Supreme Court To Hear Jharkhand IAS Officer's Plea Against HC Refusing To Hear Challenge To ECI Direction For Disciplinary Action

The Supreme Court today issued notice on a plea involving the issue as to whether the Election Commission of India's direction to state government to take disciplinary action against a District Election Officer ought to be challenged before the jurisdictional High Court or the Central Administrative Tribunal.A bench of Justices Hrishikesh Roy and Pankaj Mithal called for the response of the ECI (and others), on a challenge by Manjunath Bhajantr IAS to a Jharkhand High Court order whereby his plea challenging the ECI direction for disciplinary action was rejected on the ground of maintainability.Senior Advocate PS Patwalia appeared for Bhajantri and argued that once a chargesheet is issued, then a dispute of the nature involved in the present case becomes a service matter (determinable by CAT). However, when the ECI has only issued a direction, then it has to be tested on the scope of the powers under the Representation of the People (RP) Act. Further, the senior counsel pressed in support of his arguments judgments of the Kerala and Madras High Courts, which have held that such disputes are to be examined under Article 226 of the Constitution.Senior Advocate Maninder Singh appeared for ECI.Factual BackgroundBhajantri, an IAS officer, was posted as Deputy Commissioner, Deoghar during bye-election of Madhupur Legislative Assembly Constituency held in April, 2021. Being the Deputy Commissioner-cum-District Election Officer, he informed the Chief Electoral Officer, Jharkhand about various incidents of alleged violation of the Model Code of Conduct, disturbing of communal harmony and intimidating of voters as well as spreading of racial hatred (by persons including Dr. Nishikant Dubey, Member of Parliament) during the election campaign of the said bye-election.Subsequently, the ECI received a complaint that Bhajantri and SP, Deoghar were acting as agents of a political party during the bye-election and an enquiry should be conducted. As such, ECI removed Bhajantri from the position of DEO-cum-DC, Deoghar on 26.04.2021. Later, Bhajantri was again posted as DC, Deoghar. On 23.10.2021, he directed the concerned authorities to take legal action against Dubey. Five FIRs were lodged against Dubey under various sections of IPC (for violating the MCC).As CEO, Jharkhand claimed that neither any intimation was received from Bhajantri before/after lodging of the FIRs, nor any direction was issued from the CEO office in that regard, the ECI sought an explanation from Bhajantri on aspects relating to the registration of the FIRs. Dissatisfied with the explanation, the ECI, on 06.12.2021, directed the State government (in exercise of powers under Section 20A r/w 28A of the RP Act) to initiate disciplinary proceeding for major penalty against Bhajantri (with further direction not to post him as DC/DEO on any other election duty without its prior permission).Proceedings before the High CourtChallenging ECI directions of 06.12.2021, Bhajantri approached the Jharkhand High Court. He argued inter-alia: (i) since the result of the bye-election was declared much prior to the issuance of communique dated 06.12.2021, there was no employer-employee relationship between him and ECI at the relevant time, and (ii) the communique dated 06.12.2021 was in the nature of a recommendation to the State Government to take disciplinary action and pursuant to the same, no order had been passed against him by the State government.When ECI raised an objection to the maintainability of the petition, the same was dismissed by a Single Judge, relying on views taken in similar cases by the Madras High Court and Kerala High Court."as per the scheme of the Act, 1985, any service matter arising out of direct relationship between the employer and the employee will lie before the Central Administrative Tribunal constituted under the said Act. However, in the present case, the petitioner has put challenge to the communique dated 06.12.2021 issued by the respondent no.2 not under any service law, rather the same has been issued in exercise of the power conferred under section 20-A of the Act, 1951", the Single Judge said.In an intra-court appeal, a Division Bench set aside the Single Judge's order, holding that the High Court had no jurisdiction to act as the court of first instance ie the Central Administrative Tribunal. Opining that the writ petition was not maintainable, the Division Bench gave Bhajantri liberty to approach the Tribunal."this Court is of the view that such recommendation which has been made by the Election Commission of India dated 06.12.2021 cannot be said to be optional, rather, it is mandatorily to be accepted by the State otherwise the constitutional spirit of establishment of Election Commission of India will be frustrated and if the same will be frustrated, the same will be nothing but hitting the basic structure of the Constitution of India...the recommendation as made by the Election Commission is the basis of initiation of the...

Supreme Court To Hear Jharkhand IAS Officer's Plea Against HC Refusing To Hear Challenge To ECI Direction For Disciplinary Action

Debby Jain

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