penalties for which the Rules provide. It cannot, however, be that any of his other rights as a citizen will be affected. Taking the present case, if a Government servant violates the prohibition against offering himself as a candidate for election to one or another of the bodies mentioned in Rule 23, he may incur dismissal or such other penalty as the authorities may consider called for, but the breach of the conditions of service committed by him cannot disenfranchise him or take away from him any of the rights which he has in the capacity of the holder of franchise."
22. His Lordship Justice Tulzapurkar has taken a dissenting view. However, the judgment of majority is binding on this Court. The issue before the Punjab and Haryana High Court in (supra) was same and also pertains to the effect of Regulation No. 25 of the L.I.C. (Staff) Regulations, 1960. The Full Bench has taken same view.
23. The Division Bench of the Andhra Pradesh High Court has also taken a similar view in , Ummidi Narayan Rao v. Election Tribunal (Principal, Subordinate, Judge, Kakinda and another).
The observations in para No. 16 page 246 are as below :-
"We do not think it appropriate to import the concept of disqualification under section 73 of the Act, or, to seek guidance from the said section for interpreting disqualification imposed by section 15(2)(b) of the Municipalities Act. As already stated, we are concerned with the disqualification imposed by the terms of section 15 (2) (b) of the Municipalities Act.
When a law dealing with the subject of Local Bodies and which has received the assent of the President, has made a specific provision regarding disqualification, it may not be appropriate to look for its interpretation to an enlarged area of disqualification than what is permissible by statute. Election to local bodies is a creature of statute. Right to contest and right to hold office are all creatures of statute. There is no scope for ethical values to be involved in ascertaining what the scope and meaning of the disqualification under the statutory provisions are. It is for the legislature to provide disqualifications having wider or narrower scope and also to provide for time-frame during which disqualification is to operate."
24. Thus, in view of the law laid down by the Apex Court it is crystal clear that the disqualification prescribed in Regulation No. 85 (h) 3(n) would not prevent the employee of the Board from contesting election or taking part in the election, but if he contests or otherwise takes part contrary to the Regulation then he exposes himself to a disciplinary action. It has however no effect of invalidating the election. The election cannot be held void on the ground of such disqualification prescribed by the Regulation governing the service conditions of the petitioner as an employee of the Electricity Board.
25. In addition as already pointed out, even the Maharashtra Municipalities Act section 16 (1) (g) prescribes that no persons shall be qualified to become a Councillor who has been disqualified by or under any law made by the State Legislature or by under any law for the time being in force for the purpose of election to the Legislature of State. The Regulations cannot be said to a Law enacted by Legislature of State and, therefore, the petitioner was not disqualified from contesting election and the learned Additional District Judge was clearly in error in holding that the petitioner was disqualified from contesting electron in view of the provisions of Regulation 85 (h) 3(n) of the Employees Service Regulations.
26. This takes me to consider another aspect of the matter. The learned Additional District Judge has not only held the election of the petitioner void, but has also declared the second respondent to be duly elected candidate. For this purpose the learned Judge has relied on Vishwanatha Reddy v. Konappa Rudrappa. However, the most important distinguishing feature of the case before the Supreme Court was that only two candidates were in the field and after finding the election of the petitioner void, the respondent was declared elected. During the course of judgment the Apex Court has observed in para No. 12, "But in our judgment the rule which has prevailed in the British Courts for a long time has no application in our country. Section 53 of the Representation of Peoples Act renders a poll necessary only if there are more candidates contesting the election than the number of seats contested.
If the number of candidates validly nominated is equal to the nurnber of seats to be filled, no poll is necessary." (underlining is mine)
27. In the present case, admittedly there were large number of candidates and it was, therefore, immaterial to consider as to which defeated candidate had polled what number of votes. Another aspect of the matter is that the electorate had no knowledge of the so called disqualification of the petitioner. When there was no material before the Court that there was any notice of the so called disqualification, the Court could not presume it that the votes caste in favour of the petitioner should be treated as thrown-away votes and therefore, the respondent No. 2 who has secured more votes than the remaining defeated candidates, is liable to be declared elected. Even if my view on the first point regarding disqualification had been similar to that of the learned trial Judge, I would still hold that the order declaring respondent No. 2 elected is not legally sustainable.
