Bombay High Court
Narayan Dinbaji Jambhule vs Election Commission Of India Through ... on 19 January, 2017
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 EP4.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
ELECTION PETITION NO.4 OF 2014
Narayan Dinbaji Jambhule,
aged about 60 Yrs.,
Occu. Retired Employee / Social Worker,
R/o 24, Yogkshem Layout, Sneh Nagar,
Nagpur - 440 015. .. PETITIONER .
// VERSUS //
1.
Election Commission of India,
through its Chief Election Commission,
Nirvachan Sadan, Ashoka Road,
New Delhi. ..(Deleted)
2. The Chief Electoral Officer,
Maharashtra State, New Administrative
Building, Opposite Mantralaya,
Mumbai. ..(Deleted)
3. The Collector / District Election Officer,
Gadchiroli. ..(Deleted)
4. The Returning Officer,
68, Gadchiroli (S.T.),
Legislative Assembly Constituency,
At Gadchiroli. ..(Deleted)
5. Dr. Deorao Madguji Holi,
aged Adult, Occu. Govt. Servant,
R/o Hanuman Ward No.1
At Post Tq. Chamorshi,
Distt. Gadchiroli.
6. Atmaram Bhagashri Dharmraobaba,
aged Adult, Occu. Not known,
R/o At Post Aheri Rajwada,
Ward No.2, Tah. Aheri,
Distt. Gadchiroli.
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7. Kesari Rushiji Usendi,
aged Adult, Occu. Not known,
R/o At Post Gatta, Tq. Dhanora,
Dist. Gadchiroli.
8. Vilas Shamrao Kodape,
aged Adult, Occu. Not known,
R/o At Post Chatgaon, Tq. Dhanora,
Distt. Gadchiroli.
9. Saguna Penta Talandi,
aged Adult, Occu. Not known,
R/o Ashirwad Nagar, Chamorshi,
Road, Gadchiroli.
10. Ranjeeta Vilas Kodape,
aged Adult, Occu. Not known,
R/o Teacher Colony, Side of
Chankabai Nagar, At Post
Tq. Distt. Gadchiroli.
11. Kusum Harba Alam,
aged Adult, Occu. Not known,
R/o At Post Muashikhamb,
Tq. and Distt. Gadchiroli.
12. Moreshwar Ramchandra Kinake,
aged Adult, Occu. Not known,
At Post Tq. Chamorshi,
Distt. Gadchiroli.
13. Diwakar Gulab Pendam,
aged Adult, Occu. Not known,
R/o Wagadkhidki Ganeshpal
Ward, 12 Chandrapur.
14. Devidas Govinda Madavi,
aged Adult, Occu. Not known,
R/o at Post Kaneri Toli,
Tq. and Distt. Gadchiroli.
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15. Jaishree Vijay Welda,
aged Adult, Occu. Not known,
At Pulkhal, Post Kaneri,
Tq. and Distt. Gadchiroli.
16. Sunanda Soma Atla,
aged Adult, Occu. Not known,
At Post Karwafa, Tah. Dhanora,
Distt. Gadchiroli.
.. RESPONDENTS
.
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Shri P.S. Wathore, Advocate for the petitioner.
Shri G.N. Khanzode, Advocate for the respondent No.5.
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CORAM : Z.A.HAQ, J.
DATED : JANUARY 09/19, 2017.
ORAL JUDGMENT :
1. Heard Shri P.S. Wathore, Advocate for the petitioner and Shri G.N. Khanzode, Advocate for the respondent No.5.
2. The petitioner has filed this petition under Section 81 of the Representation of the People Act, 1951 (for short "Act of 1951") praying that the decision of the Returning Officer dated 30 th September, 2014 accepting the nomination paper of respondent No.5 - Dr. Deorao Madguji Holi be quashed. The petitioner has prayed for declaration that the election of respondent No.5 from 68, Gadchiroli (S.T.) Legislative ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 4 EP4.14.odt Assembly Constituency of State of Maharashtra is void. The petitioner has prayed that the election of respondent No.5 as Member of Legislative Assembly from the above Constituency be set aside and fresh elections for the above referred Constituency be ordered.
3. The challenge of the petitioner is substantially based on the ground that on the date of submission of the nomination paper, the respondent No.5 was holding "office of profit" being in Government employment as Medical Officer, in Class-II, Group "A" Services and, therefore, he was disqualified to contest the election and his nomination paper could not have been accepted by the Returning Officer. The claim of the petitioner is that because of the improper acceptance of the nomination paper of respondent No.5, the result of the election is materially affected and, therefore, the election of the respondent No.5 be set aside and fresh elections be ordered. The petitioner has relied on the provisions of Article 191(1)(a) of the Constitution of India and Section 100(1)(d)(i) of the Act of 1951.
