P. SAM KOSHY, J.

1. The Challenge in the present writ petition is to the order Annexure P/1 dated 25.04.2019 passed by the respondent No. 2 Commissioner, Tribal & Schedule Caste Development Department, Raipur. Vide the said order, the petitioner has been placed under suspension for the same alleged misconduct.

2. Counsel for the petitioner, at the outset, submits that the action of suspending the petitioner in the midst of election code of conduct being in operation is per se illegal.

3. According to the petitioner, he was assigned the duties of an Assistant to the nodal officer for the on going parliamentary election and therefore for all practical purposes under the provision of Section 28 (A) of the Representation of People Act 1951, the services of the petitioner stand on deputation to the Election Commission of India and therefore any disciplinary action could have been taken only by the Election Commission of India. In the instant case the impugned order of suspension has been issued by the respondent No. 2, neither under the instructions of the Election Commission, nor has been issued by the office of the Election Commission in any manner.

4. Counsel for the petitioner referred to the judgment of the M.P High Court in the case of S.K. Tripathi Vs. State of MP and Others, (2009) 3 MPHT 504, where the facts are somewhat similar to the present writ petition.

5. The State counsel on the contrary opposing the petition submitted that it is a case where the petitioner was found to have committed same misconduct and immediately when it was detected by the competent authorities in the Department, they have issued an order placing the services of the petitioner under suspension vide order dated 25.04.2019. That he further contents that so far as the Election in the State of Chhattisgarh is concerned since that was over on 23.04.2019 therefore the order can not be said to be hit by section 28 (A) of Representation of People Act 1951.

6. Having heard the contentions put forth on either side and on perusal of records what is undisputed fact that the petitioner is working as a circle coordinator under the Tribal & Schedule Caste Development Department. The petitioner admittedly was assigned the work of Election duties in the on going parliamentary Election. The petitioner was discharging the duties of Assistant to the Nodal Officer as is evident from his identity card and other documents enclosed by the petitioner in this writ petition as such he has been assigned the election duties.

7. Given the aforesaid admitted fact, it would be necessary at this juncture to refer to Section 28 (A) of the Act of 1951, held as under:-

"28A. 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 of such election and accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission."

8. The Division Bench of the M.P High Court in somewhat similar facts in the case of S.K. Tripathi Vs. State of M.P. and others, (2009) 3 MPHT 504 wherein the District Education Officer was placed under suspension by the Divisional Commissioner during the election period and relying upon the judgment in the case of Umesh Singh Yadav 1992 M.P.L.J 173 in Paragraph-9 & 10 has held as under:-

"9. The distinction which is sought to be made by Mr. Shukla, in my considered opinion, is really not of any assistant to him. What has been stated by the Division Bench is that the power vests in the Election Commission for