Patna High Court
Rameshwar Oraon vs State Of Bihar And Ors. on 8 March, 1995
Equivalent citations: AIR1995PAT173, AIR 1995 PATNA 173, (1995) 1 BLJ 725 (1995) 1 PAT LJR 543, (1995) 1 PAT LJR 543
Author: Asok Kumar Ganguly
Bench: Asok Kumar Ganguly
ORDER Asok Kumar Ganguly, J.
1. The subject matter of challenge in this writ petition are the orders issued by respondent No. 2. Those orders have been annexed as Annexures 7 and 9 to this writ petition.
2. The case of the petitioner is that on 29th Nov. 1994 on promotion he joined as Inspector General of Police, Patna Zone and he is continuing as such even today. The petitioner challenges the order of the Election Commission of India dated 24th Feb. 1995 and in paragraph 7 thereof it has been stated that the Commission, after careful consideration of the entire circumstances, documents and communications on record and after keeping in view all relevant factors, directed that the petitioner be immediately transferred and debarred from any election related work. Similar direction was also passed in respect of another Officer Mr. R.D. Subarno under the said order. This order has been given reasons for the direction it contains and has been annexed as Annex.-7 to the writ petition. The petitioner has also impunged another communication which is a fax message dated 28th Feb. 1985 issued by the Secretary, Election Commission of India, New Delhi conveying the displeasure of the Election Commission as there has been delay on the part of the State Government in carrying out the direction contained in the order dated 24th Feb., 1995. In the said fax message it is stated that out of the two Officers, the Commission has already received information about the compliance of its order dated 24th Feb., 1995 in respect of Sri R.D. Subarno. As the Commission did not receive any information in respect of the compliance of the said order dated 24th Feb., 1995 in regard to the writ petitioner, the said fax message was sent conveying the displeasure of the Election Commission about the delay. It is further communicated in the said fax message that any further delay will be most seriously viewed by the Commission as an infringement of the possibility of free and fair election.
3. It may be mentioned here that after receiving the said communication dated 24th Feb. 1995 (Annexure-7) the State Government sent a fax message dated 26th Feb., 1995 (Annexure-8) to the Secretary of the Election Commission of India, New Delhi to the effect that the direction relating to the transfer of the petitioner may kindly be reconsidered. It is thus clear from the fax message dated 28th Feb., 1995 (Annexure-9) issued by the Secretary of the Election Commission of India that the Commission is insisting on the transfer of the petitioner and has not possibly reconsidered its previous order dated 24th Feb., 1995 despite the fax message of the State Government dated 26th Feb., 1995 (Annexure-8).
4. This Court was informed by the learned Advocate General, who appeared for the State of Bihar, on 7th March, 1995 that despite the previous communication made by the Election Commission, the petitioner has not been transferred. Learned counsel, who is present in Court today, on behalf of the State Government also informs the Court that the petitioner has not yet been transferred. In the background of this factual position, the Court proceeds to deal with the submissions made by the learned counsel appearing for the parties.
5. Mr. Bibhuti Prasad Pandey, learned counsel for the petitioner, has assailed the directives given by the Election Commission mainly on the ground of lack of jurisdiction and authority, on the part of the Election Commission to issue the impunged direction. Learned counsel has drawn the attention of the Court to Article 324 of the Constitution of India and has submitted that the power which is given to the Chief Election Commission under the said Article does not authorise him to issue a mandate similar to the one which has been issued under the impunged orders. Learned counsel for the petitioner further tried to draw sustenance for this argument from Sub-article (6) of Article 324 of the Constitution of India and submitted that the President, or the Governor of a State, when so requested by the Election Commission, shall make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission under Article 324(1). Therefore, the submission of the learned counsel for the petitioner is that the power of the Election Commission under Article 324(1) read with 324 (6) of the Constitution is confined to the making of a request either to the President or the Governor, as the case may be, for making available to the Commission such staff as may be necesssary for the discharge of the functions conferred on it under clause (1) of Article 324 of the Constitution but in exercise of such power it cannot pass an order of transfer of an employee of the State Government.
6. Learned counsel, for the petitioner has not, as obviously he could not, dispute the position that the petitioner was a Police Officer designated by the State Government and was connected with election duty.
