Day following poll date must be treated as election duty for presiding officers per Election Commission instructions, regardless of commute distance; employers cannot mark absent or deduct salary contravening such directives.

ORDER

By Justice M.G. Sewlikar, Member (J)

This is an application under Section 19 of the Administrative Tribunals Act, 1985 seeking the relief that 22^nd October, 2019 be treated as a duty period and the salary deducted be paid to the applicant.

2. Facts leading to this application are that the applicant is working in Board of Apprenticeship Training (BoAT). State Assembly Elections were declared in the month of October, 2019. Polling day was 21^st October, 2019. Applicant was appointed on election duty as Presiding Officer on 20^th October, 2019 vide Order dated 23^rd September, 2019 (Annexure- Exhibit A). Vide Communication dated 06th October, 2019, the applicant was to report for election duty on 20th October, 2019 at 8:00 AM. The Polling Station was at Khar (West), Mumbai- 400 052. The applicant accordingly, reported for duty on 20^th October, 2019. He performed the election duty. As per communication dated 06^th October, 2019, following day of the poll was to be treated as election duty. Therefore, the applicant did not join the duties in the Office of BoAT on 22^nd October, 2019. The respondents marked the applicant absent on 22^nd October, 2019. The applicant made representation mentioning therein that as per Instruction SI No. 32 dated 15th November, 1994 (Annexure- Exhibit C) read with Instruction dated 21st October, 2019 (Annexure- Exhibit D) of District Collector and District Election Officer, Mumbai Suburban District, the day following the poll was to be treated as an election duty. This explanation did not find favour with the respondents and they turned down the representation of the applicant. Consequently, because of marking of applicant as absent, his salary for 22nd October, 2019 was deducted from his monthly salary. This order is impugned in this OA.

3. Respondents filed the reply. They contend that the applicant did not join duty on 22^nd October, 2019. He attended the office on 23^rd October, 2019 without producing his relieving order as issued by the electoral authority. The Order dated 21st October, 2019 is conditional. It is applicable to only those constituencies in which more time will be required for travelling back to headquarters. They contend that the applicant who is the resident of Shahapur had attended election duty on 21^st October, 2019 which was treated as a regular duty. At the end of the day, he would ordinarily reach his residence, hence the next day cannot be treated as election duty. The applicant was appointed as Presiding Officer in the constituency in which the headquarters of BoAT is located. Therefore, it was possible for the applicant to come back and join duties on 22^nd October, 2019 that is why the applicant has been shown as absent on that day i.e. 22^nd October, 2019. They also contend that the applicant filed reply of Under Secretary and CPIO of Election Commission of India in which it is stated that the next day of poll will not be treated as holiday for the employees who performed the election duty. This letter makes it amply clear that 22^nd October, 2019 was not to be treated as election duty and, therefore, the applicant ought to have remained present on 22^nd October, 2019.

4. I have heard learned counsel for the applicant and learned senior counsel for the respondents.

5. Learned counsel for the applicant submits that vide Order of District Collector and District Election Officer dated 21^st October, 2019, it is clear that 22^nd October, 2019 was to be treated as election duty. He invites my attention to the Instruction SI No. 32 issued by Election Commission in which it is stated that the day