FAO No.756 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.756 of 2009 DATE OF DECISION: 28.06.2010 **** Makhan Singh . . . . Appellant VS. The Presiding Officer, Election Tribunal-cum-Additional Deputy Commissioner (General), Ferozepur and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.M.L. Saggar, Sr. Advocate with Mr.A.B.S. Sidhu, Advocate for the appellant. None for respondents No.1 & 3. Mr.D.S. Pheruman, Advocate for respondent No.2. Mr.Ram Lal Gupta, Addl. A.G. Punjab for respondent No.4. **** RAKESH KUMAR JAIN J. This appeal is directed against order dated 14.1.2009 passed by the Election Tribunal-cum-Additional Deputy Commissioner (General), Ferozepur by which election petition filed by Jatinder Pal Singh (respondent No.2) against Makan Singh (appellant) has been allowed and respondent No.2 has been declared to be duly elected to the office of the Panch of Gram Panchayat, Village Hollanwali, Block Zira, Tehsil Zira, District Ferozepur, in place of the appellant. FAO No.756 of 2009 -2- The five members Panchayat of village Hollanwali comprises of two posts of General category male, two posts of General category female and one for Scheduled Caste male. Both appellant and respondent No.2 contested for the office of Panch from the General category meant for males in the election held on 26.5.2008. In the said election, appellant polled 93 votes whereas respondent secured 12 votes. Consequently, appellant was declared elected as a Panch of Gram Panchayat of village Hollanwali in the General category meant for males. Respondent No.2 challenged his election by way of an election petition filed under Section 76 of the Punjab State Election Commission Act, 1994 (for short ‘the Act’) read with Rule 50 of the Punjab Panchayat Election Rules, 1994 (for short ‘the Rules), inter alia, on the ground that the appellant was not qualified to contest the election being an employee of the Punjab Ex-Servicemen Corporation, a Punjab Government Undertaking owned and controlled by Punjab Government as he was working as a Security Guard with the Bharat Sanchar Nigam Limited (for short ‘BSNL’) Exchange of Sherkhan, which is also a Government of India enterprise. The appellant contested the election petition on the ground that he was not a regular employee of BSNL as he was working on daily wages. He denied that he was not qualified to contest the election and his nomination paper has been wrongly accepted by the Returning Officer. Both the parties led their evidence and the Election Tribunal set aside the election of the appellant on the ground that on 16.5.2008 when he had filed his nomination paper, he was an employee of Punjab Ex- Serviceman Corporation, which is a Punjab Government Undertaking and is a Corporate body owned and controlled by the State Government as he was drawing the salary from the said Corporation and was working as a Security Guard with the BSNL. Thus, in view of the provision of FAO No.756 of 2009 -3- Section 11(j) of the Act, it was held that the appellant was not eligible to contest the election for the office of Panch of the Gram Panchayat. Aggrieved against the order of the Tribunal, the appellant has preferred the present appeal, which was admitted and the operation of the impugned order was stayed. The impugned order has been assailed by the appellant, inter alia, on the ground that election of the appellant has been illegally set aside in terms of Section 11(j) of the Act, which is totally inapplicable to the facts and circumstances of this case. It is also argued that even if it is presumed that the appellant was working as a Security Guard and drawing his salary from the Corporation, which was formed under the Punjab Ex-Serviceman Corporation Act, 1978, even then the appellant had not earned any disqualification in terms of the provision of Section 11(g) of the Act and that the election petition was not maintainable in view of Section 77 read with Section 80 of the Act. It is also submitted that holding an office of profit under a Corporation is a disqualification under Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994 (for short ‘Act No.9 of 1994) which would not be applicable in view of decision of the Supreme Court in the case of “Som Lal Versus Vijay Laxmi” 2008 (3) PLR 435. To defend the order of Tribunal, learned counsel for the respondents has argued that the appellant being an employee of the Corporation owned by the State Government is disqualified for being a member of the Panchayat, therefore, his election has been rightly set aside by the Tribunal. In support of his contention, he relies upon a decision of the Supreme Court in the case of “Chet Ram Versus Jit Singh” 2008(4) RCR (Civil) 803. FAO No.756 of 2009 -4- I have heard both the learned counsel for the parties. Before adverting to the facts of this case, it would be appropriate to refer to certain relevant provisions of the Act No.9 of 1994 and the Act. “Section 208 of the Act No.9 of 1994: Disqualification for Membership. (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat if,- (a) he is so disqualified by or under any law for the time being in force for the purpose of elections to the Legislature of the State : Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) has been found guilty of any corrupt practice in any election of a Gram Panchayat, Panchayat Samiti or Zilla Parishad; (c) has been convicted of any offence involving moral turpitude or an offence implying of any defect of a Sarpanch or Panch or Gram Panchayat or member of a Panchayat Samiti or Zila Parishad, unless a period of five years has elapsed since his conviction; or (d) has been convicted of an election offence; or (e) has been ordered to give security for good behaviour under section 110 of the Code of Criminal Procedure, 1973; or FAO No.756 of 2009 -5- (f) has been notified as disqualified for appointment as public servant except on medical grounds; or (g) is a whole-time salaried employee of any local authority, Statutory Corporation or Board or a Co-operative Society registered under the Punjab Co-operative Societies Act,1961, or of the State Government or the Central Government; or (h) is registered as a habitual offender under the Habitual Offenders (Control and Reforms Act, 1952, or any other law for the time being in force; or xx xx xx Section 11 of the Act: Disqualifications for membership of a Panchayat or a Municipality.