7. Learned Advocate General appearing on behalf of the State Government has also stated that the stand of the State Government is clear from its fax message dated 26th Feb., 1995 (Annexure-8) and he further stated that the power of the Commission in this situation is circumscribed by the provisions of Section 28 A of the Representation of the People Act, 1951 (hereinafter referred to as the said Act). The learned Advocate General further stated that the communication of the Election Commission dated 24th Feb., 1995 must be read to mean that the direction was given only to the effect that the petitioner will be transferred and debarred from election related work but the said communication cannot be construed to mean that he will be transferred from the place of posting. Learned Advocate General has further submitted before this Court that it is open to the State Government to decide whether or not they will transfer the petitioner and if the State Government has not transferred the petitioner, it has not committed any illegality.
8. Learned counsel appearing for the Election Commission has reiterated, with reference to Article 324 of the Constitution, the power of the Commission and has submitted that the purpose of ensuring free and fair poll in the State, the order dated 24th Feb., 1995 can be passed by the Election Commission and by passing the said order, the Election Commission has not over stepped the authority or jurisdiction given to it under the Constitution.
9. In order to decide the questions which are at issue in the present writ petition, the width and ambit of power of the Election Commission in the context of Article 324 of the Constitution is to be considered.
10. The power of the Election Commission in the context of Article 324 of the Constitution has been interpreted by the Supreme Court in several judgments and one thing is very clear that the powers of the Election Commission under Article 324 of the Constitution are plenary in character. The same is clear from the expression of such wide import used such as 'superintendence', 'control' and also from the word 'vest' occurring in Article 324 of the Constitution. The aforesaid words, specially the word 'control' and the word 'vest', denote that the power of the Commission is very wide, deep and pervasive. The said power has been conferred for achieving a salutory purpose, namely, the ensuring of a free and fair election which can only sustain the democratic fabric of the country. The said power has been so widely conferred also for the purpose of ensuring the independence of the Election Commission in the matter of holding free and fair election.
11. Article 235 of the Constitution of India, in a different context, uses almost similar expressions such as 'vest' and 'control' while conferring power on the High Court in the matter of control over Subordinate Courts. The provisions of Article 235 of the Constitution have been construed in several judgments of the Supreme Court to mean that such control has been vested in the High Court for the purpose of ensuring independence of the judiciary and also for ensuring free and fair administration of justice.
12. It may not out of place to notice that both the free and fair administration of justice and the holding of free and fair election serve one common end, namely, to preserve the basic framework of the Constitution within which runs the rule of law safeguarding the basic rights of the people.
13. In the case of A.C. Jose v. Sivan Pillai reported in AIR 1984 SC921 the ambit of the power of the Election Commission under Article 324 of the Constitution of India came for consideration and in that case the learned Judges of the Supreme Court after considering its previous judgments have been pleased to hold that only there are two limitations on the power given to the Election Commission under Article 324 of the Constitution.
Those limitations are (i) When Parliament or any State Legislature makes a valid law relating to or in connection with elections, the Commission shall act in conformity with and not in violation of such provisions, (ii) Secondly the Commission is responsible to the rule of law and must act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as a fairplay-in-action. These observations occur in paragraph 18 at page 925 of the report.
14. In the subsequent judgment of the Supreme Court in the case of Kanhiya Lal Omar v. R.K. Trivedi reported in AIR 1986 SC 111 again the provisions of Art, 324 of the Constitution came up for consideration. The learned Judges of the Supreme Court has Clarified the position by saying as follows at page 118 of the report.
"xxx xxx xxx xxx Article 324(1} of the Constitution which is plenary in character can encompass all such provisions. Article 324 of the Constitution operates in areas left un-occupied by legislation and the words 'superintendence', 'direction', and 'control' as well as 'conduct of all elections' are the broadest terms which would in'clude the power to make all such provisions."
15. Now here the admitted position is that in matters of exercising control over the Police Officers, during the period when the Election process is on, the powers of the Election Commission have been statutorily provided under Section 28A of the said Act. The said provisions of Section 28 A of the said Act are set out below:--
"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."
16. The statement of Objects and Reasons behind enacting the said provision by way of amendment by Act I of 1989 are set put below:--
"The Election Law, so far as elections to the Parliament and State Legislatures are con-cerned is contained in the Representation of the People Act, 1950 and the Representation of the People Act, 1951. The former deals with the matters pertaining to elections prior to the stage of actual elections and the latter deals with the actual conduct of elections and all matters connected herewith. These two Acts have been amended periodically in order to bring about improvments in the election system in the light of the experience gained in the working of these Acts.
