Holding

The appellant was not disqualified; the High Court’s writ of quo warranto was unwarranted and set aside.

Summary

Arun Singh was elected to the Nauhatta Panchayat Samiti but had earlier been dismissed from his post as a Dafadar. The State Election Commission held that his dismissal was not for misconduct and therefore he was not disqualified under Section 139(1)(f) of the Bihar Panchayat Raj Act, 1993. The Patna High Court, however, issued a writ of quo warranto, treating his absence from duty as misconduct and declared his election void. On appeal, the Supreme Court examined the statutory disqualification clause and held that it applies only when a person is dismissed for misconduct and is declared disqualified for public service, which was not established in this case. The Court also emphasized that a writ of quo warranto is discretionary and requires a clear finding of statutory violation. Consequently, the High Court’s order was set aside and the appeal was allowed, confirming that the appellant was not disqualified.

Issues considered

Whether dismissal from service for alleged absence from duty amounts to misconduct under Section 139(1)(f) of the Bihar Panchayat Raj Act, 1993.
Whether the High Court could validly issue a writ of quo warranto without a clear factual finding of misconduct and disqualification.
Whether the determination of the State Election Commission on disqualification is conclusive for the purpose of judicial review.

Legislation cited

Bihar Panchayat Raj Act, 1993s. 139(1)(f)

Subjects

disqualificationelection lawPanchayat Raj Actquo warrantomisconductState Election Commissionjudicial review

Judgment

A ARUN SINGH @ ARUN KUMAR SINGH
v.
STATE OF BIHAR AND ORS.

MARCH 7, 2006

B [S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.]

Election Laws:

Bihar Panchayat Raj Act, 1993-Section 139(/)(j)!Bihar Panchayat
C Election Rules-Rule 122-Election ofmember ofPanchyat Samiti-Questioned
on the ground that elected member was disqualified under Section I 39(/)(j)
due to his dismissal from service-Election Commission holding that it was
not a case of disqualification under the provision as dismissal was not on the
ground of misconduct but absence from duty-Writ Petition against order of
D Election Commission-High Court holding the appointment as Member of
Samiti as illegal opining that absence from duty would constitute a misconduct
and issued Writ of Quo Warranto-On appeal, held: Member was not
disqualified under the provision-The provision would be attracted only when
requirements laid down therein are fulfilled--No finding of fact was arrived
at by any authority as to commission of misconduct-There was nothing to
E show that the dismissal order fi1lfilled the condition precedent/or invoking the
provision.

WRITS:

Writ of Quo Warranto--Conditions for issuing-Held: Issuance of the
F writ is discretionary--lt should be issued only on a clear finding that the
+
appointment to a public office was contrary to the statute.

Appellant was elected as a member of Panchayat Samiti after having
received election certificate by the competent authority. Respondent No.
G 6 filed an election petition praying for setting aside the election of the
appellant on the ground that the appellant was a Dafadar and he was
discharged from the service, for his illegal and irregular conduct. The
election petition is still pending. State Election Commission at the instance
of respondent No. 6 held that the appellant was not disqualified as the
order of dismissal from service passed by District Magistrate did not
H 1058
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ARUN SINGH @ARUN KUMAR SINGH v. ST ATE OF BIHAR 1059
indicate that the same was for commission of misconduct. According to A
~ order of District Magistrate dismissal was for his appointment being illegal
and superintendent of Police had indicated that dismissal was for not doing
his work properly.

Respondent No. 6 filed a Writ Petition questioning the order passed
by Election Commission. High Court held that the charge of absence from B
duty by the appellant, having been proved, the same would constitute a
misconduct. It issued writ of Quo Warranto holding that appointment of
~
appellant as a member of Samiti was not legal. Hence the present appeal.

Allowing the appeal, the Court
c
HELD: 1.1. The disqualification set down in Section 139(1 )(f) of
Bihar Panchayat Raj Act, 1993 would be attracted when the requirements
laid down therein are fulfilled, which Jould mean that the elected
candidate should have been dismissed from ~ervice of the Central or State
or other local authority (i) for commission of misconduct; and (ii) he has
D
been declared disqualified for employment in public service. (1063-B-CI

1.2. No finding of fact was arrived at either by the Superintendent
of Police or the District Magistrate or for that matter, by the State Election
Commissioner that prior to the issuance of order of dismissal a disciplinary
proceeding was initiated against the appellant and he was found to have E
committed any misconduct within the meaning of the provisions of the
Bihar Civil Services (Classification Appeal) Rules or otherwise.
(1063-D-EJ

1.3. The order imposing penalty was not before the High Court.
There was nothing to show that the said order fulfilled the conditions F
precedent for invoking the provisions of Section 139(l)(t) of the Act. The
High Court, therefore, completely misdirected itself in holding that as the
appellant had absented himself from duty the same constituted misconduct
and thus his election was void. The High Court did not go into the
correctness or otherwise of the order of the State Election Commission.

