K P DUBEY Vs. STATE OF M P

JUDGEMENT

(1.) With the consent of learned Counsel for the parties, the matter is heard finally and disposed of by this order.

(2.) Shri A.K. Pathak, learned Counsel for the Petitioner challenges the impugned order of suspension on the ground that he was engaged in Assembly election by order dated 27.10.2008 (Annexure P/8) and was appointed as Presiding Officer at Polling Centre No. 81 at Mohni Mal, Primary School, Mohni (Shahpura) of 103-Shahpura Vidhan Sabha. The Petitioner was directed to undergo training. After completion of training of first phase, second phase and third phase, he was appointed as Presiding Officer of Polling Booth No. 81 vide order dated 25.11.2008 (Annexure P/9) and was on election duty till the result was declared on 9.12.2008. During those period, he was on deputation to the Election Commission from the date of notification calling for assembly election and ending with the date of declaration of the result of such election and during those period his disciplinary authority was Election Commission and the said authority is empowered to take disciplinary action against the Petitioner during the period of election and on 29.11.2008 the Respondent No. 2 was not his disciplinary authority to take disciplinary action as the same was vested only with the Election Commission during the election. In support of the said contention, he drew my attention to the Division Bench decision in the case of Umesh Singh Yadav v. Collector/District Returning Officer, Balaghat and Ors., 1992 MPLJ 173. Thus the sole contention on behalf of the Petitioner is that the Respondent No. 2 has no authority to pass the order of suspension.

(3.) On the other hand, Shri Samdarshi Tiwari, learned Government Advocate contended that the suspension order was passed after assembly polling and at that time the Petitioner was not engaged in any election duty, the impugned order is legal and proper. He further submitted that the Petitioner was placed under suspension on account of dereliction from duties, several irregularities in supervising construction work being carried out under his supervision in contemplation with departmental enquiry and departmental enquiry was proposed against him and, therefore, his headquarter was changed to the office of Superintending Engineer, Narmada Valley Circle No. 10 Badwani vide impugned order dated 29.11.2008 and the mandate of Section 28A of the Act does not operate upon the disciplinary action being taken by the competent authority or upon changing of headquarter of delinquent employee against whom departmental enquiry is proposed. He lastly urged that the model code of conduct operates only upon transfer of all officers/officials connected with the conduct of elections and prayed for dismissal of the writ petition.