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Crl. M.C. No.3955/2009 Page 1 HIGH COURT OF DELHI
CRL.M.C. 3955/2009
DARSHAN SINGH RETURNING OFFICER & ORS. .... Petitioners
Through: Mr. Vivek Tandon, Advocate
CRL.M.C. 3955/2009
DARSHAN SINGH RETURNING OFFICER & ORS. .... Petitioners
Through: Mr. Vivek Tandon, Advocate
VERSUS
YOGENDER & ORS. ..... Respondents
Through: Nemo.
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 12.02.2013
Petitioners herein are government servants, who were deputed on election duty in the MCD elections in NCT of Delhi held on 5th April, 2007.
Impugned order of 12th March, 2009 while dealing with an application under Section 340 of the Cr. P.C. filed by one candidate- Mr. Yogender Kumar of the aforesaid election in question has sought initiation of criminal prosecution against petitioners. However, as applicant - Mr. Yogender Kumar had not pressed the application for initiation of criminal proceedings against petitioners but had sought a definite finding from the court with regard to the conduct of petitioner- officials on account of which election of the ward in question has been set
2013:DHC:749 Crl. M.C. No.3955/2009 Page 2 aside. A prayer for initiation of departmental proceedings against petitioners was also sought by applicant- Mr. Yogender Kumar.
The relevant finding returned in the impugned order deserves to be taken note of and it is as under:-
‘It is evident from my findings in the main election petition that firstly it has been categorically observed that the villages Sabhapur
Delhi and Sabhapur Shahdra have been wrongly shown in Ward NO. 217 (Karawal Nagar); Secondly, repeated directions were given by the Secretary State Election Commission to the Returning Officer to comply with the notification dated 7.2.2007 showing the villages
Sabhapur Delhi and Sabhapur Shahdra in ward No. 272 (Sonia
Vihar) despite which the said directions were not complied with.
Therefore, under these circumstances, I hereby hold that the respondents who are all government employees and were on election duties at the relevant point of time, were under a legal obligation to ensure the strict compliance of the notification dated 7.2.2007, cannot be allowed to escape their liability by merely stating that there has been a misreading of the notification more so as specific objections to this extend were raised before the State Election Commission who also directed the rectification of the error which was not done.”
On the basis of the aforesaid findings, initiation of departmental enquiry against petitioners has been ordered, which is under challenge in this petition.
Learned counsel for petitioners has painstakingly pointed out that due diligence was exercised by petitioners in the performance of their
Crl. M.C. No.3955/2009 Page 3 election duty and there was no lapse on the part of petitioners in the conduct of election duty and merely because election petition has been dismissed, it does not justify initiation of departmental enquiry in this matter, particularly when objections and suggestion were invited from concerned persons by the competent authority and prompt cognizance was taken on the complaints received by Sh. V.K. Harit, who was entrusted with the task of conducting the elections in question.
Attention of this Court was drawn to the problem confronted by the
Delimitation Committee because of efflux of time and even spot inspection was conducted under the directions of the then State Election
Commissioner and Electoral Rolls were revised in the year 2007 for the purpose of conduct of MCD elections in question. During the course of hearing it was pointed out by petitioners’ counsel that during the entire period of election process, there was no access to computers and petitioners had been given printouts of the wards showing Enumeration
Blocks (EB) along with newly constituted wards numbers indicating the population extent and the area where it fell. It was specifically pointed out by petitioners’ counsel that against Village Sabha Pur Shahdra, print outs showed ‘0’ against ward No. 272. Lastly, it was urged by learned counsel for petitioners that in view of following categoric findings returned in the impugned order, initiation of departmental proceedings against petitioners is unwarranted, and the crucial findings are as under:-
‘The election petitioner has not been able to place on record any material to show the malafides so attributed to these respondents rather on the contrary this court has observed that
Crl. M.C. No.3955/2009 Page 4 the petitioners have failed to prove and substantiate the allegations of malafidies and the mistake appears to have been committed genuinely.”
Upon service, respondents were last represented before this Court on 25th February, 2011. Thereafter, this matter has been adjourned number of times but none has appeared on behalf of respondents.
While entertaining this petition, operation of the impugned order was stayed. Upon hearing petitioners’ counsel and on carefully going through the impugned order and the material on record, this Court finds that in the face of findings returned in the impugned order, as quoted in the preceding paragraph, no malafides has been attributed to petitioners.
Rather a categoric finding returned in the impugned order is that respondents herein have failed to prove and substantiate the allegations levelled against petitioners herein and the mistake appears to have been committed genuinely. Having found so, impugned order directing initiation of departmental proceedings against petitioners is rendered untenable and is hence set aside.
