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Supreme Court infers Independent Candidate’s Right to Privacy; States Non-Disclosure of vehicles and dues do not amount to Corrupt Practice

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CASE TITLE – Karikho Kri v. Nuney Tayang and Anr.

CASE NUMBER – Civil Appeal No(s). 4615 of 2023 & 4616 of 2023

DATED ON – 09.04.2024

QUORUM – Justice Aniruddha Bose & Justice Sanjay Kumar

 

FACTS OF THE CASE

In the year 2019, Karikho Kri, an independent candidate, Dr. Mohesh Chai, candidate of the Bharatiya Janata Party, and Nuney Tayang, candidate of the Indian National Congress, contested the election to the Arunachal Pradesh Legislative Assembly from 44 Tezu (ST) Assembly Constituency. The election was held on 11.04.2019 and Karikho Kri emerged victorious with 7538 votes, while Dr. Mohesh Chai secured 7383 votes and Nuney Tayang secured 1088 votes. Nuney Tayang filed Election Petition No. 01(AP) of 2019 before the Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, seeking a declaration that the election of Karikho Kri was void on the grounds mentioned in Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’). He also sought a consequential declaration that he stood duly elected from the said constituency. By judgment and order dated 17.07.2023, a learned Judge of the Itanagar Bench of the High Court allowed the election petition in part, declaring the election of Karikho Kri void under Sections 100(1)(b), 100(1) (d)(i) and 100(1)(d)(iv) of the Act of 1951, but rejecting the prayer of Nuney Tayang to declare him duly elected, as he had not led any evidence to prove the allegations levelled by him against Dr. Mohesh Chai, the candidate with the second highest number of votes. Aggrieved thereby, Karikho Kri filed Civil Appeal No. 4615 of 2023 before the Supreme Court and Nuney Tayang filed Civil Appeal No. 4716 of 2023. These appeals were filed under Section 116A of the Act of 1951.

 

ISSUE

  1. Whether there has been a non-disclosure of ownership of Hero Honda CD Dawn Motorcycle owned by the returned candidate, Shri Karikho Kri bearing registration No. AR-11-2446; Kinetic Zing Scooty owned by the wife of the returned candidate, Smti. Bagilu Kri bearing registration No. AR-11-4474; Van, Maruti Omni Ambulance owned by the wife of the returned candidate, Smti. Bagilu Kri bearing registration No. AR-11A-3100 and TVS Star City Motorcycle owned by Shri Goshinso Kri, the son of the returned candidate Shri Karikho Kri bearing registration No. AR11-6581, as is required to be disclosed under Clause 7(vi) of the Conduct of Election Rules, 1961, rendering the nomination of the returned candidate invalid?
  2. Whether there has been a non-submission of no dues certificate with regard to Electricity Charges required to be submitted under Clause 8(ii)(b) of Form No. 26 of the Conduct of Election Rules, 1961, as the respondent No. 1 was in occupation of MLA Cottage No. 1 at ‘E’ Sector, Itanagar, from the year, 2009- 2014, while the respondent No. 1 was an MLA of Tezu (ST) Assembly Constituency during the year, 2009-2014?
  3. Whether the election of respondent No. 1 to the 44- Tezu(ST) Assembly Constituency is liable to be declared void under Section 100(1)(d)(i) of the Representation of the People Act, 1951?

