IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 12426 of 2009(W) -------------------------------------- PETITIONER(S): ----------------------- E.UNNIKRISHNAN, AGED 50 YEARS, S/O. GOVINDAN KAIMAL,SECRETARY, KALANJOOR GRAMA PANCHAYAT(UNDER SUSPENSION), PATHANAMTHITTA DIST. RESIDING AT: ELEMKOOTTIL HOUSE, NEDUPUZHA.P.O., THRISSUR. BY ADV. MR.V.PHILIP MATHEW RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY KERALA GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF PANCHAYATH, TRIVANDRUM. 3. DEPUTY DIRECTOR OF PANCHAYAT, PATHANAMTHITTA. 4. ELECTION COMMISSION OF INDIA, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110001. 5. DISTRICT COLLECTOR AND DISTRICT ELECTION OFFICER, PATHANAMTHITTA. R1,2,3,&5 BY SR. GOVT. PLEADER SMT.ANU SIVARAMAN R4 BY ADV. MR.MURALI PURUSHOTHAMAN, SC,ELE.COMMN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12426/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER OF THE PETITIONER AS A SECTORAL OFFICER FOR 114 LAC KONNI DURING THE GENERAL ELECTIONS- 2009 ISSUED BY 5TH RESPONDENT BY ORDER DTD. 14.3.09. P2:- COPY OF THE ORDER NO.D6 46900/07 DTD. 24.3.09. P3:- COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER DTD. 3.4.09 TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DTD. 9.2.09. ANNEXURE A:- COPY OF THE CIRCULAR NO.464/INST/2009-EPS DTD. 31.3.09. ANNEXURE B:- COPY OF THE PROCEEDINGS NO.E1-8002/09 DTD. 6.4.09 OF THE DISTRICT COLLECT. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.12426 of 2009 -------------------------------------- Dated 13th July, 2009 JUDGMENT Heard Sri.V.Philip Mathews, the learned counsel appearing for the petitioner, Smt.Anu Sivaraman, the learned Senior Government Pleader appearing for respondents 1 to 3 and 5 and Sri.Murali Purushothaman, the learned standing counsel appearing for the Election Commission of India. 2. The petitioner, who was the Secretary of Kalanjoor Grama Panchayat was appointed as Sectoral Officer by the District Election Officer, Pathanamthitta as per Ext.P1 order dated 14.3.2009 in connection with the elections to the Lok Sabha held in April/May, 2009. Shortly thereafter, by Ext.P2 order dated 24.3.2009 he was placed under suspension by the Director of Panchayats on the ground of financial impropriety including misappropriation. Ext.P2 order thus passed by the Director of Panchayats is under challenge in this writ petition. The petitioner contends relying on Sections 13-CC and 28A of the Representation of the People Act, 1950 that as his services have been lent to the Election Commission of India, the Director of Panchayats has no jurisdiction or authority to place him under suspension. He contends that disciplinary power over officers of the WP(C).No.12426/2009 2 State Government, lent to the Election Commission can be exercised only by the Election Commission and not by the lending authority and that Ext.P2 order passed by the Director of Panchayats is therefore one passed without authority. The petitioner contends that the Election Commission has plenary and residuary powers vested in it to give effect to the duty cast on it under Article 324 of the Constitution of India and that the Government cannot place fetters on the power of the Election Commission by placing officers enjoined with election duty under suspension. 3. The first respondent as well as the Election Commission have filed counter affidavits. The Election Commission has stated that before Ext.P2 order of suspension was passed they were not consulted and that as a result of the order of suspension the petitioner was relieved from election duty as per Annexure B order dated 6.4.2009. The Election Commission however maintains the stand that the Election Commission has got the power to place officers whose services have been lent to it under suspension. The State of Kerala has filed a counter affidavit justifying the order of suspension. It is also stated that had the appointment of the petitioner as Sectoral Officer been made known to the Director of Panchayats, the order of suspension would not have been passed. WP(C).No.12426/2009 3 4. In my opinion, on the facts of this case, it is not necessary for this Court to adjudicate on the question whether Ext.P2 order is one without jurisdiction. In view of the fact that Ext.P1 order appointing the petitioner as Sectoral Officer, stood cancelled by Annexure B order dated 6.4.2009, the question raised by the petitioner does not in my opinion really arise for consideration. As a matter of fact, the Election Commission also does not question the competence of the State Government or its officers to place the petitioner under suspension. The stand of the Election Commission is that without consulting them the Government cannot suspend Government employees whose services have been lent to it as otherwise it would disrupt the electoral process. Ext.P2 order of suspension discloses that the petitioner was guilty of improper conduct. The Government have stated that the Director of Panchayats was unaware of the petitioner's appointment as Sectoral Officer when he passed Ext.P2. In any case, even going by the stand taken by the Election Commission, I do not think that the Election Commission would have objected to the petitioner being placed under suspension, if the facts set out in Ext.P2 had been brought to its notice. In these circumstances, on the facts, I find no reason to interfere with Ext.P2. WP(C).No.12426/2009 4 5. Both sides also agree that the order of suspension has taken effect. Nearly four months have passed after the petitioner was placed under suspension. Under the rules governing service conditions of Government servants, an appeal lies from Ext.P2 to the Government. I therefore dismiss this writ petition with the observation that in the event of the petitioner filing an appeal before the Government within two weeks from the date of receipt of a certified copy of this judgment, through the Director of Panchayats, the Director of Panchayats shall forward the same to the Government and the Government shall consider the same and pass orders thereon after notice to and affording the petitioner a reasonable opportunity of being heard. In any case, final orders on such appeal shall be passed within one month from the date on which the Secretary to Government, Local Self Government Department receives a copy of the memorandum of appeal. 6. The petitioner has a further grievance that till date he has not been paid subsistence allowance. This is also a matter which can be brought to the notice of the Government in the appeal filed from Ext.P2. The Government shall even before passing orders on the appeal consider the said grievance and issue necessary directions to the Director of Panchayats to disburse to the petitioner subsistence WP(C).No.12426/2009 5 allowance at the applicable rates if the same has not been so far disbursed. Orders in that regard shall be issued within one week from the date on which the petitioner moves the Government as directed above. I make it clear that I have not expressed any opinion on the merits of the petitioner's contentions as regards the grounds for suspension. The petitioner's contentions on the merits are kept open. P.N.RAVINDRAN Judge TKS