Jhar HC | ECI held empowered under Art. 324 and S. 28 of RP Act to transfer and divest ADG of Police of his duties till completion of elections

Jharkhand High Court: Ananda Sen, J. upheld an order passed by the Election Commission of India, dated 1-4-2019, whereby the petitioner — Additional Director General of police, Jharkhand — was forthwith divested from his present assignment and was directed to report to the Resident Commissioner, Jharkhand Bhawan, New Delhi.

A complaint was made against the petitioner that he indulged in electoral malpractices like influencing voters in the Rajya Sabha Elections of 2016. On receipt of the complaint, departmental proceedings were initiated against him and an FIR was registered for committing election offence, on the directions of the Election Commission of India. Meanwhile, elections to the 17th Lok Sabha were announced. A letter was received by the Election Commission with the information of pending inquiry against petitioner. On receiving the letter, the Commission issued an order divesting him of the present assignment and directing him to report to the Resident Commissioner. It was also directed that he shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the electoral process. Aggrieved, the petitioner challenged the aforesaid order.

The High Court noted that Article 324 of the Constitution provides for the establishment of Election Commission of India and vests in it the power of superintendence, direction and control of elections. In Court’s opinion, Article 324 empowers the Commission to issue any notification, circular or direction to conduct free, fair, smooth and uninfluential elections, where there is no special law, either found by the Parliament or by State Legislature to deal with the situation. The Court perused Section 28-A of the Representation of the People Act, 1951 which provides that all the officers which have been ‘designated’ under Part 4 of the Act, shall be deemed to be on deputation of the Election Commission and they will be under control, superintendence and discipline of the Commission.

Notably, the State of Jharkhand has issued a notification designating Additional Director Generals of Police as ‘designated officers’. Therefore, the present petitioner was also a designated officer for the purpose of Section 28-A. Thus, the Election Commission had got full control over the petitioner, a ‘designated officer’, and could give him directions and could also restrict and regulate him. It could decide the nature of the job to be performed by the petitioner and the manner of its performance. The Commission could also restrict or forbid him from performing any work, to achieve the ultimate goal of conducting free and fair elections.

The Court held that the order directing the petitioner to report to the Resident Commissioner in New Delhi was for all-purpose an order of ‘transfer’, which is an incident of service. It was noted that the Election Commission had framed a Model Code of Conduct which, among all other things, formulated the policy of transfer/posting of Government officials during the elections. However, observed the Court, that the MCC is a general provision which cannot be universally applied. It is not a closed document.

Orders of transferring the officers in unforeseen circumstances, will be exceptions to the MCC, and these will be orders passed in the exercise of plenary powers under Article 324 read with Section 28-A.

On the facts of the case, it was found that there was sufficient material before the Election Commission to pass the impugned order. The orders could have been passed by the Commission not only under the MCC but also under Article 324 read with Section 28-A. Thus, there was no illegality in the impugned order. As such, the petitioners challenge to the order divesting him of his duty and directing him to report to the Resident Commissioner was dismissed.

However, regarding the direction that the petitioner shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the election process, the court held that such a blanket order was unreasonable and could not be sustained in the eye of the law. It was directed that if the petitioner applies for grant of leave, the Election Commission should consider the same on its own merit. [Anurag Gupta v. Election Commission of India, 2019 SCC OnLine Jhar 474, dated 03-05-2019]

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