Important PointElection law which provides for a disqualification must be construed strictly.

Headnote:Bihar Panchayat Raj Act, 1993—Section 139(1)(f)—Disqualification— Appellant was elected as member of Nauhatta Panchayat Samiti and was granted election certificate by competent authority—Election petition was filed by respondent No. 6 for setting aside election of appellant and for declaration of himself as elected on ground that appellant was Dafadar and was discharged from post for illegal and irregular conduct and appellants writ against order of discharge was dismissed—At instance of respondent No. 6, State Election Commission considered the question whether appellant stood disqualified for being dismissed from service and dismissed application on finding that order of dismissal was not for commission of misconduct—High Court set aside the order in writ holding that dismissal of appellant was on account of misconduct as he had absented from duty and said allegation had been proved—Appeal—Whether judgment of High Court was right and justified? No.
Held : Section 139(1)(f) of the Act which provides for a disqualification, must be construed strictly. The disqualification set down in Section 139(1)(f) would be attracted when the requirements laid down therein are fulfilled, which would mean that the elected candidate should have been dismissed from service of the Central or State or other local authority (i) for commission of misconduct; and (ii) he has been declared disqualified for employment in public service. The State Election Commissioner in his order noticed that the order of dismissal passed as against the appellant herein did not indicate that the same was for any misconduct committed by him, the order of the District Magistrate revealed that his services were dispensed with only because his appointment was found to be illegal whereas the order passed by the Superintendent of Police indicated that the appellant had been dismissed/removed from service for not doing his work properly. No finding of fact was arrived at either by the Superintendent of Police or the District Magistrate or for that matter, by the State Election Commissioner that prior to the issuance of the said letter, a disciplinary proceeding was initiated against the appellant and he was found to have committed any misconduct within the meaning of the provisions of the Bihar Civil Services Classification Appeal Rules or otherwise. The order imposing penalty was not before the High Court. There was nothing to show that the said order fulfilled the conditions precedent for invoking the provisions of Section 139(1)(f) of the Act. The High Court therefore, in our opinion, completely misdirected itself in holding that as the appellant had absented himself from duty the same constituted misconduct and thus his election was void. The High Court did not go into the correctness or otherwise of the order of the State Election Commission. On what premise the power of judicial review was exercised by the High Court is not indicated. No cogent or sufficient reasons have been given by the High Court for setting aside the well considered order of the State Election Commission. Furthermore, issuance of a writ of quo warranto is discretionary and such a writ should be issued only upon a clear finding that the appointment to a public office was contrary to the statute. For the said purpose it was obligatory on the part of the High Court to arrive at a finding that the disqualifying clause contained in Section 139(1)(f) was squarely attracted in the case of the appellant, in the light of the order of the State Election Commission. Evidently, the appellant was not disqualified. (Paras 10 to 12)

Judgment

S.B. Sinha, J.—Leave granted.

2. This appeal is directed against the judgment and order dated 4.10.2004 passed by a Division Bench of the Patna High Court in CWJC No. 3205/2003, whereby and whereunder the writ petition filed by the 6th respondent herein, questioning an order dated 29.1.2003 passed by the State Election Commission, was allowed. The basic facts are not in dispute. The appellant was elected as a member of Nauhatta Panchayat Samiti from Ward No. 17, in that Panchayat in an unreserved seat in an election held on 11.4.2001. He was granted an election certificate by the competent authority on 14.5.2001. It is not in dispute that respondent No. 6 herein has filed an election petition in the Court of the Subordinate Judge, Saharsa, as Election Petition No. 6/2001, inter alia, praying for setting aside the declaration of the appellant herein as a member of Panchayat Samiti and for a declaration of himself as elected instead.

3. In the said election petition it was categorically stated that the O.P. No. 2 was a Dafadar and he was discharged from his post for his illegal and irregular conduct and against the order of discharge, O.P. No. 2 filed a writ petition in the High Court of Patna and the same was dismissed. Indisputably the said election petition is still pending.

4. The Legislature of the State of Bihar enacted Bihar Panchayat Raj Act, 1993. Section 139(1)(f) of the said Act reads thus :

"Disqualification— (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the post as Mukhia, member of the Grampanchayat, Sarpanch, Panch of the Gram Katchahri, member of the Panchayat Samiti and member of Zila Parishad, if such person:

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

(f) Has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service;"

5. The Bihar Panchayati Election Rules were framed thereunder. Rule 122 of the said Rules was amended on 28.2.2002, whereby and whereunder the State Election Commission was empowered to determine the question as to whether a member of the Panchayat, at any level, had disqualified himself on any ground enumerated in various sub-clauses therein. Such a power could be exercised by the State Election Commission either suo motu or on the relevant facts being brought to its notice.

6. Rule 122 of the said Rules reads as under :

"Rule 122 : Under provisions of section 139(2) of the Bihar Panchayat Raj Act; 1993, the State Election Commission shall be the competent authority to decide whether a member of a Panchayat at any level has become subject to any of the disqualifications mentioned in section 139(1) of the Act. The matter of disqualification may be brought to the Commission in the form of a complaint, application or information by any person or authority. The State Election Commission may also take suo motu cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard."

7. It is furthermore not in dispute that the State Election Commission at the instance of respondent No. 6 considered the question as to whether the appellant herein stood disqualified having regard to the fact that the appellant was dismissed from service. It is not in dispute that the appellant was appointed as a Dafadar in a temporary capacity. He was allegedly dismissed from service by the Superintendent of Police, Saharsa, by an order dated 9.8.1980.

8. Respondent No. 6, despite the fact that his election petition was pending in which the issue in question was whether the appellant herein stood disqualified by reason of the order of dismissal dated 9.8.1990, filed an application before the State Election Commission purported to be in terms of Rule 122 of the Rules. By an order dated 29.1.2003 the said application was dismissed. The State Election Commission had no

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