28. Reliance is placed in this regard on 1977 Mah.L.J. 246, Pyare Saheb Gulzar Chootumiya Sawazi v. Dashrath Wasudeo Datt and others. This was a case under City of Nagpur Corporation Act. The Division Bench has observed, "Even though the District Judge was right in setting aside the election of Pyare Saheb Gulzar Chootumiya from Ward No. 31 of the City of Nagpur. However, we find that the declaration granted that the election petitioner i.e. Dashrath Wasudeo Daff stands duly elected from that ward was erroneous."
"Note (B) Rights of candidates--More than two candidates contesting election--Court declaring election of returned candidate null and void on ground of disqualification-Declaration in favour of candidate securing next highest number of votes does not automatically follow--It has to be shown that votes secured by disqualified candidate should be treated as thrown away."
29. In , Dnyaneshwar Rambhau Barabudhe v. Returning Officer/Dy.Collector (EGS), learned Single Judge of this Court has taken same view, "Held that when there are more candidates than two the question of notice to the voters of its disqualification becomes significant for the purpose, of granting declaration. In case of thrown away votes if there are more candidates than two, then in such circumstances evidence in respect of notice to the voters in respect of disqualification is significant. There was absolutely no evidence led by the candidate granted the declaration before the trial Court that the voters were given a notice of disqualification of the returned candidate....."
30. The learned Counsel for the respondent brought to my notice that the votes polled by other candidates were insignificant, In fact, this argument is also not correct. Even according to the affidavit filed by the respondent in this Court along with one document which is a part of the trial Court's record in respect of the result of election, shows that the other six candidates together had polled 436 votes which cannot be said to be insignificant, when the difference between the defeated and elected candidates is only of 14 votes. Moreover as already pointed out there was no notice of disqualification to the electorate and no such case is made out and the Court cannot substitute its own judgment for the wisdom of the electorate by declaring the second highest candidate to be elected as nobody can imagine the situation, if the election had been directly between the second respondent and the other candidates after disqualifying the petitioner.
31. In this regard the learned Counsel for the respondent drew my attention to section 21 of the Municipalities Act. Section 21 sub-section 10 states as under :-
If the petitioner has, in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate has been duly elected and the Judge is satisfied that -
(a) the petitioner or such other candidate received sufficient number of valid votes to have been elected.
(b).....
After declaring the election of the returned candidate void, declare the petitioner or such other candidate to have been duly elected.
There are two provisos to this section and a reference to the proviso shows what the Court has to do if there is equality of voles found between the candidates.
32. Thus in a case where there are more than two candidates, the candidate securing second highest number of votes cannot be declared elected and in such cases the only alternative left is to go through the election process again. There can be no short cut and therefore, in the present case the order declaring the second respondent elected cannot be sustained even otherwise.
33. The finding of the learned Additional District Judge that petitioner was disqualified is legally unsustainable and the learned Additional District Judge having wrongly interpreted the provisions of Service Regulations to disqualify the petitioner from contesting election has wrongly exercised the jurisdiction vested in him by law. In my view the declaration that second respondent was duly elected is also in wrongful exercise o! jurisdiction as there were number of candidates and there was no evidence that the electorate had any notice of the so called disqualification. The petition must, therefore, succeed.
Petition is allowed.
The order of the 3rd Additional District Judge, Ahmednagar dated 28-11-1997 in Election Petition No. 7 of 1996 declaring the election of the petitioner Kadam Rupsing Bhivaji from Ward No. 9 of Ahmednagar Municipal Council, Ahmednagar is void, is hereby set aside.
The Election Petition No. 7 of 1996 filed respondent No. 2 Kureshi Mustak Ibrahim is dismissed with costs throughout.
Rule is made absolute in aforesaid terms.
34. Petition allowed.