Dhiraj Kumar Arya vs State Of Chhattisgarh,

Ramesh Sinha , CJ

Heard Mr. Awadh Tripathi, learned counsel for the appellant. Also heard Mr. Vinay Pandey, learned Deputy Advocate General, appearing for the Respondents/State and Mr. Rakesh Jha, learned counsel for respondent No.2.

The appellant has filed this writ appeal against the order dated 28.11.2023 passed by the learned Single Judge in Writ Petition (S) No. 3526/2023 (Dheeraj Kumar Arya Vs. State of Chhattisgarh and Others), by which the learned Single Judge has dismissed the writ petition filed by the writ petitioner / appellant herein.

Brief facts necessary for disposal of this writ appeal are that the appellant who is working as Assistant Grade-III and posted at Office of Block Education Officer, Korba vide order dated 17.02.2023 has challenged the attachment orders dated 02.05.2023 and 04.05.2023 by which the appellant has been attached in the Office of Collector-cum-District Election Officer, Korba and has also prayed that suspension order dated 11.05.2023 issued by the Collector-cum-District Election Officer be kindly set aside on the count that suspension order has been issued without jurisdiction as respondent No.3 is neither appointing authority nor the employer of the appellant. It has also been contended that the show cause notice dated 11.05.2023 was issued to him and without waiting for reply, the suspension order dated 11.05.2023 has been passed directing the appellant posting him at Tahsil Office Pasan, which is not under the control of the Education Department. It has also been contended that the appellant will not be able to get salary as last pay certificate cannot be transferred to Revenue Department as the appellant is an employee of the Education Department. To substantiate his submission, the appellant has referred to various circulars dated 31.07.2006, 11.08.2015, 19.06.1997, 22.11.1984, 21.01.1986. The appellant has filed writ petition being WPS No.3526/2023 for quashing / setting-aside the the suspension order dated 11.05.2023 passed by respondent No.3.

The respondents have filed their return in WPS No.3050 of 2023, in which they have stated that the writ petitioner’s services were taken by election duty for upcoming Assembly Election 2023. The Commission has power to deploy the State employees according to their convenience for conducting the election. The State has relied upon Sections 13(A), 13(AA), 13(B), 13(C) and 13(CC) of Representation of Peoples Act, 1950 (hereinafter called as “Act of 1950”).

Learned Single Judge vide order dated 25.08.2023 has directed the State to file affidavit of District Election Officer indicating what steps were taken by them to communicate the suspension order and under what circumstances they have forwarded the suspension order to the District Education Officer for onward communication to the writ petitioner.

In compliance of the order of the learned Single Judge, the District Education Officer has filed an affidavit on 28.08.2023 narrating the factual matrix mainly contending that the Block Education Officer vide its memo dated 08.05.2023 has informed the Deputy Election Officer that in pursuance of order dated 04.05.2023, the writ petitioner has already been relieved for joining District Election Officer, Korba. It has also been mentioned that vide letter dated 04.05.2023, he has also prayed for medical leave. The Deputy Election Officer vide memo dated 09.05.2023 has sent the memo to the Block Education Officer raising doubt over the medical certificate and also raising authority of the Block Education Officer even after relieving the writ petitioner for joining how can his application can be forwarded to the Election Officer. Thereafter the District Election Officer has also issued show-cause notice to the writ petitioner on 09.05.2023. The Block Education Officer has submitted copy of the reply given by the writ petitioner along with the documents. Thereafter the Election Officer has issued order dated 11.05.2023 suspending the writ petitioner. The suspension order was sent through the dispatch register and also forwarded to the Block Education Officer for communication to the writ petitioner and also obtaining acknowledgment. The writ petitioner has submitted reply to the show cause notice on 11.05.2023, 16.05.2023, 17.05.2023 and seek permission from the Election Officer to join duty. Thereafter in pursuance of stay order passed by this Court on 29.05.2023, the writ petitioner reported for joining duty to the office of Block Education Officer which was forwarded to the District Education Officer vide memo dated 08.06.2023 and thereafter the writ petitioner has submitted a representation on 23.06.2023 and on 21.07.2023, the Election Officer has allowed him to join duty. In pursuance of the permission, the writ petitioner has reported for duty on 14.08.2023. Again the Block Education Officer has sent memo dated 14.08.2023 to relieve the petitioner as because of shortage of manpower, the work of the department is adversely affected.

By the impugned order, learned Single Judge has dismissed the writ petition filed by the writ petitioner / appellant herein holding that suspension order was dispatched from the office of District Election Officer, Korba, therefore, it has to be given effect and once the suspension order has been issued, it cannot be stayed as it is made effective. Hence, this writ appeal.

Learned counsel for the appellant submits that the learned Single Judge has failed to see that the respondent vide order dated 11.05.2023 granted 2 days’ time to the appellant to submit medical certificate granted by the Medical Board, failing which appropriate action may be taken against him, but on the same day by the impugned order dated 11.05.2023 he was placed under suspension and his headquarter has been changed from Korba to Tahsil Office, Pasan, District Korba (C.G.) which is 150 kms. away from the present place where he is posted. He further submits that the learned Single Judge also failed to consider that on the date of suspension, the appellant has not joined the office of District Election Officer, Korba and accordingly, the District Election Officer has no power to place him under suspension, though on that very date the respondent has granted 2 days’ time for submitting medical certificate granted by the Medical Board. From the impugned order, it does not reflect that the respondent has contemplated any kind of disciplinary proceeding. So the impugned order is not at all sustainable because till date neither the charge-sheet has been filed nor any departmental inquiry has been initiated against the appellant and after the prescribed period of 45 days, the suspension order has automatically been revoked and before passing of the impugned order, the appellant's services have been returned back to the office of Block Education Officer.