4. It is not disputed by the contesting parties that the respondent No.5 - Dr. Deorao Madguji Holi was working as Medical Officer on temporary basis in the pay-scale of Rs.8,000/- - 13,500/-
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scale of Rs.8,000/- - 13,500/- in Maharashtra Medical and Health Services Group "A". Pursuant to the above order, the respondent no.5 continued in the post of Medical Officer.
According to the petitioner, the respondent No.5 continued as Medical Officer on 30th September, 2014 when the nomination paper of respondent No.5 was accepted by the Returning Officer. The petitioner claims that even subsequently i.e. on the date of voting and declaration of result and subsequent to that also, the respondent No.5 continued as the Medical Officer in the employment of the Government of Maharashtra.
According to the respondent No.5, he had given notice dated 19th August, 2013 disclosing his intention/ decision to resign from the post of Medical Officer w.e.f. 30 th October, 2013. The issuance of the notice dated 19th August, 2013 and the receipt of it by the Additional Chief Secretary, Public Health Department, Mantralaya, Mumbai is not disputed. The contention of the respondent No.5 is that the notice given by him became effective from 19 th September, 2013 and he ceased to be in the employment w.e.f 19th September, 2013.
::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 :::Judgment 6 EP4.14.odt The respondent No.5 relied on Clause (4) of the Government Resolution dated 2nd December, 1997 to substantiate the above contention. Clause (4) of the Government Resolution dated 2nd December, 1997 lays down that the Competent Authority shall immediately take action on receipt of notice of resignation and should intimate the decision taken by the Competent Authority on the proposal of the government employee regarding resignation, within one month.
It lays down if the Competent Authority fails to communicate its decision to the government employee within one month from the date of receipt of the notice/application of resignation, then it will be deemed that the resignation of the government employee is accepted by the Competent Authority. Alternate case of the respondent No.5 is that his resignation became effective from 30th September, 2013 as per his letter of resignation. The respondent No.5 has pleaded and has led evidence to support his claim that he has not reported on duty since 1 st October, 2013 and he is not paid any emoluments by the Government of Maharashtra since 1st October, 2013.
5. Per contra, the claim of the petitioner is that the contention of the respondent No.5 about deemed acceptance of resignation is unacceptable. The petitioner contends that the Deputy Director of ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 7 EP4.14.odt Health Services had sent the communication dated 14 th October, 2013 to the Civil Surgeon, District Hospital, Gadchiroli informing that F.I.R.
was registered against the respondent No.5 with the police station, Gadchiroli on allegations of misappropriation of Rs.8,68,363/- and as the matter was sub judiced and departmental enquiry was proposed against the respondent No.5, the resignation of respondent No.5 was not accepted and it be informed accordingly to the concerned, and the respondent No.5 be directed to report on duty. The copy of this communication was sent to the Director of Health Services, Mumbai and the Additional Chief Secretary, Public Health Department, Mantralaya, Mumbai. The petitioner has relied on the communication issued by the Civil Surgeon, General Hospital, Gadchiroli on 23 rd October, 2013 to the respondent No.5 in which it is stated that the F.I.R.
was registered against the respondent No.5 by the police station, Gadchiroli for misappropriation of state funds and as the matter was sub judiced and departmental enquiry was proposed against the respondent No.5 his request for accepting his resignation was rejected.
By the above mentioned communication, the respondent No.5 was called upon to report on duty.
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6. The petitioner and the respondent No.5 have not disputed the issuance of the above communications and the receipt of the above mentioned communications by the concerned, however, according to the respondent No.5 the communication issued by the Civil Surgeon on 23rd October, 2013 is received by him on 7 th November, 2013 i.e. much after 30th October, 2013 from which date the resignation became effective.
7. The contention of the respondent No.5 about the above communications is that they are not issued by the Competent Authority as required by the Government Resolution dated 2 nd December, 1997.
According to the respondent No.5, the Competent Authority in respect of Medical Officer i.e. respondent No.5 is the Secretary of Public Health Department of Government of Maharashtra to whom the respondent No.5 had sent the notice of resignation and as the Secretary, Public Health Department had not informed the respondent No.5 anything about rejection of the resignation within one month from the date of receipt of the notice, the resignation is deemed to be accepted as per Clause (4) of the Government Resolution dated 2nd December, 1997.