With aforesaid observations, this petition is disposed of.
(SUNIL GAUR)
JUDGE
FEBRUARY 12, 2013 rs
Petitioners herein are government servants, who were deputed on election duty in the MCD elections in NCT of Delhi held on 5th April, 2007.
Impugned order of 12th March, 2009 while dealing with an application under Section 340 of the Cr. P.C. filed by one candidate- Mr. Yogender Kumar of the aforesaid election in question has sought initiation of criminal prosecution against petitioners. However, as applicant - Mr. Yogender Kumar had not pressed the application for initiation of criminal proceedings against petitioners but had sought a definite finding from the court with regard to the conduct of petitioner- officials on account of which election of the ward in question has been set
2013:DHC:749 Crl. M.C. No.3955/2009 Page 2 aside. A prayer for initiation of departmental proceedings against petitioners was also sought by applicant- Mr. Yogender Kumar.
The relevant finding returned in the impugned order deserves to be taken note of and it is as under:-
‘It is evident from my findings in the main election petition that firstly it has been categorically observed that the villages Sabhapur
Delhi and Sabhapur Shahdra have been wrongly shown in Ward NO. 217 (Karawal Nagar); Secondly, repeated directions were given by the Secretary State Election Commission to the Returning Officer to comply with the notification dated 7.2.2007 showing the villages
Sabhapur Delhi and Sabhapur Shahdra in ward No. 272 (Sonia
Vihar) despite which the said directions were not complied with.
Therefore, under these circumstances, I hereby hold that the respondents who are all government employees and were on election duties at the relevant point of time, were under a legal obligation to ensure the strict compliance of the notification dated 7.2.2007, cannot be allowed to escape their liability by merely stating that there has been a misreading of the notification more so as specific objections to this extend were raised before the State Election Commission who also directed the rectification of the error which was not done.”
On the basis of the aforesaid findings, initiation of departmental enquiry against petitioners has been ordered, which is under challenge in this petition.
Learned counsel for petitioners has painstakingly pointed out that due diligence was exercised by petitioners in the performance of their
Crl. M.C. No.3955/2009 Page 3 election duty and there was no lapse on the part of petitioners in the conduct of election duty and merely because election petition has been dismissed, it does not justify initiation of departmental enquiry in this matter, particularly when objections and suggestion were invited from concerned persons by the competent authority and prompt cognizance was taken on the complaints received by Sh. V.K. Harit, who was entrusted with the task of conducting the elections in question.
Attention of this Court was drawn to the problem confronted by the
Delimitation Committee because of efflux of time and even spot inspection was conducted under the directions of the then State Election
Commissioner and Electoral Rolls were revised in the year 2007 for the purpose of conduct of MCD elections in question. During the course of hearing it was pointed out by petitioners’ counsel that during the entire period of election process, there was no access to computers and petitioners had been given printouts of the wards showing Enumeration
Blocks (EB) along with newly constituted wards numbers indicating the population extent and the area where it fell. It was specifically pointed out by petitioners’ counsel that against Village Sabha Pur Shahdra, print outs showed ‘0’ against ward No. 272. Lastly, it was urged by learned counsel for petitioners that in view of following categoric findings returned in the impugned order, initiation of departmental proceedings against petitioners is unwarranted, and the crucial findings are as under:-
‘The election petitioner has not been able to place on record any material to show the malafides so attributed to these respondents rather on the contrary this court has observed that
Crl. M.C. No.3955/2009 Page 4 the petitioners have failed to prove and substantiate the allegations of malafidies and the mistake appears to have been committed genuinely.”
Upon service, respondents were last represented before this Court on 25th February, 2011. Thereafter, this matter has been adjourned number of times but none has appeared on behalf of respondents.
While entertaining this petition, operation of the impugned order was stayed. Upon hearing petitioners’ counsel and on carefully going through the impugned order and the material on record, this Court finds that in the face of findings returned in the impugned order, as quoted in the preceding paragraph, no malafides has been attributed to petitioners.
Rather a categoric finding returned in the impugned order is that respondents herein have failed to prove and substantiate the allegations levelled against petitioners herein and the mistake appears to have been committed genuinely. Having found so, impugned order directing initiation of departmental proceedings against petitioners is rendered untenable and is hence set aside.
With aforesaid observations, this petition is disposed of.
(SUNIL GAUR)
JUDGE
FEBRUARY 12, 2013 rs
JUDGMENT