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court observed that though it appears that the three vehicles in question still remained registered in the names of the wife and son of Karikho Kri, the question that arises is as to whether non-disclosure of such vehicles justified the attributing of a corrupt practice to Karikho Kri and the negating of his election on that ground. They stated insofar as the Scooty bearing No. AR-11/4474 is concerned, it stood in the name of Bagilu Kri but Md. Nizammudin (DW5) deposed that he had taken this vehicle as scrap and sold it as such to Promod Prasad (DW6). In turn, Promod Prasad (DW6) confirmed that he bought the Scooty as scrap from Md. Nizammudin (DW5). During their cross-examination, nothing was elicited from these witnesses to doubt their claims. However, letter dated 20.09.2019 addressed by the District Transport Officer, Lohit District, Tezu, to Bagilu Kri, manifests that the registration of the Scooty in her name stood cancelled only at that time. Though much was argued about this payment of taxes and the fact that the receipt was issued in the name of Bagilu Kri, The Supreme Court was not inclined to give any weightage to it, and the other two vehicles in question, had actual documents of conveyance and also proof of the requisite forms prescribed under the Act of 1988 being duly filled in and issued by Bagilu Kri and Goshinso Kri. Form No. 29, relating to notice of ownership transfer of a vehicle by the registered owner, viz., the transferor, was issued in respect of each of these vehicles but despite the same, the transferees did not do the needful to get their own names registered as the owners. But the Supreme Court held that Mere failure to get registered the name of the new owner of an already registered vehicle does not mean that the sale/gift transaction would stand invalidated and such a vehicle, despite being physically handed over to the new owner, cannot, by any stretch of imagination, be treated as still being in the possession and control of the former owner. Once it is accepted that the three vehicles in question were either gifted or sold before the filing of the nomination by Karikho Kri, the said vehicles cannot be considered to be still owned by Karikho Kri’s wife and son for purposes other than those covered by the Act of 1988. Therefore, non-disclosure of the three vehicles in question could not be held against Karikho Kri in the light of the aforestated analysis. In his Affidavit in Form No. 26, Karikho Kri was required to state as to whether he had been in occupation of accommodation provided by the Government at any time during the last 10 years before the date of notification of the current election and, if so, he was to furnish a declaration to the effect that there were no dues payable in respect of the said accommodation in relation to rent, electricity charges, water charges and telephone charges. Karikho Kri, however, failed to disclose the fact that he had been in occupation of government accommodation during his tenure as an MLA between 2009 and 2014. After Nuney Tayang raised an objection to his candidature on this ground, Karikho Kri filed the requisite ‘No Due Certificates’ of 2014. Having considered the issue, we are of the firm view that every defect in the nomination cannot straightaway be termed to be of such character as to render its acceptance improper and each case would have to turn on its own individual facts, insofar as that aspect is concerned. The Supreme Court viewed that it was not in dispute that there were no actual outstanding dues payable by Karikho Kri in relation to the government accommodation occupied by him earlier, and his failure in disclosing the fact that he had occupied such accommodation and in filing the ‘No Dues Certificate’ in that regard, with his nomination form, cannot be said to be a defect of any real import. More so, as he did submit the relevant documents of 2014 after Nuney Tayang raised an objection before the Returning Officer, and his explanation that he submitted such Certificates in the year 2014 when he stood for re-election as an MLA was in the eyes of the Court, logical and worthy of acceptance. The Supreme Court also inferred to his ‘right to privacy’ which would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character. On the above analysis, the Hon’ble Supreme Court held that the High Court was in error in concluding that sufficient grounds were made out under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951 to invalidate the election of Karikho Kri and, further, in holding that non-disclosure of the three vehicles, that still remained registered in the names of his wife and son as on the date of filing of his nomination, amounted to a ‘corrupt practice’ under Section 123(2) of the Act of 1951. In the result, Civil Appeal No. 4615 of 2023 filed by Karikho Kri was allowed, setting aside the Judgment and Order dated 17.07.2023 passed by the Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, and Civil Appeal No. 4716 of 2023, filed by Nuney Tayang, was dismissed.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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The Competent Authority cannot discharge the Employee on the Sole ground of Non-Disclosure of Information: Calcutta High Court

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Case title: Sankar Mandal Vs Union of India & Ors.

Case no.: WPA 3225 of 2016

Decision on: February 5th, 2024

Quoram: Justice Raja Basu Chowdhury

Facts of the case

The petitioner, Sankar Mondal had participated in a recruitment process for the post of Constable with reference to the Employment Notice issued by the Railway Protection Force. On successful completion of the same, he was called for training and was required to report to the SSB ATC Debandra nagar, Assam, along with other successful candidates. He was then posted at the 8th Battalion, Railway Protection Special Force CLW where he completed his further practical training. However, on 5th January, 2016, he was discharged from enlistment for the post of Constable, on the ground of false declaration or non-disclosure of a pending criminal case against him in the Attestation Form. The petitioner, through a writ petition challenged the order which forfeited his appointment.