Alternatively, it is submitted that the Secretary, Public Health Department i.e. Competent Authority has not given intimation about his decision on the resignation till 1 st November, 2013 and, therefore, ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 9 EP4.14.odt in any case, the resignation is deemed to be accepted w.e.f. 30 th October, 2013. The contention of the respondent No.5 is that the communications dated 14th October, 2013 and 23rd October, 2013 are not issued by the Competent Authority and, therefore, they are not relevant and cannot be relied upon to urge that the respondent No.5 was informed well within time that his resignation is not accepted. It is the case of the respondent No.5 that in any case, the respondent No.5 was made aware about the above mentioned communications dated 14th October, 2013 and 23rd October, 2013 on 7th November, 2013 i.e. much after resignation became effective on 30th October, 2013.
19/01/2017 :
8. After considering the pleadings, on 19th October, 2015 following issues came to be framed :
"1) Whether the election petition is liable to be dismissed for non-compliance of the requirements of Section 82 and Section 83 of the Representation of the People Act, 1951 ?
2) Whether the petitioner proves that the respondent No.5 continued in Government service till the submission of nomination paper and till he got elected as the Member of Legislative Assembly ?
3) Whether the petitioner proves that the respondent No.5 was not qualified to contest the election as per Article 191 of the Constitution of India and his nomination paper should have been rejected at the time of scrutiny of the nomination paper ?::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 :::
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4) Whether the petitioner proves that the acceptance of nomination paper of the respondent No.5 has materially affected the result of the election ?
5) Whether the respondent No.5 proves that the petition has been filed beyond the period of limitation prescribed by Section 81(1) of the Representation of the People Act, 1951."
9. The petitioner and the respondent No.5 have examined themselves. The parties have not examined any other witness.
10. The issue No.1 on the point whether the election petition is liable to be dismissed for non-compliance of the requirements of Sections 82 and 83 of the Act of 1951 is required to be dealt first.
The Respondent No.5 contended that there is non-compliance of mandatory provisions of Section 83 of the Act of 1951, as :
i) The petitioner did not file complete document (Exh.5/3) along with the petition.
ii) The petitioner did not place on record of the petition at the time of filing and had not supplied copies of the documents (Exh.5/12 to 5/16).::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 :::
Judgment 11 EP4.14.odt Thus, the respondent No.5 sought dismissal of the petition on the ground of non-compliance of Section 83(2) of the Act of 1951.
The respondent No.5 did not raise the objection on the above point at the first instance or immediately. Be that as it may, the respondent No.5 has not been able to point out that because of the above defect, as alleged, he was put to any prejudice or was not in a position to prepare and file the written statement and defend himself.
In the judgment given in the case of T.M.Jacob v C. Poulose & Ors., reported in JT (1999) 3 SC 72 it is laid down that the defect of the type provided in Section 83 of the Act of 1951 can be dealt with under the Doctrine of Curability, on the principles contained in the Code of Civil Procedure. Had the respondent No.5 raised the objection at the first instance, the petitioner would have got the opportunity to cure the alleged defects. The respondent No.5 cannot be permitted to seek dismissal of the petition on the ground that the mandatory provisions of Section 83(2) of the Act of 1951 are not complied with by raising the ground belatedly because of which the petitioner is deprived of the opportunity of curing the defect, if any. Therefore, it has to be held that the election petition is not liable to be dismissed for non-
compliance of Section 83(2) of the Act of 1951.
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11. The issue No.5 on the point whether the petition is filed beyond the period of limitation prescribed by Section 81(1) of the Act of 1951 has to be dealt with before considering the other issues.
The result of the election in question was declared on 19 th October, 2014 and the petition is filed on 2 nd December, 2014 i.e. on the 44th day. The election petition is filed within 45 days i.e. within the limitation prescribed by Section 81(1) of the Act of 1951.
12. The issue Nos. 2 to 4 can be considered simultaneously.
It is admitted that the respondent No.5 was working in the Maharashtra Medical and Health Services, Group-A in the pay scale of Rs.8000-13500 when he came to be absorbed by the oder dated 9 th February, 2009. The respondent No.5 claims that he had sent the communication dated 19th August, 2013 (Exh.5/5) disclosing his intention/decision of resigning from the post he held, w.e.f. 30 th October, 2013. According to the respondent No.5 as per clause (4) of the resolution issued by the General Administration Department, Government of Maharashtra on 2nd December, 1997, as there was no intimation from the competent authority i.e. Secretary, Public Health Department, Government of Maharashtra within one month that the ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 13 EP4.14.odt resignation of the respondent No.5 cannot be accepted, it is deemed to be accepted on completion of one month from the date of submission of the resignation letter. Alternatively it is submitted that in any case the resignation became effective on 30th October, 2013 from which date the respondent No.5 wanted to quit the post.
