IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6506 of 2007 NAND KUMAR SAO, son of Jagarnath Sao, resident of village- Sonwarsa Parsadi English, P.O. Parsadi English, P.S. & District- Arwal. . . . . Petitioner. Versus 1. THE STATE ELECTION COMMISSION, through Election Commissioner, Bihar, Patna. 2. The Election Commissioner, Bihar, Patna. 3. The State of Bihar, through the District Magistrate-cum-District Election Officer, Arwal. 4. The Sub-Divisional Officer, Arwal. 5. The Block Development Officer-cum-Returning Officer, Arwal. 6. Shail Kumari wife of Bindeshwar Ram, resident of village-Korium, P.O. Bara Korium, P.S. & District- Arwal. 7. Indrajeet Thakur, son of not known, resident of village & P.O. Parsadi English, P.S. & District- Arwal. 8. Zuwair Ansari, son of late Serajuddin Ansari, resident of village & P.O. Parsadi English, P.S. & District- Arwal. 9. Rajendra Sao, son of late Ramnath Sao, resident of village- & P.O. Parsadi English, P.S. & District- Arwal. 10. Lalan Ram, son of Muni Ram, resident of village-Santban Bigha, P.O. Bara Korium, P.S. & District- Arwal 11. Wasimul Haque, son of Rajjak Ansari, resident of village & P.O. Parsadi English, P.S. & District- Arwal. 12. Bidhi Chandra Pandit, son of late Hanuman Pandit, resident of village-Satpura, P.O. Bara Korium, P.S. & District- Arwal. 13. Satendra Pandit, son of Dev Muni Pandit, resident of village & P.O. Parsadi English, P.S. & District- Arwal. 14. Shamu Uddin, son of Azim Ansari, resident of village & P.O. Parsadi English, P.S. & District- Arwal. 15. Sunita Devi, wife of Chandra Shekhar Prasad, resident of village & P.O. Parsadi English, P.S. & District- Arwal. . . . . . Respondents. For the petitioner : Mr. Uma Kant Shukla, Mr. Shakti Suman Kumar, Advocates For the Resp. no.6 : Mr. Devendra Pd. Singh, Mr. Kamlesh Kr. Sharma, Advocates For the Commission : Mr. Sanjeev Nikesh, Advocate For the State : Mr. Indeshwari Pd. Maul, AC to GA 8 ----------- 4/ 03.11.2009 Heard learned counsel for the petitioner and the State. The instant writ application is directed against the judgment and order dated 20.04.2007, passed in Election Case No. 29 of 2006 by Sri H.N. Pandey, Civil Judge (Jr. Division)-cum-Election Tribunal, Jehanabad, whereby the learned court below had set aside the Election of - 2 - the petitioner from the post of Mukhia of Sonwarsa Panchayat. The petitioner and respondent nos. 6 to 15, were the candidates for the post of Mukhia of Sonwarsa Panchayat, the election for which was held on 05.05.2006. The result was declared on 05.06.2006. The petitioner having received the highest number of votes was declared elected and began to function as Mukhia. Respondent no.6, Shail Kumari, filed Election Case no. 29 of 2006 for setting aside the election of the petitioner on various grounds including commission of corrupt practices and non-disclosure of relevant facts that he was Court Martialled and sentenced to dismissal from service. The allegation was also one of suppression of material facts in affidavit submitted along with the nomination paper. The learned Court-cum-Election Tribunal by its judgment and order dated 20.04.2007 allowed the aforesaid Election petition. The Tribunal found that petitioner has been convicted and was found guilty of improper possession of ammunitions, belonging to the Government and was Court Martialled under the provisions of paragraph 592 of Army Regulations. He further submits that the case of the petitioner came under the category of corrupt practices as defined under Section 136(1) (b) read with Section 141(ix) of the Bihar Panchayat Raj Act, 2006 read with Sub-clause 4 of Section 123 of the Representation of People‟s Act. Learned counsel for the respondent states that despite having knowledge of being convicted and dismissed from service in a Court Martial proceeding, he did not disclose the aforesaid facts in his - 3 - affidavit. The petitioner was obliged to have disclosed the aforesaid facts, which were in nature of inherent disqualifications in itself. In support of his submission, learned counsel for the respondent relied upon a decision reported in 2002(1) PLJR 495, in the case of „Suo Motu action by the High Court Vs. The State of Bihar & Ors‟. In the aforesaid case, the Division Bench of this Court was considering the scope of Section 139 of the Bihar Panchayat Raj Act, 1993 and Article 243 F of Constitution of India, which provided for disqualifications of membership of Panchayat. This court emphasized and laid down that “duty to declare the truth on one‟s qualification is an obligation on the candidate seeking election. In case, if the person does not mention about such disqualification, the same is inherent.” Learned counsel for the petitioner submits that as he did not incur any disqualification under Section 136 of the Bihar Panchayat Raj Act, 2006, as such he did not mention about the Court Martial proceedings and his dismissal from service. In support of his submission learned counsel for petitioner referred to the relevant provisions e.g. Section 136(f) and (g) which is quoted hereinbelow for the sake of convenience: “136(f) Has been dismissed from the service of Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service; (g) Has been sentenced by a criminal court whether within or out of India to imprisonment for an offence, other than a political offence, for a term