2. Our election system has stood the test of time. Several rounds of elections and bye-elections have been held by the Election Commission and the poll has, on the whole, been free and fair. The people of India have also shown considerable maturity in exercising their right of franchise.
3. The question of introducing electoral reforms and making suitable changes in the election law to prevent the occurrence of corrupt practices, which vitiate the conduct of free and fair election, have been under consideration for some time now. The experience gained over the years, also emphasises the need for further strengthening the measures for ensuring free and fair elections. The Election Commission has also forwarded several proposals for electoral reforms.
4. The various proposals for electoral reforms were widely debated. Government were keen to bring about necessary electoral reforms, consultations were held with the political parties in order to ascertain their specific views in the matter. Keeping in view the various suggestions, it has been decided to bring about amendment in the existing election laws.
5. The proposals contained in the present Bill are briefly explained below:--
(i) At present, all the work relating to the preparation, revision and correction of the electoral roll and the actual conduct of elections, is carried out by the designated officers of the State Governments concerned. It is felt that the provisions of the Representation of the People Act, 1950 and the Representation Of the People Act, 1951, in this regard should be clearly defined so that during the relevant period, these Officers would, while discharging functions relating to elections, be under the control, superintendence and discipline of the Election Commission."
17. From a perusal of the said provision along with the Objects and Reasons, it is clear that the anxiety of the law makers is to make the provisions of the said Act full-proof to ensure a free and fair election. That is why during 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, any police officer of the State Government shall be subject to the control, superintendence and discipline of the Election Commission. It is also made clear in the said Section 28 A of the said Act that during the said period the Police Officers of the State Government shall be deemed to be on deputation to the Election Commission.
18. Section 28A of the said Act thus contains a deeming provision. It is a well known device adopted by the Legislature of introduction of a legal fiction for achieving a purpose. Whenever a legal fiction is introduced, the Court interpretting the same in a statute must first ascertain the purpose. Once the purpose is ascertained the Court must not hesitate to follow or give effect to the 'enevitable corollaries' of the introduction of such fiction for the purpose to be achieved. In the instant case, the obvious purpose behind the introduction of such legal fiction in making the police officers of the State subject to the control, superintendence and discipline of the Election Commission is to maintain law and order in such a way that it may become conducive for holding a free and fair election. It also cannot be disputed that maintenance of law and order is inextricably linked up with the holding of a free and fair election. In other words, if the law and order is not maintained properly, the concept of a free and fair election becomes a mere facade or a teasing illusion. Therefore, the purpose behind introducing such a legal fiction is to arm the Election Commission with sufficient authority for conducting a free and fair election with total control over the Officers who are to maintain law and order during the period when the election process is on. Now once this purpose is clear to this Court, as it obviously is, there cannot be any difficulty for the Court to* follow the inevitable corollaries which will follow from the exercise of such power. One of the inevitable corollaries of exercise of such power is that it enables the Election Commission to decide the matter of posting of such police officers, at least, during the aforesaid limited period, for ensuring a free and fair election.
19. In this connection the Court is reminded of the oft quoted dictum of Lord Asquith in the interpretation of such legal fiction in the decision of the House of Lords in the case of East End Dwellings Co. v. Finsbury B.C. reported in 1951 (2) All ELR 587. In the said decision Lord Asquith, in his matchless words made the following observations at page 599 of the report.
"If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed; must inevitably have followed from or accompanied it.
xxx xxx xxx xxx xxx The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to, the inevitable corollaries of that state of affairs."
20. Therefore I hold that once it is provided that the Police Officers of a State for a limited period are subject to the control, superintendence and discipline of the Election Commission, the inevitable corollaries of such power is that Election Commission can direct the posting of such Police Officer for the purpose of ensuring a free and fair holding its election. The Election Commission was therefore, within of authority in passing the mandate in its order dated 24th Feb. 1995. In my opinion, it has also the power to see that its mandate is not frustrated but is followed by the State Government and as such there is no illegality in issuing subsequent direction by the fax message dated 28th Feb. 1995 (Annexure-9).
21. Now the next question which arises is whether the State Government can flout the said mandate with impunity of act in such a manner as to render it futile.