The submission on behalf of the petitioner is that the Deputy Director of Health Services, Nagpur Circle, Nagpur informed Civil Surgeon, District Hospital, Gadchiroli by the communication dated 14th October, 2013 that on scrutiny of the proposal of resignation it was found that while working as Medical Officer, Class-II with Zilla Parishad, Gadchiroli the respondent No.5 in his capacity as President of Shakuntala Memorial Society, had misappropriated the amount of Rs.8,68,363/- and the action for recovery of the amount was going on and disciplinary proceedings were proposed and first information report was registered for misuse of the above amount and the respondent No.5 had applied for anticipatory bail and enquiry on the complaint against him was going on and therefore, his resignation was not accepted and he be informed accordingly and he be directed to report on duty and the compliance report be submitted.
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13. The submission on behalf of the petitioner is that pursuant to the above communication dated 14th October, 2013, the Civil Surgeon, District Hospital, Gadchiroli informed the respondent No.5 by communication dated 23rd October, 2013 that as the first information report was registered against him and departmental enquiry was proposed against him, his resignation was rejected and that he should report on duty and submit the compliance report. According to the petitioner, in view of Clause 9 and Clause 10 of the Government Resolution dated 2nd December, 1997, the respondent No.5 cannot claim benefit of Clause 4 of the Government Resolution dated 2 nd December, 1997 and contend that the resignation became effective as the competent authority had not given intimation to the respondent No.5 within 30 days about the action taken on the resignation letter.
14. On 1st July, 2016 the petitioner has given notice under Order 12 read with Section 151 of the Code of Civil Procedure to the respondent No.5 to admit the following documents :
i) Certified copy of Original Application No.463/2014 alleged to have been filed by the respondent No.5 before the Maharashtra Administrative Tribunal, Nagpur Bench.::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 :::
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ii) Certified copy of the judgment given by the Maharashtra Administrative Tribunal, Nagpur Bench in Original Application No. 463 of 2014 on 28th October, 2014.
iii) Copies of some orders (description of which is not given in the notice to admit documents) passed by Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur.
This notice to admit documents is given after recording of evidence is completed and the matter was fixed for arguments.
The learned advocate for the respondent No.5 opposed the notice to admit document given by the petitioner and submitted that the certified copy of the Original Application No. 463 of 2014 and the judgment and order passed by the Administrative Tribunal cannot be considered as the documents are placed at the time of hearing.
Though the learned advocate for the respondent No.5 opposed the production of certified copy of Original Application No. 463 of 2014 on the ground that it is filed at belated stage, filing of Original Application No.463 of 2014 before the Maharashtra Administrative Tribunal is admitted by the respondent No.5 and the ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 16 EP4.14.odt respondent No.5 has himself placed on record the copy of the order passed by this Court in Writ Petition No.392 of 2015 which was filed by the respondent No.5 to challenge the order passed by the Maharashtra Administrative Tribunal on Original Application No. 463 of 2014.
Considering the admitted fact that the respondent No.5 had filed Original Application No. 463 of 2014, in my view, the certified copy of the Original Application No. 463 of 2014 filed on record, though at belated stage, can be taken on record.
15. The case of the respondent No.5 is that the communication issued by the Civil Surgeon, District Health Officer, Gadchiroli on 23/10/2013 was received by him on 7 th November, 2013 i.e. after the resignation given by him became effective and therefore, clause (4) of the Government Resolution dated 2nd December, 1997 would operate. It is the contention of the respondent No.5 that in any case the communication dated 14th October, 2013 is not issued by the competent authority and the consequential communication issued by the Civil Surgeon, District Hospital, Gadchiroli on 23 rd October, 2013 is inconsequential. The respondent No.5 has led the evidence to prove the fact that the communication issued by the Civil Surgeon, District Hospital, Gadchiroli on 23rd October, 2013 is received by him on 7th November, 2013.
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16. The submission of resignation letter dated 19 th August, 2013 by the respondent No.5, issuance of communication dated 14 th October, 2013 by the Deputy Director of Health Services, Nagpur Circle, Nagpur and issuance of communication dated 23rd October, 2013 by the Civil Surgeon, District Hospital, Gadchiroli are not disputed.
Considering the evidence led by the respondent No.5, it has to be held that the respondent No.5 has established that the communication issued by the Civil Surgeon, District Hospital, Gadchiroli on 23 rd October, 2013 is received by the respondent No.5 on 7th November, 2013.
