Kerala High Court
K.S.Muraleedhara Panicker vs The President Nattakam Service on 3 August, 2005
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
party, Kerala Congress (M)?
ii. Whether the finding to the contrary, in the
impugned Ext.P3 order, is liable to be disturbed in
exercise of jurisdiction under article 226 of the
Constitution?
15. In paragraph 19 of the impugned Ext.P3 order, the
Commission found that from Exts.P2, P3 and P4
acknowledgement cards signed by the alleged defectors it
is clear that they had received Ext.P1 notice was issued
by P.W.3 Mr.P.V.Joseph, the Mandalam President of Kerala
Congress(M), intimating that the meeting of the members
belonging to Kerala Congress(M) will be held on 9-9-2003
at 10 a.m. It was further held that it is clear from the
evidence that the meeting was convened on 9-9-2003 at 10
a.m. to elect the parliamentary party leader and the
whip. Therefore, the fact that the alleged defectors had
notice of the said meeting for the purpose of electing
also the whip and that the meeting was held, have been
found by the Commission. The convening of the said
meeting was by an authority in the party, namely, the
Mandalam President of the party.
16. P.W.1, P.W.2 and P.W.3 spoke regarding the
conduct of the meeting and the fact that four out of
seven members participated in the meeting and elected
P.W.2 as a whip. The alleged defectors admittedly did
not participate in the said meeting in spite of notice.
There is no contra evidence on record regarding what
transpired in the said meeting. However, in paragraph 20
of the impugned Ext.P3 order, it is stated that the
Commission disbelieved Ext.P5 minutes of the said meeting
and has refused to act upon it by stating that the
writing of the minutes in loose sheets is an aspect which
improbabilises the case that P.W.2 was elected as the
whip. In paragraph 21 of the impugned Ext.P3 order, the
Commission adverted to Rule 4(2) of the Kerala Local
Authorities (Disqualification of Defected Members) Rules,
2000, hereinafter called "the Disqualification Rules" and
noticed that the purpose of the said rule is to exclude
any controversy regarding the election of the whip as
provided in the Act. However, the intimation given to
the Secretary on 12-9-2003 regarding the election of the
whip on 9-9-2003 was treated by the Commission as not
done immediately as provided for in Rule 4(2) of the
Disqualification Rules. Though the Commission proceeded
to state that the registration of the whip with the
Secretary of the Panchayat gives probative value to the
election and though the Secretary of the Panchayat had
given evidence as P.W.8 regarding the receipt of the
intimation of the election of P.W.2 as the whip, the
Commission disbelieved the version of P.W.8 that the
intimation was entered in the distribution register of
the Panchayat, for the sole reason that the petitioner
had not taken steps to have the distribution register
produced before the Commission to show that the receipt
of the intimation was properly entered in the register on
12-9-2003 itself.
17. Thus, it can be easily noticed from a reading of
paragraphs 19, 20 and 21 of the impugned Ext.P3 order
that while the convening of the meeting on 9-9-2003 to
elect the whip with notice to be alleged defectors is
found to have been proved, the election of P.W.2 as the
whip in that meeting is treated as not proved only on
account of the fact that the minutes were maintained in
loose sheets and that the distribution register of the
Panchayat was not made available before the Commission to
prove the receipt of the intimation of the election of
the whip and because the election of the whip on 9-9-2003
was intimated to the Panchayat only on 12-9-2003.
18. Rule 4(2) of the Disqualification Rules reads as
follows:
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"4. The manner in which a political partyi or@@
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coalition may give direction to its members.-@@
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(2) The political party and the coalition@@
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having representation in a local authority shall,
immediately when the member who shall issue
direction under sub-rule(1) is elected, inform
the fact to the Secretary."
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19. As rightly viewed by the Commission, the
intimation of the election of the whip to the Secretary
of the Panchayat gives probative value to the election.
This is so because, the application to the Commission for
a declaration as to disqualification of a member on
ground referred to in Section 3(1)(a) need not
necessarily be by the person who is elected as the whip
and who had issued the directions, which are alleged to
be violated. The intimation of the election of the whip
has to be intimated to the Secretary, the purpose of such
intimation being, to ensure that the Secretary has with
him such intimation before the elected whip issues any
directions to the members of the Panchayat, who are the
members of that political party. In this context, the
Secretary of the Panchayat takes the role of an umpire.
He keeps the intimation of the election of the whip given
to him under Rule 4(2) of the Disqualification Rules and
the fact that it has been so given to him, has to be
evidenced by the receipt issued by him. In the instant
case, the intimation of the election of P.W.2 as the whip
is given on 12-9-2003 and the issue in hand is as to
whether the alleged defectors had violated the directions
issued by P.W.2 on 26-11-2003 regarding the voting in the
no-confidence motion slated to be held on 5-12-2003.
