Cooperative Bank Employees Not Covered Under Definition Of “Public Servant” As Per Section 21 Of IPC In Context Of Election Duties: Calcutta High Court

Background Facts

The Petitioners were employees association of the Malda District Central Cooperative Bank and the Mugberia Central Cooperative Bank. The petitioners were appointed as Polling Officers to do election duty for the parliamentary election under Section 26 of the Representation of the People Act, 1951 (Act). Aggrieved by the same, the petitioners filed the writ petitions challenging the appointment.

The petitioners contended that the cooperative banks, including the ones their members worked for, were not funded or controlled by the government. Therefore, they contended that their employees should not fall under the purview of Section 159(2) of the Act, which outlined the types of organizations whose employees could be requisitioned for election duties. The petitioners asserted that the appointment was made without prior requisition under Section 159 of the Act, which was a prerequisite for such appointments, and its absence rendered the appointments invalid.

The petitioners further argued that the definition of “public servant” under Section 21 of the IPC could not be extended to cover the cooperative bank employees in the context of election duties. The petitioners contended that Article 324 does not override the Section 159 of the Act, which specifically govern the appointment of election staff.

On the other hand, it was contended by the Election Commission of India (Respondents) that Article 324 of the Constitution granted unrestricted power to conduct elections and requisition staff from any institution or organization, regardless of the provisions of the Act. The respondents argued that the definition of “public servant” in Section 21 of the IPC included employees of any institution, which encompassed cooperative bank employees performing election duties. The Respondents further contended that while the Act specified the procedure for requisitioning staff, Article 324 granted them broader powers to ensure the smooth conduct of elections.

Findings of the Court

The court observed that cooperative banks, not being funded or controlled by the government, do not come under the categories specified in Section 159(2) of the Act for requisitioning of staff for election duties. The court relied on the case of Dalco Engineering Private Limited vs. Satish Prabhakar Padhye and others wherein the Supreme Court held that there is a distinction between a corporation established by or under an Act and a body incorporated under an Act.

The court found that the appointment of cooperative bank employees as Polling Officers was made without prior requisition under Section 159 of the Act. It emphasized that such requisition is required for such appointments, and its absence made the appointments invalid.

The court further observed that the definition of “public servant” under Section 21 of the IPC cannot be extended to cover cooperative bank employees in the context of election duties. The court relied on the case of N.K. Sharma Vs. Abhimanyu wherein the Supreme Court while considering Section 21 of the IPC, sanctioned distinction between a corporation established by or under an Act and a body incorporated under an Act.

The court held that while Article 324 grants broad powers to the Election Commission but these powers must be exercised in conjunction with the Section 159 of the Act. The court analysed the nature of cooperative banks under the West Bengal Cooperative Societies Act, 2006 and found that cooperative banks registered under the Act were not established by or under a Central, Provincial, or State Act, as required by Section 159(2) of the Act. The court ruled in favour of the petitioners, setting aside the requisition and appointment of cooperative bank employees as Polling Officers for parliamentary elections.

With the aforesaid observations, the Writ Petitions were allowed.

Case No. : WPA No.10325 of 2024 and WPA No. 10270 of 2024

Case Name : Malda District Central Cooperative Bank Employees Association and others vs. The Election Commission of India and others

Counsel for the Petitioners : Mr. Abhimanyu Banerjee, Mr. Kamal Krishna Pathak

Counsel for the Respondents : Mr. Amarendra Chakraborty, Mr. Debashis Sarkar, Mr. Joydip Kar