17. In the above background, it has to be considered whether the resignation of the respondent No.5 became effective either on completion of one month from its submission or from 30 th October, 2013 or the resignation is not accepted and the respondent No.5 continued in service. For deciding this point, various clauses of the Government Resolution dated 2nd December, 1997 and the law prevailing on the point is required to be considered.
18. The advocate for the petitioner, relying on the judgment given in the case of Nayna Vs. Vimal, reported in 2008 (3) Mh.L.J. 156 ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 18 EP4.14.odt has submitted that quitting of the post by a government employee is bilateral act and the process of resignation cannot be treated as complete unless the resignation is accepted by the competent authority.
It is submitted that in the present case, there is nothing on the record to show that the resignation of the respondent No.5 is accepted by the competent authority and therefore, it has to be treated that the respondent No.5 continued in the service even after 30 th October, 2013.
Referring to paragraphs 23 and 27 of this judgment, it is argued by the advocate for the petitioner that this Court has considered the Government Resolution dated 2nd December, 1997 and has recorded that the Government Resolution specifically provides the procedure for acceptance of the resignation and has concluded that the resignation cannot be deemed to have been accepted and will not become effective unless it is accepted by the competent authority.
19. Considering the nature of controversy, the principles of Service Jurisprudence will have to be resorted to. The service conditions of the government employees in the State of Maharashtra including the persons working in the Maharashtra Medical and Health Services are governed by the Maharashtra Civil Services Rules. The learned advocate for the respondent No.5 has not been able to point out any provision under the Maharashtra Civil Services Rules, which ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 19 EP4.14.odt provide for giving effect to the resignation submitted by the Government employee by deeming fiction. However, the learned advocate for the respondent No.5 relies on clause 4 of the Government Resolution dated 2nd December, 1997 which provides that the resignation would be effective if the competent authority fails to inform the concerned government employee within one month from the date of receipt of the resignation letter that it is not accepted. The Government Resolution dated 2nd December, 1997 is a subordinate legislation and its provisions can operate in the field which is not occupied by the Maharashtra Civil Services Rules. The respondent No.5 can legitimately rely on Clause 4 of the Government Resolution dated 2nd December, 1997, provided other conditions of employment as per the Maharashtra Civil Services Rules are complied with.
20. In the judgment given in the case of Union of India Vs. Gopal Chandra Misra, reported in (1978) 2 SCC 301 it is laid that "Resignation" according to lexical meaning and juristic sense shows that a complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates its tenure.
In the light of the above proposition, it is required to be ascertained whether the respondent No.5 has established that his link ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 20 EP4.14.odt with the office he held, stood severed much before 27 th September, 2014 on which date he submitted the nomination paper.
21. The Maharashtra Civil Services (General Conditions of Services) Rules, 1981 are made by the Governor of Maharashtra exercising powers conferred by the proviso to Article 309 of the Constitution of India. As recorded earlier, admittedly, these rules govern the conditions of service of the respondent No.5.
Rule 29 of these Rules lays down that the relieving government servant is responsible for informing the government servant to be relieved of the date when he will be in a position to receive charge and it is the duty of the government servant to be relieved to be in readiness to deliver the charge on that date. Rule 28 of the above rules lays down that subject to any exceptions specifically made in these rules, a government servant commences or ceases to be entitled to the pay and allowances of a post if from the date on which he assumes or relinquishes charge of the duties of that post, if he assumes or relinquishes the charge of those duties on the forenoon of that day, otherwise from the following day. Thus, the rules provide for handing over and taking over of the charge which is necessary concomitant in the Service Jurisprudence in the matter of ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 21 EP4.14.odt commencement of the employment or cessation of the employment as the date of taking over or handing over charge on commencement of employment or cessation of the employment is relevant for deciding the entitlement of the Government employee for the pay and allowances and other monetary benefits.
22. In the judgment given in the case of Power Finance Corporation Vs. Pramod Kumar Bhatia, reported in (1997) 4 SCC 280 it is laid down that unless the employee is relieved of the duty after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end.
23. In the present case, the claim of the respondent No.5 is that his resignation became effective by deeming fiction as per clause 4 of the Government Resolution dated 2nd December, 1997 after one month of its receipt by the competent authority and in any case w.e.f.
30th October, 2013.
The respondent No.5, in answer to the Court question, has stated that he has received salary till 30 th October, 2013 and he is not paid salary nor it is deposited in his account since 1st November, 2013.
