1. The petitioner is an Assistant teacher in a High school. During the last assembly elections, he was nominated as the Presiding Officer of Booth no. 59 of 187 Suryagarha Assembly constituency. At the end of the poll the petitioner showed in his records the casting of 530 ballots but in the ballot box, 579 ballot papers were found which gave rise to much confusion and caused considerable embarassment to the officials responsible for holding the election. According to the respondent authorities, the petitioner admitted that some error was committed by him and he was put under suspension.

2. It appears that a departmental enquiry was held and following the recommendations made by the enquiry officer the Dist. Magistrate cum Dist. Electoral Officer, Lakhisarai passed an order, dated 17.10.2000 (Annexure 1) whereby he gave to the petitioner the punishment of withholding of one annual increment with non-cumulative effect and directed that for the period of suspension, the petitioner will not be entitled to anything beyond the subsistence allowance.

3. This writ petition has been filed challenging the order of punishment passed by the Dist. Magistrate cum Dist. Electoral Officer.

4. On hearing counsel for the parties and on going through the writ petition and the counter affidavit filed on behalf of the respondents, I find that this writ petition must be allowed for the simple reason that the order of punishment is without any legal authority.

5. It is beyond dispute that an Assistant teacher in a high school is under the administrative and disciplinary control of the officials in the Education Department and not the Dist. Magistrate. But the misconduct for which the punishment is imposed was committed not in course of his duties as an Assistant teacher but in the discharge of his duties as the Presiding Officer of a polling booth. Would this circumstance give the Dist. Magistrate cum Dist. Electoral Officer the necessary power and the legal authority to pass an order of punishment against the petitioner ? The respondent authorities seem to think so and in order to justify the action of the Dist. Magistrate reliance is placed on section 28A of the Representation of the People Act, 1951. Section 28A is as follows :

"28-A Returning Officer, Presiding Officer, etc., deemed to be on deputation to Election Commission.The returning officer, assistant returning officer, presiding officer, polling officer and any other officer appointed under this Part, and any police officer designated for the time being by the State Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such election and ending with the date of declaration of the results such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission."

6. On a plain reading the section does not seem to authorise the officials of the Election Commission to impose punishment on a Government employee who may be deemed to be on deputation to the Election Commission. And this position stands further clarified by an order issued by the Election Commission on 7.2.2001. Referring to an order, passed by the Supreme Court, on 21.9.2000 the Commission has laid down the parameters of disciplinary control over the Government employees on deputation to the Commission in the following terms :

"(ka) Duty ke parti awagya athwa awhelna ke liye kisi bhi adhikari/padad- hikari/ police karmik to nilambit karna; (kha) Kisi bhi adhikari/padad- hikari/potice karmik ke asthan par anya veyakti ko rakhana aur jis veyakti ko badla gaya hai, oos ke aacharan ki uchit report dete hue oose oos ke cadre main wapas bhejna jahan kaa woh hai.

"(ga) Nirwachan duty ke dauran duty ki awagya athwa awhelna ke kirtya ke liye anushasnik karwai karne ki sacham paradhikari se sifarish karna. Aisi siphari