- A person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality,- (a) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; or b) if he is of unsound mind and stands so declared by a competent court; or c) if he is an undercharged insolvent; or (d) if he has, in proceedings for questioning the validity or regularity of an election, been found guilty of any corrupt practice; or FAO No.756 of 2009 -6- (e) if he has been found guilty of any offence punishable under Section 153A or Section 171E or section 161F or section 376 or section 376A or section 376B or section 376C or section 376D or section 498A or section 505 of the Indian Penal Code, 1960 or any offence punishable under Chapter XIII of this Act unless a period of six years has elapsed since the date of such conviction; or (f) if he holds an office of profit under a Panchayat or a Municipality; or (g) if he holds an office of profit under the Government of India or any State Government; or (h) xx xx xx" Section 77 of the Act : - Parties to the petition – A petitioner shall join as respondent to his petition – (a) where he, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates and where no such further declaration is claimed, all the returned candidates, and (b) any other candidate against whom allegation of any corrupt practice is made in the petition. FAO No.756 of 2009 -7- Undisputedly, the basic dispute in this case is “as to whether appellant being an employee of the Punjab Ex-Serviceman Corporation was eligible to contest the election for the post of Panch”. Although respondent No.2 as well as learned Tribunal has invoked provisions of Section 11(j) of the Act but the said provisions are not applicable because Section 11(j) provides that if a candidate having held any office under the State Government or any Panchayat or any Municipality or any other State level authority or Government Company or any Corporate body owned or controlled by the State Government or Government of India has been dismissed from service would not be eligible to contest election unless a period of four years has elapsed since his dismissal. Admittedly, it is not the position in the present case as there is no allegation against the appellant that being an employee of the Corporate body, namely, Punjab Ex-Serviceman Corporation, which is controlled and owned by the State Government, the appellant was dismissed from service and has filed his nomination paper before expiry of four years from the date of his dismissal. Thus, the finding returned by the Tribunal to upset the election of the appellant is on a misconceived notion and as such the impugned order is patently illegal. During the course of hearing learned counsel for the respondent has argued that the Tribunal has inadvertently invoked Section 11 (j) of the Act and in fact provisions of Section 208(1)(g) of the Act No.9 of 1994 would be applicable. It is submitted that Section 208(1)(g) also provides disqualification according to which a person shall be disqualified for being chosen as and for being a member of a Panchayat if he is a whole timed salaried employee of a local authority, Statutory Corporation or Board or a Co- operative Society registered under the Punjab Co-operative Societies Act, 1961 or of the State Government or the Central Government. It is submitted that since the appellant is the employee of a Statutory Corporation, namely, Punjab Ex-serviceman Corporation, which is formed under the Punjab Co-operative Societies Act, 1961, therefore, he was ineligible to contest the election for FAO No.756 of 2009 -8- the office of Panch. In this regard, learned counsel for the appellant has relied upon decision of the Supreme Court in the case of Som Lal Versus Vijay Laxmi (supra) to contend that the matter is no more res integra because it is held by the Supreme Court that the aforesaid disqualification is only mentioned in Section 208 of Act No.9 of 1994 and is not a part of disqualification enumerated under Section 11 of the Act which is later in point of time than the Act No.9 of 1994, the disqualification mentioned in Section 11 of the Act will prevail and not the disqualification mentioned in Section 208 of the Act No.9 of 1994, which could survive only in case they are consistent with the disqualifications provided in Section 11 of the Act and not otherwise. Learned counsel for the respondent has failed to cite any law contrary to the aforesaid judgment of the Supreme Court, which holds the field as on now. However, insofar as, the judgment cited by the learned counsel for the respondent in the case of Chet Ram (Supra) is concerned, in that case, it was held by the Supreme Court that a Gramin Dak Sewak is a Government servant and is disqualified to become the member of the Panchayat in terms of Section 11(g) of the Act which provides disqualification for being chosen and as a member of the Panchayat if a person holds an office of profit under the Government of India or any State Government, therefore, the aforesaid judgment in the case of Chet Ram (Supra) is on altogether different facts and is not applicable to the facts and circumstances of the present case. Since, the impugned order does not survive for the reasons mentioned herein above, it would not be necessary to delve upon the effect of non-compliance of Section 77 read with Section 80 of the Act. In view of the aforesaid discussion, the present appeal is allowed and the impugned order is set aside with costs throughout. FAO No.756 of 2009 -9- (RAKESH KUMAR JAIN) 28.06.2010 JUDGE Vivek