::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 :::Judgment 22 EP4.14.odt The petitioner has not brought any evidence on record to show that the respondent No.5 reported on duty after 1st November, 2013. The petitioner has not brought any evidence on record to show that the government or the competent authority issued any notice to the respondent No.5 calling upon him to report on duty or warning him of any disciplinary action for his continuous absence from duty. These facts show that the respondent No.5 was not on duty from 1st November, 2013. Is it sufficient to conclude that the relationship between the respondent No.5 and the State Government, of employee-employer stood terminated w.e.f. 1st November, 2013 ?
24. According to the petitioner, the relationship of the employee and employer did not come to an end from 1st November, 2013 and for this submission the following factors are relied upon :
i) The communication issued by the Deputy Director of Health Services, Nagpur Circle, Nagpur dated 14th October, 2013 stating that because of registration of the first information report and as the enquiry was proposed against the respondent No.5, his resignation was not accepted.::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 :::
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ii) The communication issued by the Civil Surgeon, District Hospital, Gadchiroli on 23rd October, 2013 informing the respondent No.5 that his resignation was not accepted.
iii) The averments made in Original Application No. 463 of 2014 which was filed by the respondent No.5 before the Maharashtra Administrative Tribunal and
(iv) The judgment and orders passed by the Maharashtra Administrative Tribunal.
25. The respondent No.5 contends that he ceased to be in service w.e.f. 19th September, 2013 and in any case w.e.f. 1st November, 2013 and for substantiating this stand he relies on the following :
i) He has not been paid any salary or emoluments from 1st November, 2013;
ii) There is no enquiry against him because of which the resignation letter given by him could have been rejected.::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 :::
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iii) The resignation became effective from 19th September, 2013 on completion of one month from the date of its receipt by the competent authority or in any case from 1st November, 2013 as the competent authority failed to inform him that his resignation letter was rejected.
iv) The resolution issued by the Public Health Department, Government of Maharashtra on 10th August, 2015 to the effect that the resignation letter given by the respondent No.5 on 19th August, 2013 is accepted w.e.f. 30th October, 2013, as it fulfills the conditions laid down by Government Resolution dated 2nd December, 1997.
26. It is to be considered whether disqualification because of holding the office of profit is attracted on factual cessation of relationship of employee and employer or juristic cessation of relationship of employee and employer. In my view, obviously, the disqualification will be attracted on juristic cessation of employee-
employer relationship.
27. The submission made on behalf of the respondent No.5, relying on clause 4 of the Government Resolution dated 2nd December, ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 25 EP4.14.odt 1997 that the resignation letter given by him is deemed to have been accepted on lapsing of one month after receipt of it by the competent authority cannot be accepted in view of the admitted facts on record that he is paid salary till 30th October, 2013.
28. The alternate submission made on behalf of the respondent No.5 is required to be examined. In the present case, even as per the evidence brought on record by the respondent No.5, the employee and employer relationship existed till 30th October, 2013. To substantiate the claim that the relationship ceased w.e.f. 1st November, 2013 the respondent No.5 relies on the fact that he has not reported on duty since 1st November, 2013 and he has not been paid salary or any emoluments from 1st November, 2013 and that there is no notice calling upon the respondent No.5 to report on duty after 1st November, 2013 and there is no disciplinary enquiry till date.
Can it be said that because the respondent No.5 has not reported on duty from 1st November, 2013 or has not been paid salary or any emoluments from 1st November, 2013 or is not given any notice calling upon the respondent No.5 to report on duty and as enquiry is not conducted in the matter after 1st November, 2013, the relationship of employee-employer came to and end ?
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29. The foundation of the claim of the respondent No.5 that the employee-employer relationship came to an end is based on clause 4 of the Government Resolution dated 2nd December, 1997. In my view, clause 4 of the Government Resolution dated 2nd December, 1997 is not the substantive provision dealing with the substantive rights of the Government employee. It only creates the fiction for ascertaining the date from which the relationship of employee and employer ceases on submission of resignation by the employee and failure on the part of the competent authority to take action in the matter and/ or to inform the employee that the resignation is not accepted. If clause 4 of the Government Resolution dated 2nd December, 1997 is read to mean that it creates a substantive right in favour of the employee to walk out after one month of receipt of resignation letter by the competent authority and failure on the part of the competent authority to take any action on the resignation letter or to inform the employee that the resignation letter is rejected, even if there is ample material against the employee showing that the resignation cannot be accepted and departmental enquiry will have to be conducted in the matter, then it will not only be contrary to the established principles of service jurisprudence providing for the ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 27 EP4.14.odt mechanism for terminating the employee-employer relationship, but will be hazardous.
