http://judis.nic.in/supremecourt/imgst.aspx?filename=16601
The question, then, is whether the enquiry against the
first respondent can be proceeded with. It will be seen
that the enquiry was opened by the letter of the third
respondent dated 2nd June, 1994 whereby the first respondent
was asked to furnish evidence in support of his claim of
ordinary residence as stated in Form No.1. Form No. 1
relates to the declaration of his ordinary residence by a
person holding a declared office. The claim in Form No.1
was filed by the first respondent on 7th June, 1993 when he
was already a Cabinet Minister and thus the holder of a
declared office. His statement therein could, having regard
to the true interpretation of Section 20, sub-sections (4)
and (5), have been questioned by the third respondent only
if the third respondent was possessed of evidence to the
contrary and the third respondent had intimated to the first
respondent that fact and the substance of such evidence.
There is nothing to indicate that the third respondent had
any evidence to the contrary, and he certainly did not so
state in his letter dated 2nd June, 1994. In fact, he
called upon the first respondent to adduce his evidence.
The first respondents statement in Form No.1 could not,
therefore, have been questioned and the enquiry in this
behalf is bad in law. It was contended on behalf of the
appellant that the order of the Chief Election Commissioner
dated 1st March, 1994 and the notices subsequent thereto
showed that the enquiry also related to the statement of the
first respondent about the place of his ordinary residence
in Form No. 6, that is to say, when he was not the holder
of a declared office, and therefore, the enquiry should be
allowed to proceed. In the first place, the enquiry
commenced with the third respondents letter dated 2nd
February, 1994 whereby the first respondent was asked to
furnish evidence in support of your claim of ordinary
residence as stated in Form No. 1, that is to say, in
support of the statement made by the first respondent as the
holder of a `declared office. In the second place, and in
any event, the enquiry cannot be allowed to proceed having
regard to the order of the then Chief Election Commissioner
dated 1st March, 1994. The order referred to the findings
of investigations that had been carried on, of which the
first respondent had had no notice. It drew inferences
therefrom that were very adverse to the first respondent.
It then directed the third respondent to keep in view and
pay due regard to the facts brought out in the foregoing
paragraphs of this order while conducting the enquiry and
passing the final order thereon. Having regard to the fact
that the third respondent was a subordinate of the then
Chief Election Commissioner and, given the nature of the
inferences drawn by the latter without giving to the first
respondent the opportunity of a defence, there can be no
doubt that allowing the enquiry to proceed would be
detrimental to fair play and the interests of the first
respondent. The enquiry and all notices and orders
pertaining thereto must stand quashed.
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