Harnek Singh vs Hoshiar Singh and Others

I. S. Tiwana, J

Hoshiar Singh son of Niranjan Singh was elected as Sarpanch of Gram Panchayat, Village Dolon Khurd on September 28, 1983. Out of the four contestants, two withdrew within the prescribed period, leaving the other two i.e. the present parties in the filed As a result of the poll that took place Hoshiar Singh secured 325 votes as against Harnek Singh who secured 135 votes and was thus declared elected Later this election was impugned by Harnek Singh through an election petition on the ground that at the time of filing the nomination papers and election Hoshiar Singh was a whole time salaried servant of the Municipal Corporation, Ludhiana, and was thus not qualified to be so elected in view of the provisions of Section 6(5), Clause (g) of the Punjab Gram Panchayat Act, 1952, (for short, the Act). As a result of the trial that following, the prescribed Authority i.e. the Executive Magistrate, Ludhiana, vide his order dated January 4, 1985, concluded the matter thus:

... ... ... ... ... ... ...

I am of the firm view that Shri Hoshiar Singh Respondent, being a Government employee is incompetent to contest the election with the result he had no locus standi to raise the objection regarding the election of any candidate. As there were two competent candidates in the field to contest the Gram Panchayat election, for the office of Sarpanch, the Respondent being incompetent, the question of being declaring him as elected does not arise. The only other candidate Harnek Singh Petitioner is there who can be declared as elected Sarpanch. I, therefore, declare Shri Harnek Singh Petitioner as elected Sarpanch in place of Hoshiar Singh Respondent. I hereby accept the petition of Harnek Singh and the election of Hoshiar Singh Respondent is hereby set aside. The parties are left to bear their own costs.

Hoshiar Singh preferred an appeal against this order to the District Judge, Ludhiana, contending therein that neither he was disqualified to be elected as a Sarpanch nor the Respondent i.e. Harnek Singh could be declared as elected as a result of his disqualification even if that was to be upheld. The learned District Judge vide his order dated February 4, 1985 while affirming the setting aside of Hoshiar Singh''s election as Sarpanch also set aside the declaration qua Harnek Singh that he had been duly elected. He ordered a fresh election. This order of the District Judge is now impugned by both the parties i.e. Hoshiar Singh, who had been elected as Sarpanch and Harnek Singh the election-Petitioner. In view of the above stated facts, I find it convenient to dispose of both these petition Nos. 1252 and 1597 of 1985 through this common order.

Section 6 (5), Clause (g) of the Act which disqualifies a person from being a candidate or elected as a Sarpanch of the Gram Panchayat reads as under:

(5) No person who ... ... ... ...

(a) ... ... ... ...

(b) ... ... ... ...

(c) ... ... ... ...

(d) ... ... ... ..

(e)... ... ... ...

(f) ... ... ... ...

(g) is a whole time salaried servant of any local authority or State or the Union of India;

.. ... ... ...

shall be entitled to stand for election as, or continue to be a Sarpanch or Panch.

It is thus apparent that what was required to be established conclusively in the instant case was that Hoshiar Singh was a whole time salaried servant of the Municipal Corporation, Ludhiana. It is not in dispute that this Corporation is a local authority for purposes of the above noted provision. It was only the nature of appointment which Hoshiar Singh had that was in dispute. It deserve to be high lighted here that but for examining Siri Ram Khanna, Welfare Inspector, Municipal Corporation Ludhiana, as P.W. 1 the election Petitioner chose to produce no other evidence except his own statement to establish the above noted fact. Neither Mr. Khanna nor any other person produced on record the appointment order of Hoshiar Singh as an employee of the Corporation. None of the impugned orders of the Prescribed Authority or of the District Judge makes any reference to any such order. In a similar situation, I have ruled in C.W.P. 4283 of 1985 (Kuldip Singh v. Additional District Judge and others) decided on February 10, 1986, as follows:

Then what to my mind is essential to determine the status of a person as to whether he is a whole time salaried srevant of the Government or is a daily wage worker, is his contract of employment. It is only on the basis of the appointment order of an individual that a firm conclusion can be recorded as to whether he is whole time salaried servant of his employer or is only a wage worker. None of the parties to this litigation and more particularly the election Petitioner on whom the onus to prove the issue noticed above lay, has bothered to bring on record the contract of employment or the order of appointment of the Petitioner as an employee of the Society. In the light of that it cannot possibly be said as to what was the status or nature of appointment of the Petitioner. It is elementary that for dislodging a person from his elected office his disqualification or the ground for his removal from that office has to be conclusively proved beyond doubt. There being no such material on the records of this case 1 find it difficult to disqalify or remove the Petitioner from the Sarpanchship to which he had been duly elected.

The factual, position in the instant case does not appear to be different and, as has already been pointed out, nobody has bothered to produce or prove on record the appointment order of Hoshiar Singh. Thus in the absence of that primary evidence, no amount of secondary evidence with regard to the nature of his employment with the Corporation can be of any assistance to either of the parties. In the light of this conclusion of mine, C.W.P. No. 1597 of 1985 filed by Hoshiar Singh has essentially to be allowed and the other one (No. 1252 of 1985) filed by Harnek Singh has to be dimissed. The net result thus is that the election of Hoshiar Singh as Sarpanch of Gram Panchayat Dolon. Khurd is upheld and the election petition filed by Harnek Singh challenging the same is dismissed. I, however, pass no order as to costs.