exceeding six months or has been ordered to furnish security for good behavior - 4 - under Section 109 or Section 110 of the Code of Criminal Procedure, 1973 (Act 2, 1974) and such sentence or order not having subsequently been reversed;” By referring to Clause 136(f) of Bihar Panchayat Raj Act, learned counsel submitted that mere dismissal from service on account of misconduct would not incur any disqualification unless and until he has been declared to be disqualified for employment in public service, as well. The authorities while dismissing the petitioner did not declare that he would be disqualified for employment in public service. Thus he submits that he did not come under provisions of Section 136(f) of the Bihar Panchayat Raj Act much less Section 136 (g). He contends that he would not either come under the purview of Section 136(g) of Bihar Panchayat Raj Act, as no criminal court including the court of Court Martial has passed any sentence of imprisonment much less beyond six months or stipulation that petitioner would furnish security for good behavior under Sections 109 and 110 of the Code of Criminal Procedure. Thus, on these basis, counsel for the petitioner submits that as he did not incur any inherent disqualifications under aforesaid provisions, he did not disclose the aforesaid facts in his affidavit at the time of filing of his nomination paper for the post of Mukhia. He further submits that the words in statute, if it is clear and specific then no other meaning should be attached to it. The petitioner does not dispute the propositions that he can be Court Martialled for misconduct and a sentence of dismissal can be passed against him. - 5 - Section 136 (1) (f) of the Bihar Panchayat Raj Act was also under consideration in the case of Ranjeet Kumar Vs. State of Bihar reported in 2009(4) PLJR 194. This Court in paragraph 15 held that…. “A mere order of dismissal has to be treated as carrying with it without any specific words being used a declaration regarding disqualification for employment in public service as the same is implied in the use of the term „dismissal from service‟.” It would be relevant to quote paragraph 15 of the aforesaid judgment. “ It is necessary at this stage to deal with the submission of learned counsel for the respondent No.8 that even if it were held that there has been dismissal from service of a Local Authority, etc. for misconduct, there ought to be a further declaration regarding disqualification for employment in the public service. It is true that clause (f) of Section 136(1) of the Act has used the said words but by long line of decisions the Apex Court and this Court has pointed out the distinction between dismissal from public service and removal from public service and it has been clearly held that a dismissal entails debarring from future public employment whereas a removal from service does not carry any such consequence. In that view of the matter, a mere order of dismissal has to be treated as carrying with it without any specific words being used a declaration regarding disqualification for employment in public service as the same is implied in the use of the term „dismissal from service‟.” Section 136(1)(f) can be looked into also, in light of Sections 77 and 78 of the Army Act. Section 77 of the Army Act states that a Warrant Officer or a non-Commissioned officer sentenced to by a Court - 6 - Martial to transportation, imprisonment or dismissal from the service, shall be deemed to be reduced to the ranks. The petitioner admittedly would not come under the aforesaid provision. Section 78 of the Army Act also talks about reduction in the ranks of a person convicted on active service it provides that such persons so sentenced by a Court-Martial to dismissal, or to transportation or imprisonment can be directed to be retained to service in the ranks, if the authorities find so expedient. In the instant case, while passing the impugned order of dismissal, the authorities did not pass any order under Section 78 of the Army Act, 1950 retaining the petitioner to serve under a reduced rank. As per Sections 77 and 78 of the Army Act, 1950 it appears that a warrant officer or a non-commissioned officer either sentenced to dismissal, or to transportation or imprisonment or dismissal would be deemed to be reduced to ranks or can be retained in service in reduced ranks. The Army Act or Regulations do not require any specific pronouncement that a dismissed employee has also been disqualified from public employment and thus he would be deemed so, unless in terms of Sections 77 and 78 of Army Act, there is specific order of retaining the delinquent in reduced ranks. In the instant case, the petitioner has not brought any material on record to show that he was retained in reduced ranks or allowed to continue in service. In such circumstances, it would be deemed that he was disqualified from employment in public service and would incur disqualification under Section 136(1) (f) of the Act. In the backdrop of the aforesaid discussions, I find that - 7 - petitioner stood disqualified for employment in public service under Section 136 (g) of the Act pursuant to dismissal in court Martial proceedings. Consequently, I do not find any merit in the application and the same is dismissed. The commission will take the necessary action. Uday/ (Samarendra Pratap Singh, J.)