22. The learned Advocate General has, of course, stated that the said directive only meant debarring the petitioner from election duty and has nothing to do with his transfer. This Court is unable.to accept the aforesaid reading of the order of the Election Commission dated 24th Feb. 1995 inasmuch as by the subsequent fax message dated 28th Feb. 1995 the Election Commission made absolutely clear as to what is meant by its previous communication dated 24th Feb. 1995. From a combined reading of the two communications dated 24th Feb. 1995 and 28th Feb. 1995, it is clear to the Court that the Election Commission wanted that the petitioner should not only be debarred from election duty but he should also be transferred from his present posting. As such this Court is unable to accept the aforesaid interpretation of the learned Advocate General. ,
23. Now the question is whether the State Government is legally bound to carry out the directives of the Election Commission. In my view, as the Government is, presumably, one of laws and not of men, it must act in accordance with the lawful direction given by a Constitutional authority in exercise of its constitutional power which has been made clear in the legislative mandate of Section 28A of the said Act. It need not be emphasized that the executive power of the State Government must be exercised or carried on in accordance with law made by the Legislature. The said position is made amply clear under Article 256 of the Constitution. Article 256 is set out below:--
"The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose."
24. In that view of the matter, I hold that h is incumbent upon the State Government to act in accordance with the direction given by the Election Commission of India inasmuch as it is also the obligation of the State Government to hold a free and fair election. This Court, therefore, does not at all approve the stand taken by the State Government in this regard.
25. Learned counsel for the petitioner has, of course, sought to argue that by the impugned order some penal consequences have been fastened upon the petitioner. This Court is unable to accept the said contention inasmuch as it is an accepted position in law that an order of transfer is not penal in nature and an order of transfer is an accepted condition of service and such order can he passed in public interest. In the instant case, the order of transfer has been passed by a Constitutional functionary in order to ensure free and fair election. Therefore, the content of 'public interest' in passing the order of transfer is patent and manifest.
26. Another argument has also been made by the learned counsel for the petitioner that the said order has been passed without giving any opportunity of hearing to his client. It is settled beyond any manner of controversy that principles of natural justice are not to be put in a strait-jacket nor is there any rigid formula in respect of these principles. Such principles always admit of situational fluidity and variation. In the instant case, no right of the petitioner has been infringed. No prejudice has been caused to him by the order impugned by him. In that view of the matter also application of principles of natural justice is ruled out. Normally principles of natural justice are never followed or are even required to be followed before passing an order of transfer. Therefore, the aforesaid contention of the learned counsel for the petitioner is also not acceptable to this Court.
27. The only other contention which remains is whether this Court can in this case by virtue of its power of judicial review set aside the order passed by the Election Commission. This Court has undoubtedly the power of judicial review even over the acts and actions of the Election Commission, namely, when it acts in violation of the provisions under the Constitution and also where its actions are in excess of jurisdiction or when its actions are otherwise vitiated by bad faith, mala fide etc. However, it is also well settled that such power of judicial review is to be exercised even in a proper case under certain self imposed restrictions. Here the election process is on and the election is imminent. In another case relating to a pending election, the Supreme Court in the ease of Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman reported in AIR 1985 SC 1233 observed as follows at 1246 of the report:
"It is the duty of the courts to protect and preserve the integrity of all constitutional institutions, which are devised to foster democracy. And when the method of their functioning is questioned, which it is open to the citizen to do, courts must examine the allegations with more than ordinary care. The presumption, be it remembered, is always of the existence of bona fides in the discharge of constitutional and statutory functions. Until that presumption is displaced, it is not just or proper to act on pre-conceived notions and to prevent public authorities from discharging functions which are clothed upon them."
28. Again the Supreme Court in the case of the Election Commission of India v. Shivaji reported in AIR 1988 SC 61 has made the following observations at page 66 of the judgment which are set out below:--
"The success of democracy is dependent upon the co-operation of the Legislature, the Executive, the Judiciary, the Election Commission, the Press, the political parties and above all the citizenry and each of them discharging the duties assigned to it. Every member of the body politic should play his ligitimate role for the success of the democracy. Some times the success of democracy also depends upon the observance of restraint on the part of the constitutional functionaries."
29. In the facts of this case there is no serious allegation of bad faith and mala fide against the respondent No. 2 or against the officers acting under the instructions of the said respondent. The said respondent No. 2 is the best judge to assess the present situation and take steps to make it conducive to the holding of a free and fair poll. Nothing has been pleaded to demonstrate that the respondent No. 2 is not acting in public interest. Therefore, the presumption of regularity attached to the acts of the respondent No. 2 has not been dislodged. The Court is thus unable to interfere with the impugned orders.
30. As all the points raised above, have been over ruled, this writ petition is dismissed at the admission stage itself. There will be no order as to cost.