20. The use of the word "immediately" in Rule 4(2) of
the Disqualification Rules has to be understood in the
context in which it is placed and the objects sought to
be achieved by such placement of the said word. The word
"immediately", going by the Chambers's Twentieth Century
Dictionary, is explained with reference to the word
"immediate" which means "with nothing between: not
acting by second causes: direct: present: without
delay". The term "immediately" has been explained in the
Law Lexicon by P.Ramanatha Aiyer, RP 2004, showing the
different shades in which the said word is used in the
context of law and the variety of situations enumerated
therein would lead one to the conclusion that the word
has to be construed, having regard to the situation in
hand. The term "immediately" fell for consideration of
the Apex Court, though in a different context, in
Tulsiram's case, (1984) 4 SCC 487 wherein, in construing@@
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the said term, it was noticed as follows:
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"It is not to be understood to mean the very next@@
i
instant; the very next hour, that very day or the
very next day. It must be construed in its
setting. It is no use turning to dictionaries.
Dictionaries give variegated meanings to words.
What meaning is to be adopted depends on the
context."
.SP 2
By stating so, the Apex Court construed Rule 9-A of the
Prevention of Food Adulteration Rules, 1955 to hold that
in so far as that rule is concerned, the word
"immediately" is used to convey a sense of continuity
rather than a sense of urgency. Now, what is the object
sought to be achieved by the introduction of the word
"immediately" in Rule 4(2) of the Disqualification Rules?
As already noticed, the Secretary has to be intimated
regarding the election of the whip. This is to ensure
that the authority of the elected whip to issue
directions to the members of the political party in the
Panchayat cannot be a matter in dispute. So much so,
whether the election of the whip has been intimated
immediately to the Secretary of the Panchayat, or not,
depends upon the facts of each case. In the instant
case, on 12-9-2003, i.e., on the third day of the meeting
on 9-9-2003, the Secretary of the Panchayat was intimated
of the election of P.W.2 as the whip on 9-9-2003. It is
only on 26-11-2003, that the direction in question was
issued by P.W.2, as the whip, as regards the voting in
the no-confidence motion slated on 5-12-2003. The delay
of two days in intimating the election of the whip, to
the Secretary of the Panchayat cannot be treated as fatal
in this case. More so, when the receipt of such
information by the Secretary of the Panchayat has been
proved by the petitioner by producing the receipt issued
by the Secretary of the Panchayat and by the production
of the intimation by the Secretary, from proper custody,
corroborated by his testimony as P.W.8.
21. The Commission has disbelieved the version of
P.W.8 regarding the receipt of the intimation regarding
the election of P.W.2 as the whip only on the ground that
the petitioner has not obtained the production of the
distribution register of the Panchayat. Firstly, by the
production of the receipt issued by the Secretary of the
Panchayat, the authenticity of which is not in dispute,
the delivery of the communication regarding the election
of P.W.2 as the whip, to the Secretary on 12-9-2003
stands proved. As already noticed, this is corroborated
by the version of P.W.8, the Secretary of the Panchayat.
Going by law, an adverse inference cannot be drawn
against the petitioner for the non-availability of the
distribution register of the Panchayat, before the
Commission. This is on account of two reasons. Firstly,
adverse inference can be drawn only against he who had
suppressed the materials. The distribution register is
not one belonging to the petitioner. Secondly, the
Commission had not asked for the production of the said
distribution register. Reference in this context need to
be made to the decisions of the Apex Court in Ramrati@@
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Kuer v. Dwarika Prasad, AIR 1967 SC 1134 and Air India@@
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Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC@@
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617.@@
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22. As regards the view taken by the Commission on
the maintenance of minutes by the political party to
which the parties to the dispute belonged, there is no
statutory rule providing for maintenance of minutes in
book form. The production of minutes before the
Secretary of the Panchayat is not necessary at all, going
by the provisions in the Disqualification Rules. All
that is required is that the election of the whip shall
be intimated. The broad probabilities on which the
Commission has disbelieved the minutes are unfortunate.
I say so because, it is easy to assume that if it were in
a book form, the minutes could have been torn and that
the maintenance of minutes in a book form would add
credibility to it. It has to be at once noticed that it
is nobody's case that the minutes were torn. The object
sought to be achieved by the legislation of which we are
now concerned, requires the decision to rest primarily on
the intimation given to the Secretary of the Panchayat
regarding the election of the whip.
23. For the foregoing reasons, the conclusions in
Ext.P3 resulting in the dismissal of the petitions filed
by the writ petitioner before the Commission are such
that they are wholly unavailable on the materials on
record and hence, perverse. The same are liable to be
interfered with in writ jurisdiction. Accordingly, the
same are set aside.
