2006 PLP 104 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Petitioner being a candidate of reserved seat of "worker" filed his nomination papers before the Returning Officer which were rejected without there being any objection on the ground that he did not produce any proof of being a labourer/worker and his appeal against the order of Returning Officer was dismissed by the District Returning Officer.

2. Learned counsel for the petitioner in support of instant constitutional petition which challenged both the above-referred orders, relied on certificate of the employer of the petitioner and other documents, to contend that he is a worker within the meaning of section 2(xli) of the Punjab Local Government Ordinance, 2001 hence the impugned order may be declared illegal void and of no legal consequence.

3. I have minutely considered the arguments of the learned counsel for the petitioner and those of learned Additional Advocate-General. Rule 12 of the Punjab Local Government Elections Rules, 2005 deals with nomination papers for the election and provides that the Returning Officer shall, after announcement. of the election schedule, give a public notice, inviting nomination papers, specifying time before which and the place at which nomination papers shall be received by him. Rule 12(3)(iv) of these Rules deals with nomination papers by seat reserved for women, peasants and workers etc. which were to be filled in Form-III(D) appended therewith and were to be signed by both the proposer and seconder along with solemn affirmation made and signed by the candidate. This provision of Rule does not prefix any other condition for filing of nomination papers for the seat of worker.

4. Worker as per definition given in section 2(xli) of the Punjab Local Government Ordinance, 2001 means a person directly engaged in work, or is dependent on his personal labour for subsistence living and would include a worker as definite in Industrial Relations Ordinance, 2002. According to the definition of worker in the latter mentioned Ordinance, "worker" will be a person or group of persons who do not fall within the definition of employer or is employee in an establishment or industry, hire or reward either directly or through a contractor but does not include any person who is employee mainly in a managerial or administrative capacity.

5. Petitioner has produced certificate of his employer showing that he is working in his establishment for the subsistence where he is undertaking physical labour. The petitioner had also produced an affidavit along with his nomination papers as per requirement of the Rules, above discussed, whereafter no choice was left with the Returning Officer or District Returning Office to reject his nomination papers. There is no dispute about the legal position that the proceedings undertaken by the Returning Officer and District Returning Officer were summary in nature wherein detailed inquiry/recording of evidence was not permissible/needed to hold status of any worker. The election officials were to accept/reject nomination papers on the basis of material required to be furnished by rule 12 of the Rules (ibid) or produced by any objector to challenge the nomination.

6. There is another aspect of the matter that if a candidate misrepresents himself as a worker at the time of filing of the nomination papers, whereas he was not a worker, he will be considered to have been not qualified at the time of filing of the nomination papers and this pre-election disqualification can well be challenged before the Election Tribunal constituted to settle election disputes because such a ground is set forth to annul the result of election, in Rule 76 of the Punjab Local Government Elections Rules, 2005. Since election of the petitioner can ultimately be challenged on the basis of pre-election disqualification, if any, through an election petition where the parties will have a right to prove their respective stance through evidence, the impugned orders are not sustainable.

7. For the reasons noted above, both the Returning Officer and District Returning Officer incorrectly rejected the nomination papers of the petitioner in haphazard manner and thus, there orders/findings are not sustainable at law. This petition is consequently' accepted and order of rejection of nomination papers of the petitioner and those, whereby appeal of the petitioner was rejected, are declared to be void, illegal and non-existent with the result that nomination papers of the petitioner shall be deemed to have been accepted. The Returning Officer concerned is directed to include name of the petitioner in the list of candidates for the office of worker and to facilitate his participation in the forthcoming election for the reserved seat including allocation of election symbol etc. There will be no order as to costs. M.A.W./N-89/L Petition accepted.