.. -~
On what premise the power of judicial review was exercised by the High
Court is not indicated. No cogent or sufficient reasons have been given
by the High Court for setting aside the well considered order of the State
- Election Commission. [1063-F-G)
G

2. Issuance of a writ of quo warranto is discretionary and such a H
1060 SUPREME COURT REPORTS [2006] 2 S.C.R.

A writ should be issued only upon a clear finding that the appointment to a
public office was contrary to the statute. For the said purpose it was
obligatory on the part of the High Court to arrive at a finding that the
disqualifying clause contained in Section 139(1) {I) was squarely attracted
in the case of the appellant, in the light of the order of the State Election
B Commission. Evidently, the appellant was not disqualified.
(1063-H; 1064-Af
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1551 of2006.
From the Judgment and Final Order dated 4.10.2004 of the Patna High ~
Court in C.W.J.C. No. 3205/2003.
c Neeraj Shekhar, S.S. Bandhyopadhyay, Ambhoj Kumar Sinha and Irshad
Ahmad for the Appellant.
B.B. Singh, Akhilesh Kumar Pandey and Pavan Kumar for the
Respondents.
D The Judgment of the Court was delivered by
S.8. SINHA, J. Leave granted.
This appeal is directed against the judgment and order dated 4. 10.2004
passed by a Division Bench of the Patna High Court in CWJC No. 3205/
E 2003, whereby and whereunder the writ petition filed by the 6th respondent
herein, questioning an order dated 29.1.2003 passed by the State Election
Commission, was allowed. The basic facts are not in dispute. The appellant
was elected as a member of Nauhatta Panchayat Samiti from Ward No. 17,
in that Panchayat in an unreserved seat in an election held on 11.4.200 I. He
was granted an election certificate by the competent authority on 14.5.200 I.
F It is not in dispute that respondent No. 6 herein has filed an election petition
in the Court of the Subordinate Judge, Saharsa, as Election Petition No. 61
200 I, inter alia, praying for setting aside the declaration of the appellant
herein as a member of Panchayat Samiti and for a declaration of himself as
elected instead.
G In the said election petition it was categorically stated that the 0. P. No.

-
2 was a Dafadar and he was discharged from his post for his illegal and
irregular conduct and against the order of discharge, O.P. No. 2 filed a writ
petition in the High Court of Patna and the same was dismissed. Indisputably
the said election petition is still pending.
H The Legislature of the State ofBihar enacted Bihar Panchayat Raj Act,
"""'
.

ARUN SINGH@ARUN KUMARSINGHv. STATEOFBIHAR [SINHA, J.) 1061

1993. Section 139(1) (f) of the said Act reads thus: A
"Disqualifications- (I) Notwithstanding anything contained in this
Act, a person shall be disqualified for election or after election for
holding the post as Mukhia, member of the Grampanchayat, Sarpanch,
Panch of the Gram Katchahri, member of the Panchayat Samiti and
member of Zila Parishad, if such person: B
(a) ························
(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;" C
The Bihar Panchayat Election Rules were framed thereunder. Rule 122
of the said Rules was amended on 28.2.2002, whereby and whereunder the
State Election Commission was empowered to determine the question as to
whether a member of the Panchayat, at any level, had disqualified himself on
any ground enumerated in various sub-clauses therein. Such a power could D
be exercised by the State Election Commission either suo muto or on the
relevant facts being brought to its notice.

Rule 122 of the said Rules reads as under:

"Rule 122: Under provisions of section 139(2) of the Bihar Panchayat E
Raj Act; 1993, the State Election Commission shall be the CO!llpetent
authority to decide whether a member of a Panchayat at any level has
become subject to any of the disqualifications mentioned in section
139(1) of the Act. The matter of disqualification may be brought to
the Commission in the form of a complaint, application or information
by any person or authority. The State Election Commission may also F
,take suo motu cognizance of such matters and decide such matters
expeditiously after allowing sufficient opportunity to the affected
parties of being heard."

It is furthermore not in dispute that the State Election Commission at
the instance of respondent No. 6 considered the question as to whether the G
appellant herein stood disqualified having regard to the fact that the appellant
was dismissed from service. It is not in dispute that the appellant was appointed
as a Dafadar in a temporary capacity. He was allegedly dismissed from
service by the Superintendent of Police, Saharsa, by an order dated 9.8.1980.
H
1062 SUPREME COURT REPORTS [2006] 2 S.C.R.