30. In the present case, admittedly FIR was registered against the respondent No.5 and Regular Criminal Case No.73 of 2013 was filed by the State of Maharashtra before the Chief Judicial Magistrate, Gadchiroli on 26th September, 2013 which was pending against the respondent No.5 on 30th October, 2013. Admittedly, the Deputy Director of Health Services had sent the communication dated 14th October, 2013 to the Civil Surgeon, District Hospital, Gadchiroli informing that the resignation of the respondent No.5 was not accepted as first information report for misappropriation of amount of Rs.8,68,363/- was filed against him and departmental enquiry was proposed. Copy of this communication was sent to the Director of Health Services and the Additional Chief Secretary, Public Health Department, Mantralaya, Mumbai. On the basis of this communication dated 14th October, 2013, the Civil Surgeon, District Hospital, Gadchiroli issued communication dated 23rd October, 2013 informing the respondent No.5 that his resignation was not accepted. Copy of this communication was sent to the Deputy Director of Health Services, Nagpur Circle, Nagpur and the Medical Superintendent, Rural Hospital, ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 28 EP4.14.odt Chamorshi, District : Gadchiroli. According to respondent No.5, this communication dated 23rd October, 2013 is received by him on 7th November, 2013. After receiving the communication dated 23rd October, 2013, the respondent No.5 filed Original Application No. 463 of 2014 before the Maharashtra Administrative Tribunal. In Original Application No. 463 of 2014, the respondent No.5 prayed that the communication issued by the Deputy Director of Health Services, Nagpur Circle, Nagpur on 14th October, 2013 be quashed and it be declared that the resignation submitted by him on 19th August, 2013 is deemed to have been accepted in view of Clause 4 of the Government Resolution dated 2nd December, 1997. The respondent No.5 further prayed in the Original Application that the communication issued by the Medical Superintendent, Rural Hospital, Chamorshi, District :
Gadchiroli on 21st March, 2013 directing recovery from the respondent No.5 be quashed. Thus, the facts show that the respondent No.5 throughout relied on clause 4 of the Government Resolution dated 2nd December, 1997 to contend that his resignation is deemed to have been accepted.
31. In my view, it would be hazardous to read clause 4 of the Government Resolution dated 2nd December, 1997 to mean that it confers an absolute right on the Government employee to walk out if ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:16 ::: Judgment 29 EP4.14.odt there is some default on the part of the competent authority in informing him that his resignation is not accepted for some reason.
Clause 4 of the Government Resolution dated 2nd December, 1997 cannot be interpreted in such a manner, overlooking the other aspects relevant in Service Jurisprudence which are required to be considered before the employee-employer relationship is treated to have been terminated by the act of the employee of submitting resignation. As referred earlier, Rule 28 to 31 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 provide for the mechanism for handing over of charge by the outgoing government employee. If clause 4 of the Government Resolution dated 2nd December, 1997 is interpreted to mean that it confers absolute right on the employee to walk out if the competent authority fails to intimate within one month that the resignation is not accepted then the Government employee would not be liable to handover the charge and to account for the property of the Government which may be in his custody/ possession and the outgoing employee will not be liable to make good the loss if caused by him to the Government.
32. Clause 10 of the Government Resolution dated 9th February, 2009 by which the respondent No.5 was absorbed in service imposes the condition that the appointee i.e. respondent No.5 shall ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:17 ::: Judgment 30 EP4.14.odt serve with the Government at least for 10 years failing which he will have to pay fine. The respondent No.5 has not brought any evidence on record to show that he had served for more than 10 years with the State Government till 1st November, 2013 or that he paid the fine for quitting the Government service before 10 years.
Clause 11 of the Government Resolution dated 9th February, 2009 states that the Rules applicable to other government employees will be applicable to the respondent No.5.
Overlooking all these aspects and the fact that the respondent No.5 has not brought any evidence on record that he was relieved and the provisions of Rule 28 to Rule 31 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 were complied with, the contention of the respondent No.5 that he ceased to be the Government employee w.e.f. 1st November, 2013 cannot be accepted. It is well established that the termination of the employee-
employer relationship by resignation of the employee is not by unilateral act of the employee and unless there is acceptance of it by the employer or other service conditions and statutory provisions are complied with, by deeming fiction it cannot be held that the resignation ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:17 ::: Judgment 31 EP4.14.odt given by the Government employee becomes effective because of failure on the part of the competent authority to take some action.
33. Therefore, it has to be held that the respondent No.5 continued in the Government service after 19th September, 2013 and 1st November, 2013. The respondent No.5 has not brought any other evidence on record to show that he ceased to be in service before 27th September, 2014 that is the day on which he submitted the nomination paper. Consequently it has to be held that the respondent No.5 was in the Government service on the date on which he submitted his nomination paper. The Government Resolution dated 10th August, 2015 will not be relevant for decision on this issue as the situation prevailing on 27th September, 2014 will have to be considered.
