IMPORTANT POINT
Employees of a cooperative bank not controlled or funded by the government cannot be requisitioned for election duties under the RP Act.

JUDGMENT :

(Sabyasachi Bhattacharyya, J.) :

1. The petitioner no. 1 is an association of employees of a District Cooperative Bank, representing the interests of such employees, and the petitioner no. 2, its Secretary. The present challenge has been preferred against the appointment of the members of the Association, who are employees of the Co-operative bank, as Polling Officers to do election duty for the ongoing parliamentary election under Section 26 of the Representation of the People Act, 1951 (for short, “the R.P. Act”).

2. Learned counsel for the petitioner argues that the bank has been registered under the West Bengal Cooperative Societies Act, 2006 (hereinafter referred to as “the 2006 Act”).

3. However, it does not come within the purview of Section 159(2) of the R.P. Act which stipulates that the staff of local authorities and universities established or incorporated by under a Central, Provincial or State Act, and/or a Government Company, employees of any other institution, concern or undertaking which is established by or under a Central, Provincial or State Act or which is controlled or financed only or substantially by funds provided directly or indirectly by the Central Government or the State Government, come within the purview of Section 159.

4. In the present case, the bank is not controlled or funded by any Government and as such is not an institution, concern or undertaking within the purview of Section 159(2). In support of such submission, a judgment rendered in WPA No. 15513 of 2013 is relied upon where, in connection with an election to the Panchayats of the State of West Bengal, this Court had held that the employees of the Bank are not Government employees or Government servants, since the bank is not funded or controlled by any Government.

5. Learned counsel next argues that the appointment under section 26 of the RP Act has been made without any prior requisition under Section 159 of the Act, which is a prerequisite for such an appointment.

6. Thirdly, it is argued that the reliance of the Election Commission of India (ECI) on Section 21 of the Indian Penal Code is misplaced. In such context, learned counsel for the petitioner placed his reliance on N.K. Sharma Vs. Abhimanyu, reported at AIR 2005 SC 4303 and Rabindra Nath Bera Vs. State of West Bengal, reported at (2011) 5 CHN 377.

7. It is contended that the bank has not been established under a Central or State Act. There is distinction between a body corporate established under such an Act and a body corporate registered/incorporated under an Act. The latter applies to the Co-operative Bank-in-question and as such the arguments of the ECI on that count are not tenable in the eye of law.

8. The provisions of Article 324, it is argued, have to be read with Section 159 of the RP Act and, as such, the reliance on the said Constitutional provision by ECI cannot be accepted.

9. Learned counsel for the respondent no.5, that is the Bank itself, supports the contention of the petitioner and submits that the Bank is merely registered under the 2006 Act and is not established under the said Act and/or controlled or funded by any Government.

10. Learned counsel for the ECI argues that Article 324 of the Constitution is a reservoir of powers of the ECI to seek from the Governor of a State, staff from any institution or organization, irrespective of the fetters of Section 159 of the RP Act. Such plenary power, it is argued, is not circumscribed by the provision of the RP Act, which is a statute enacted under the Constitution.

11. The members of the petitioner no.1, it is argued, come within the definition of “public servant” as defined in Section 21 of the Indian Penal Code (IPC). Thus, by application of Article 324(6) of the Constitution, the power of the ECI to requisition such officers for election duty is wide. Learned counsel also argues that the authority of the State to administer and control a co-operative society flow from Articles 243 ZJ, 243 ZL, 2