A Respondent No. 6, despite the fact that his election petition was pending
in which the issue in question was whether the appellant herein stood
disqualified by reason of the order of dismissal dated 9.8.1990, filed an
application before the State Election Commission purported to be in terms of
Rule 122 of the Rules. By an order dated 29.1.2003 the said application was
dismissed. The State Election Commission had noticed that the order of
B dismissal passed as against the appellant herein did not indicate that the same
was for commission of a misconduct. The District Magistrate appears to have
taken a view that as his appointment was illegal and as the likely appointment
of his successor was illegal, the order of dismissal/discharge was justified in
law. It was further noticed that the writ petition filed by the appellant herein
....
C questioning the said order of the District Magistrate, as CWJC No. I0394/
1996 was dismissed by the Patna High Court by order dated 27.2.1997.

In his order the State Election Commissioner held:

"Report of the SP, Saharsa dated 24.01.2003 and G form No. 3/79
D of Nauhatta Police Station have been received. A perusal of these
documents indicates that the OP has been removed from service for
not doing his duty properly. The Deputy Superintendent vide his
endorsement dated 24.01.1980 on G Form No. 3/79 addressed to the
SP has remarked that the OP may be discharged. Thus what appears
from the relevant documents in that the OP who was appointed as
E Dafadar for a temporary period was to be discharged from the job for
not doing his duty properly. The documents do not indicate any act
of misconduct on the part of the OP and, therefore, the provisions of
clause (t) of sub-section (I) of Section 139 of the Act is not attracted
in this case."
F Respondent No. 6 filed a writ petition questioning the validity of the
said order. The said writ petitioner was heard together with other writ petitions
wherein the vires of Section 139(1) of the Act and Rule 122 were in question.
A Division Bench of the High Court, upholding the validity of the said
provisions, opined that even though the writ applications filed against the
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G orders of the State Election Commissioner were maintainable, such elections
which were vitiated by fraud cannot be allowed to stand. The High Court
t
thereafter considered in brief the merit of each of the writ petitions filed
before it. In regard to the writ petitions filed by respondent No. 6, it was
opined that the Election Commission had taken an erroneous view in its order
in so far as it failed to take into consideration that as the appellant herein had
H absented himself from duty and the said allegation had been proved, the same
ARUN SINGH @ARUN KUMAR SINGH v. STATE OF BIHAR [SINHA, J.] J063

would constitute a misconduct. On that premise, a writ of quo warranto was A

' directed to be issued and a further declaration was made that the appointment
of the appellant as·a member of the Panchayat Samiti was not legal and valid
and he cannot cclntinue to function as such. We cannot agree with the findings
of the H,igh Court.

Section 139(1) (f) of the Act which provides for a disqualification, B
must be construed strictly. The disqualification set down in Section 139(1) (f)
would be attracted when the requirements laid down therein are fulfilled,
-.. which would mean that the elected candidate should have been dismissed
from service of the Central or State or other local authority (i) for commission
of misconduct; and (ii) he has been declared disqualified for employment in
public service.
c
The State Election Commissioner in his order noticed that the order of
dismissal passed as against the appellant herein did not indicate that the same
was for any misconduct committed by him, the order of the District Magistrate .I
revealed that his services were dispensed with only because his appointment D
was found to be illegal whereas the order passed by the Superintendent of
+ Police indicated that the appellant had been dismissed/removed from service
for not doing his work properly. No finding of fact was arrived at either by
the Superintendent of Police or the District Magistrate or for that matter, by
the State Election Commissioner that prior to the issuance of the said letter,
a disciplinary proceeding was initiated against the appellant and he was found E
to have committed any misconduct within the meaning of the provisions of
the Bihar Civil Services Classification Appeal Rules or otherwise.

The order imposing penalty was not before the High Court. There was
nothing to show that the said order fulfilled the conditions precedent for
F
invoking the provisions of Section 139(1) (f) of the Act. The High Court
therefore, in our opinion, completely misdirected itself in holding that as the
appellant had absented himself from duty the same constituted misconduct
and thus his election was void. The High Court did not go into the correctness
or otherwise of the order of the State Election Commission. On what premise
the power of judicial review was exercised by the High Court is not indicated. G
No cogent or sufficient reasons have been given by the High Court for setting
aside the well considered order of the State Election Commission. Furthermore,
issuance of a writ of quo warranto is discretionary and such a writ should be
issued only upon a clear finding that the appointment to a public office was
contrary to the statute. For the said purpose it was obligatory on the part of
H
1064 SUPREME COURT REPORTS (2006] 2 S.C.R.

A the High Court to arrive at a finding that the disqualifying clause contained 1
in section 139(1) (f) was squarely attracted in the case of the appellant, in the
light of the order of the State Election Commission. Evidently, the appellant
was not disqualified.

For the foregoing reasons the impugned judgment cannot be sustained
B and it is accordingly set aside. The appeal is allowed. In the facts and
circumstances of the case, respondent No. 6 shall bear the costs of this
appeal. Counsel fee is assessed as Rs. 5,000.

K.K.T. Appeal allowed.

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