Submissions on behalf of the Petitioners

The Counsel submitted that the respondents had mechanically dismissed the petitioner from service without considering the order of acquittal in the criminal case wherein he was a co-accused. Further, pointing out to the criminal proceedings against the petitioner, he submitted that the petitioner was only a co-accused in connection with a false complaint lodged against him relating to a dispute with his neighbor wherein the Judicial Magistrate held that the accused persons were not guilty of the charges levelled against them.

He contended that since the charges were trivial in nature, the discharge of service of the Petitioner on the basis of the same amounted to a violation of Articles 14 and 19(1)(g) of the Constitution of India. As such, he submitted that the charges of misrepresentation levelled against the petitioner, should be treated to be a mere omission and nothing more. The Counsel quoted various judgments to support his contentions and thus, prayed to allow the present petition and direct the respondents to reinstate the petitioner back in service by setting aside the order of discharge.

Submissions on behalf of the Respondents

The Counsel, on the contrary submitted that the Petitioner, on the date of filling up the Attestation Form was conscious and aware of a criminal proceeding was pending against him and as such he deliberately and willfully suppressed the fact. Further, he contended that the very act of suppression of criminal case pending against the Petitioner while filling up the Form amounted to furnishing false declaration and misrepresentation. He submitted that dishonesty should not be permitted to bear the fruit and benefit to those persons who have misrepresented themselves and relied on the case of Devendra Kumar v. State of Uttaranchal to support him contentions.

Further, by referring to Rule 52.2 and 67.2 of the Railway Protection Force Rules, 1987 and highlighting the power of the authorities to verify the petitioner’s candidature he submitted that there was no irregularity in carrying out the same. Furthermore, distinguishing the judgments relied on by opposite Counsel, he submitted that in none of the cases a person who is charged with a heinous or a serious offence has been let off. Therefore, the Counsel in the light of the judgment delivered in the case of Avtar Singh v. UOI & Ors submitted that the petitioner may also be remanded to the authorities for a decision in the matter.

Court’s Analysis and Judgement                                                    

The Court on brief perusal of the facts at hand and materials on record observed that an employer while passing an order of discharge from service for giving false information may take into consideration the criminal antecedents and has a right to consider continuance of such candidate. However, the employer cannot be compelled to appoint such a candidate with criminal antecedents. Further, Justice Raja Basu Chowdhury, quoted the precedence from various cases to adjudicate the matter.

Firstly, in the case of Pawan Kumar v. UOI & Anr, the Apex Court had categorically stated that mere suppression of material or false information in a given case does not authorize the employer to arbitrarily discharge/terminate the employee from service. Secondly, in the case of Mohammed Imran v. State of Maharashtra and Ors the Court reiterated the rulings of Avtar Singh case which held that that although empanelment creates no right to appointment, there cannot be any arbitrary denial after empanelment as well. Thirdly, relied on the case of Union of India & Ors v. Sri Sukdev Mondal which held that the Learned Single Judge had rightly directed reinstatement of the employee in service in the post of constable at the stage from where he was dismissed by his employer and had consequentially affirmed the said direction.

The Bench noted that the respondents had passed the order of discharge by overlooking the order of acquittal of the petitioner. It observed that apart from the failure of the petitioner to disclose the relevant information in the Attestation Form, there was no other conduct for which the Petitioner was discharged. Therefore, the court held that non-disclosure of information cannot form the sole ground for the competent authority to discharge the Petitioner by the stroke of a pen. The Court noted that the order of discharge cannot be sustained, although it is ultimately vested with the employer to decide the matter judiciously and thereby, directed the respondent no. 2, to review the aforesaid decision of discharge in the light of the observation made herein and to reinstate the petitioner.

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Judgement Reviewed by – Keerthi K

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