He also submits that the learned learned Single Judge has totally overlooked the dispatch register of District Election Officer as well as the dispatch register of District Education Officer in which there is some manipulation and the same has been done intentionally by the respondent for the very purpose to harass and humiliate the appellant and passed the impugned order. The learned Single Judge has wrongly held that the services of the appellant have been attached with the District Election Office for the purpose of preparing the electoral role, but the same has been done by the Booth Level Officer and that is not the duty of the appellant. In fact, after the joining at District Election Office, the appellant was not provided any work relating to election duty and he has been provided charge for providing information under Right to Information Act. On the date of issuance of the suspension order, election of the State has not been notified. So, the District Election Officer has no power to suspend the services of the employee who is an employee of Block Education Office. As such, the order of the learned Single Judge is contrary to the settled principal of law and the same is not at all sustainable. The finding recorded by the learned Single Judge is not based on the document because once the time has been provided to the appellant on 11.05.2023 for filing of medical report, then without the end of the aforesaid 2 days’ time, on the same date i.e. 11.05.2023 the order under suspension is not at all justified and from the dispatch register, it has been found that the order of suspension has not been served to the appellant and the same has been received by the Block Education Officer for serving the appellant on 30.05.2023 and neither any inquiry has been contemplated nor charge-sheet has been supplied to the appellant till date, then the order of suspension itself is contrary to the settled principle of law and the same is not at all justifiable. Accordingly, the impugned order passed by the learned Single Judge does not justify the act of the respondents. He contended that the services of the appellant have been attached for preparation of electoral role though he has never been engaged for preparation of the electoral role and it is the duty of Booth Level Officer. As such, the writ appeal deserves to be allowed and the impugned order passed by the learned Single Judge deserves to be set aside. He relied upon the judgments passed by this Court in Vijay Jamnik v. State of Chhattisgarh and others (WPS No.1781/2015), decided on 05.11.2015, Kalam Singh Nareti v. State of Chhattisgarh and others (WPS No.8061/2018), decided on 06.12.02018 and Panchu Ram Thakur v. State of Chhattisgarh and others (WPS No.2062/2016), decided on 21.06.2021.

On the other hand, learned Deputy Advocate General appearing for the respondents-State and learned counsel appearing for respondent No.2 oppose the submissions made by the learned counsel for the appellant and submit that the learned Single Judge after considering all the aspects of the matter has rightly dismissed the writ petition filed by the writ petitioner / appellant herein, in which no interference is called for by this Court.

We have perused the impugned order and other documents appended with writ appeal.

It is well settled factual position that the election duty is essential duties for democratic setup of the country and to execute free and fair election, a large number of manpower is required. The Election Commission has no sufficient manpower, therefore, it is necessary for the Election Commission to have employees of various Government Departments to execute the election duty. Thus, the employees are being attached temporarily for completion of election proceedings. As such, it cannot be said that respondents No. 3 & 4 have no power to attach employee. This attachment order was for specific period and for specific work which is need of hour which cannot be stopped for any reason. The record of the case would demonstrate that a large number of employees were attached in the office of Election Commission, Korba, thus, it cannot be said that only the writ petitioner was single out for election duty or he was only discriminated. All the employees who are required for conduction of election were attached uniformly.

From perusal of the impugned order, it transpires that the learned Single Judge has held that the power to suspend any officers/officials/police/personnel for insubordination or dereliction of duty, lies with the Election Commission of India. Since the writ petitioner has not reported for duty immediately on 04.05.2023, therefore, he was rightly suspended by the District Election Officer, Korba, as such, there is no illegality or irregularity in the order dated 11.05.2023, which warrants interference by this Court. Leaned Single Judge has further held that suspension order was dispatched from the office of the District Election Officer, Korba, therefore, it has to be given effect and once the suspension order has been issued, it cannot be stayed as it is made effective. The appellant was suspended for dereliction of the duty to join with District Election Officer, Korba, therefore, he has been rightly suspended by respondents No. 3 & 4.

The learned Single Judge has dismissed the writ petitions filed by the writ petitioner and also vacated the interim order passed in WPS No. 3526 of 2023. Learned Single Judge has further held that once the suspension order is issued, it is not required whether the same has been communicated or dispatched and also rejected the application filed filed by the writ petitioner under Section 340 read with Section 195 of the CrPC.

As such, the judgments relied upon by the learned counsel for the appellant are not helpful to the appellant and are distinguishable to the facts of the present case.

Considering the submissions advanced by the learned counsel for the parties, perusing the impugned order, the material available on record and also considering the findings recorded by the learned Single Judge while dismissing the writ petition filed by the writ petitioner / appellant herein, we are of the considered opinion that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error in the impugned order warranting interference by this Court.

Accordingly, the writ appeal being devoid of merit is liable to be and is hereby dismissed. No cost(s).