2017 Supreme(Bom) 633

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
Z.A. HAQ, J.
Narayan Dinbaji Jambhule - Petitioner
Versus
Dr. Deorao Madguji Holi - Respondent
Election Petition No.4 of 2014
Decided on : 19-01-2017

Headnote:Constitution of India, 1950-Article 19(1)-Representation of People Act, 1951, Section 100(1)(a)- Disqualification.-A Government employee, holding office of profit under State Government, incurred disqualification as per Article 19(1)(a) of Constitution.

       It has to be held that the nomination paper of the respondent No. 5 could not have been accepted by the Returning Officer, as being Government employee the respondent No. 5 was holding office of profit under the State Government and incurred disqualification as per Article 191(1)(a) of the Constitution of India and under Section 100(1)(a) of the Act of 1951.

       Constitution of India, 1950-Article 19(1)(a)-Representation of Peoples Act, 1951, Section 100(1)(a)-Disqualification.-A State Government employee, holding office of profit liable to be disqualified to be chosen as member of legislative assembly.

       The amount deposited by the petitioner as security for the costs of the petition be refunded to the petitioner.

       A copy of this judgment be sent to the State Election Commission and the Chairman of the Maharashtra State Legislature, as required by Section 103 of the Representation of the People Act, 1951.

       Advocate for the respondent No. 5 prays that this judgment be kept in abeyance for two months to enable the respondent No. 5 to take appropriate steps in the matter.

       As it is held that the respondent No. 5 was disqualified for being chosen as the member of the Legislative Assembly, the prayer made on behalf of the respondent No. 5 is rejected.

       Representation of the People Act, 1951 - Section 83(2)-Election petition.-Election petition, cannot be dismissed on ground of non-compliance of Section 83(2) of Act raised belatedly.

       In the judgment given in the case of T.M. Jacob v. C. Poulose and others, reported in JT (1999) 3 SC 72 it is laid down that the defect of the type provided in Section 83 of the Act of 1951 can be dealt with under the Doctrine of Curability, on the principles contained in the Code of Civil Procedure. Had the respondent No. 5 raised the objection at the first instance, the petitioner would have got the opportunity to cure the alleged defects. The respondent No. 5 cannot be permitted to seek dismissal of the petition on the ground that the mandatory provisions of Section 83(2) of the Act of 1951 are not complied with by raising the ground belatedly because of which the petitioner is deprived of the opportunity of curing the defect, if any. Therefore, it has to be held that the election petition is not liable to be dismissed for non-compliance of Section 83(2) of the Act of 1951.

       Maharashtra Civil Services (General Condition of Service) Rules, 1981-Rules 28 to 31-G.R. dated 2.12.1997-Resignation of employee.- Resignation given by Government employee not becomes effective because of failure on part of competent authority to take action.

       The respondent No. 5-Medical Officer sent a communication dated 19th August, 2013 disclosing his intention of resigning from the post of Medical Officer w.e.f. 30th October, 2013. Since there was no communication from the competent authority within one month, he claimed that it is deemed to have been accepted on completion of one month from the date of submission of the resignation letter, as per Clause 4 of Government Resolution (GAD) dated 2nd December, 1997 or from 30th October, 2013 from which date he wanted to quit the post.

       Held, that it would be hazardous to read clause 4 of the Government Resolution dated 2nd December, 1997 to mean that it confers an absolute right on the Government employee to walk out if there is some default on the part of the competent authority in informing him that his resignation is not accepted from some reason. Clause 4 of the Government Resolution dated 2nd December, 1997 cannot be interpreted in such a manner, overlooking the other aspects relevant in Service Jurisprudence which are required to be considered before the employee-employer relationship is treated to have been terminated by the Act of the employee of submitting resignation.

       Clause 4 of the Government Resolution dated 2nd December, 1997 is not the substantive provision dealing with the substantive rights of the Government employee. It only creates the fiction for ascertaining the date from which the relationship of employee and employer ceases on submission of resignation by the employee and failure on the part of the competent authority to take action in the matter and/or to inform the employee that the resignation is not accepted.

       Overlooking all these aspects and the fact that the respondent No. 5 has not brought any evidence on record that he was relieved and the provisions of Rule 28 to Rule 31 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 were complied with, the contention of the respondent No. 5 that he ceased to be the Government employee w.e.f. 1st November, 2013 cannot be accepted.

       It is well established that the termination of the employee- employer relationship by resignation of the employee is not by unilateral act of the employee and unless there is acceptance of it by the employer or other service conditions and statutory provisions are complied with, by deeming fiction it cannot be held that the resignation given by the Government employee becomes effective because of failure on the part of the competent authority to take some action. Therefore, it has to be held that the respondent No. 5 continued in the Government service after 19th September, 2013 and 1st November, 2013.