UPENDRALAL Vs. NARAINEE DEVI JHA
LAWS(MPH)-1967-9-4
HIGH COURT OF MADHYA PRADESH
Decided on September 14,1967

UPENDRALAL Appellant
VERSUS
NARAINEE DEVI JHA Respondents

JUDGEMENT

- (1.) THE petitioner Upendralal Choudhary challenges by this election petition the election of the respondent Smt. Narainee Devi Jha who was elected from Mandla Constituency No. 162 of the Vidhan Sabha of Madhya Pradesh. In the election many candidates had taken part but the petitioner has impleaded in his petition the respondent alone as the relief which he has sought in the petition is that the election of the respondent is void.
(2.) THE grounds on which the petition is based may be stated thus. The petitioner urged that he was in temporary Government service of the State of Madhya pradesh; that he had sent notice of his intention to terminate his service as Naib-Tahsildar on 29-11-1966; that he had sent one copy of the notice to the Collector, narsinghpur, and the other to the Secretary, Revenue Department and the acknowledgment receipts of the said two notices respectively are Ex. P-3 and Ex. P-4 on record; that the notice on the State Government had been served on 2911-1966 and therefore his services stood terminated as from 1-1-1967 on the expiry of a period of one month from the date of the service of his notice, he being entitled to terminate his service by one month's notice under Rule 12 of the madhya Pradesh Government Servants (Temporary and Quasi Permant Service)Rules 1960; that though some charges had been already framed against him on 16-10-1965, he was not under suspension on the date he sent the said notice of the termination of his services and that he had been reinstated and was working at Narsinghpur when he sent the notice dated 29-11-1966; that as he was not in government Service at the time when he filed his nomination paper in the month of January 1967, his nomination paper could not be legally rejected on the ground that he was disqualified to be a candidate under Article 191 (a) of the Constitution and therefore his nomination paper had been wrongly rejected by the Returning officer (Collector) Narsinghpur on 23-1-1967. The second contention urged by the petitioner in his petition was that the nomination paper of the respondent had been wrongly accepted as she held an office of profit at all relevant times on account of her holding the office of District honorary Family Planning Education Leader under the Government of India in the ministry of Health (Director General of Health Services, New Delhi ). It was averred in the petition that she was being granted honorarium of Rs. 2000 per year and that this rendered her disqualified to be a candidate for the State Legislature. The third contention advanced by the petitioner in his petition was that in order to facilitate the election of the party candidates the State Government mala fide declared that land revenue to the extent of Rs. 5 in sum and of land to the extent of 7. 5 acres in area was to be exempt from the payment of land revenue. The said declaration was made in the Ordinance No. 19 of 1966 which came into force on 23rd December 1966. It was also urged that the number of tenants affected by the said Ordinance in the Constituency was very large, they being more than thirty thousand. It was alleged in the petition that the declaration of the said Ordinance amounted to corrupt practice of undue influence within the meaning of Section 123 of the Representation of the People Act, 1951, and rendered the election of the respondent void. (After stating the defence of the respondent and the issues and finding that the petitioner was a temporary government servant (paras 3 to 9) the judgment proceeded):-
(3.) IT is also clear from his statement Ex. P-2 which was made on 23-1-1967 before the Returning Officer that when he sent the notice of the termination of his services on 29-11-1966, a departmental enquiry was pending before the Collector, jabalpur, against him and that the said enquiry was commenced under the orders of the Government on 19-1-1965 and that actually the charges for the enquiry and statement of allegations were received by him on 26-11-1965. The question therefore which arises for consideration is as to whether simply taking advantage of the fact that he had been reinstated and was not under suspension he could, by sending a notice of his intention to resign, terminate his services even when the enquiry was pending against him This question was fully considered by a Division bench of this Court in V. P. Gidroniya v. State of Madhya Pradesh, 1967 MPLJ 39 = (AIR 1967 Madh Pra 231 ). In that case the enquiry was against a Government servant who was placed under suspension by the Government. Their Lordships considered the question of the Government servant's rights to give a notice under Rule 12 of the rules for termination of his services in paragraph 7 of their judgment and observed: ". . . . . It must first be noted that the appointing authority possesses two powers, to terminate the services of a temporary public servant It can either discharge him purporting to exercise its powers under the terms of the contract of employment of the relevant rule. In such a case. Article 311 of the Constitution does not apply. The appointing authority can also act under its powers to dismiss or remove a temporary servant by way of punishment after complying with Article 311 (2) of the constitution. Even after a formal departmental enquiry has been initiated against a temporary servant, it is open to the authority to form the view that it is not necessary or expedient to terminate the services of a temporary servant by issuing an order of dismissal or removal against him and to stop the departmental enquiry and then pass an order of discharge in terms of the contract of employment or the relevant rule. The question when such an order of discharge would amount to an order of dismissal or removal attracting Article 311 of the constitution, does not arise for consideration in this. This aspect of the matter has been dealt with in Jagdish Mitter v. Union of India, AIR 1964 sc 449. The point to be noted here is that where the appointing authority elects to dismiss or remove a temporary servant after holding a departmental enquiry and in accordance with Article 311 (2) of the constitution, then while the departmental enquiry is pending, neither the temporary Government servant nor the appointing authority can put an end to the services of the Government servant by passing an order in terms of the contract of employment or the relevant rule. The departmental enquiry has to be stopped first before the services of a temporary servant can be terminated in the exercise of the powers under the terms of the contract of employment or the relevant rule. As the departmental enquiry directed by Government against the petitioner was pending on 6th June, 1964, and is still pending, the petitioner is precluded from exercising his right under Rule 12 of the Rules and giving a notice to the appointing authority for termination of his services, and consequently the notice that he gave on 6th June 1964 was altogether ineffective and invalid. " Shri R. K. Pandey, learned counsel for the petitioner, urged that the aforesaid observations have no application in the present case as in the case before their lordships the Government servant concerned was under suspension. He has argued that the observations quoted above cannot govern a case in which the government servant was not under suspension at the time of the enquiry. I am unable to accept this contention as correct. The underlined (here in ' ') portion of the observations reproduced above is of a very wide amplitude and fully applies to the case of a Government servant against whom an enquiry is being made, whether he is suspended or not during the course of the enquiry The implications of the observations made in paragraph 7 of their Lordships' judgment have been made more explicit and clear in paragraph 8 where it has been observed: --"the fact that the petitioner was suspended pending the departmental enquiry does not in any way alter the position. On the other hand, it reinforces the conclusion that during the period of suspension a temporary Government servant cannot exercise the right of having his services terminated by giving a notice to the appointing authority. " i, therefore, conclude that the ratio of Girdroniya's case, 1967 MPLJ 39 = (AIR 1967 Madh Pra 231) (supra) fully applies to the present case and the petitioner could not by his notice Ex. P-5 terminate his services automatically from 1-1-1967 or any other date. For these reasons, I answer the last portion of issue No. 1 (b)by saying that the services of the petitioner did not stand automatically terminated on 1-1-1967. On Issue No. 1 (c) I hold that the petitioner could not terminate his services during the pendency of the departmental enquiry against him by serving a notice. I decide issue No. 2 by holding that on 29-11-1966, when the said notice was given the petitioner was not under suspension and he had been reinstated. I decide issue No. 3 against the petitioner by holding that though Madhya Pradesh government Servants (Temporary and Quasi Permanent Service) Rules, 1960 are applied to the petitioner, he could not, while the enquiry was pending against him, terminate his service by giving a notice under Rule 12 thereof.;


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