34. Being in Government service, the respondent No.5 held office of profit as contemplated by Article 191(1)(a) of the Constitution of India. Though the respondent No.5 has brought evidence on record to show that he has not received any monetary benefit from the State Government from 1st November, 2013, it cannot be said that the respondent No.5 was not disqualified to be chosen as a Member of the Legislative Assembly.
::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:17 :::Judgment 32 EP4.14.odt In the judgment given in the case of Jaya Bachchan Vs. Union of India, reported in (2006) 5 SCC 266 in paragraph 6 it is laid down as follows :
"6. Clause (1)(a) of Article 102 provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament 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 term "holds an office of profit" though not defined, has been the subject-matter of interpretation, in several decisions of this Court. An office of profit is an office which is capable of yielding a profit or pecuniary gain.
Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is "holding an office of profit." The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word "honorarium" cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the "pecuniary gain" is "receivable" in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of ::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:17 ::: Judgment 33 EP4.14.odt Article 102(1)(a). This position of law stands settled for over half a century commencing from the decisions of Ravanna Subanna v. G.S. Kaggeerappa, Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa, Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and Shibu Soren v. Dayanand Sahay."
In the judgment given in the case of U.C. Raman Vs. P.T.A. Rahim, reported in (2014) 8 SCC 934, in paragraph 11.5 the Hon'ble Supreme Court has laid down as follows :
"11.5. The first three judgments deal with various tests which should be applied to find out whether the office in question is an office under the Government or not. Since in the present case this issue has been decided by the High Court in favour of the appellant and there is no serious challenge to that finding, those judgments are not of much relevance. So far as the case of Jaya Bachchan is concerned, this Court was called upon to answer what the term "office of profit" could mean although the context was Article 102 of the Constitution of India which is concerned with disqualification of member of either House of Parliament. Nonetheless, the interpretation given by this Court to the term "office of profit" is equally applicable in interpreting the same phraseology in the context of Article 191 of the Constitution. .."
Thus, only because there is nothing on record to show that the respondent No.5 actually received pecuniary gain from 1st November, 2013 onwards in the capacity as the Medical Officer in the employment of the State Government, it cannot be said that the respondent No.5 was not holding the office of profit as contemplated by Article 191 of the Constitution of India.
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35. In view of the above conclusions, it has to be held that the nomination paper of the respondent No.5 could not have been accepted by the Returning Officer, as being Government employee the respondent No.5 was holding office of profit under the State Government and incurred disqualification as per Article 191 (1)(a) of the Constitution of India and under Section 100(1)(a) of the Act of 1951.
36. In view of the findings recorded as above, following order is passed :
a. It is declared that the respondent No.5 was disqualified to be chosen as the Member of the Legislative Assembly and his nomination could not have been accepted by the Returning Officer from 68-Gadchiroli (ST) Legislative Assembly Constituency of the State of Maharashtra for the elections, polling for which was held on 15th October, 2014.
b. The result of the election of 68-Gadchiroli (ST) Legislative Assembly Constituency of the State of Maharashtra declared on 19/10/2014 is quashed.::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:17 :::
Judgment 35 EP4.14.odt
c. The election of the respondent No.5-Dr. Deorao Madguji
Holi as Member of the Legislative Assembly from 68- Gadchiroli (ST) Legislative Assembly Constituency of the State of Maharashtra is set aside.
d. The seat held by the respondent No.5 i.e. of Member of Legislative Assembly from 68-Gadchiroli (ST) Legislative Assembly Constituency of the State of Maharashtra is declared vacant.
e. The concerned Authorities shall take appropriate necessary consequential steps in the matter.
The petition is allowed in the above terms. However, in the circumstances, the parties shall bear their own costs.
The amount deposited by the petitioner as security for the costs of the petition be refunded to the petitioner.
A copy of this judgment be sent to the State Election Commission and the Chairman of the Maharashtra State Legislature, as required by Section 103 of the Representation of the People Act, 1951.::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:17 :::
Judgment 36 EP4.14.odt At this stage, Shri G.M. Khanzode, advocate for the respondent No.5 prays that this judgment be kept in abeyance for two months to enable the respondent No.5 to take appropriate steps in the matter.
As it is held that the respondent No.5 was disqualified for being chosen as the Member of the Legislative Assembly, the prayer made on behalf of the respondent No.5 is rejected.
JUDGE RRaut..::: Uploaded on - 23/01/2017 ::: Downloaded on - 24/01/2017 00:48:17 :::