24. This immediately takes one to the question as to
whether, in the exercise of the writ jurisdiction, the
disqualification of the alleged defectors could be
declared by this Court, or should there be, necessary, a
remit to the Commission, for re-consideration. The
reasons given in the impugned order having been found to
be unsustainable and the materials on record pointing
only at the conduct of the alleged defectors as alleged
by the petitioner, there is no reason why such a
declaration cannot be made. This is because, as already
noticed, the Commission had held that a meeting of the
members belonging to the party was convened on 9-9-2003
with notice to the alleged defectors and that the
intimation regarding the election of P.W.2 as the whip
was given to the Secretary of the Panchayat on 12-9-2003.
The Commission further found that P.W.2 had issued
directions to the alleged defectors regarding the voting
at the motion of the no-confidence against the Vice
President of the Panchayat and that the alleged defectors
had voted contrary to the directions so issued.
Therefore, the only question that remained is as to
whether the election of P.W.2 as the whip was proved. On
the basis of the aforesaid discussions, the only
conclusion that can be arrived at is that the election of
P.W.2 as the whip in the meeting on 9-9-2003 is proved by
the materials on record, without any contra evidence and
the same has been duly intimated on 12-9-2003 to the
Secretary of the Panchayat. As noticed by the
Commission, such intimation gives probative value to the
election of P.W.2 as the whip. So much so, no further
materials are required to be brought on record and the
decision-making on the materials on record does not call
for any further examination of the facts and the only
conclusion that is available on the materials on record
is that the alleged defectors had committed defection and
are, therefore, disqualified in terms of Section 3(1)(a)
of the Act.
In the result, these writ petitions are allowed
and the impugned Ext.P3 is set aside and it is declared
that the alleged defectors, namely, the persons arrayed
as second respondent respectively in O.P.Nos.255, 256 and
257 of 2003 on the file of the Election Commission are
disqualified in terms of Section 3 of Act 11 of 1999.
.JN
Sha/ THOTTATHIL B. RADHAKRISHNAN, JUDGE.@@
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THOTTATHIL B. RADHAKRISHNAN, J.@@
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C.A.Nos.32 & 233 of 2005 in
C.C.No.133/2003 in C.P.16/2000
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O R D E R@@
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5th July, 2005.
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? IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 28912 of 2003
1. K.S.MURALEEDHARA PANICKER,
... Petitioner
Vs
1. THE PRESIDENT NATTAKAM SERVICE
... Respondent
For Petitioner :SRI.M.J.THOMAS
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated : 03/08/2005
O R D E R
.PL 55 .TM 2 .BM 2 THOTTATHIL B. RADHAKRISHNAN, J.@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
-----------------------------------------------------@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA W.P.(C).No.28912 of 2003@@ jAAAAAAAAAAAAAAAAAAAAAAAA
-----------------------------------------------------@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Dated this the 3rd day of August, 2005@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA JUDGMENT@@ jEEEEEEEE .SP 2 ((HDR 0 WPC28912/2003 -: # :-
)) .HE 1 This writ petition is filed by an employee of the first respondent Society challenging Ext.P6 award of the Labour Court, Ernakulam on I.D.64/1990. The said award was published as per G.O.(Rt)506/95/LBR dated 1-3-1995. The writ petition is filed on 3-9-2003.
2. The learned counsel for the contesting first respondent points out that there had been inordinate delay in challenging Ext.P6 and that the same is not one to be excused and that the writ petition ought to fail on that ground. The learned counsel for the petitioner urges that there are valid reasons for the delay, including the pendency of certain criminal cases and certain other matters. Whatever that be, this matter had been pending before this Court for nearly two years now and I do not find that this writ petition is to be dismissed on any ground of delay.
3. The petitioner who, going by his own case as reflected by paragraph 2 of the impugned Ext.P6 award, was the Chief Accountant of the first respondent Corporative Society was issued a memo of charges and following a domestic enquiry, he was dismissed from service. This led to the impugned Ext.P6 award by the Labour Court.
4. By its preliminary order, the Labour Court upheld the domestic enquiry.
5. However, as regards the proportionality of the punishment, after an assessment of the entire fact situations and the findings, the Labour Court ordered that the punishment of dismissal be converted into one of discharge.
6. The challenge of the writ petitioner as urged before me, is confined to the contention that having regard to the materials on record, he was entitled to be re-instated and that even the punishment of discharge is grossly excessive and hence disproportionate to the allegations levelled and found against him.
7. The consideration of this issue by the Labour Court is reflected by paragraph 5 in Ext.P6. The Labour Court found that it is established in the domestic enquiry that the delinquent was guilty of the offence of wilful destruction of the documents maintained in the management Society. The Labour Court found that the delinquent was involved in the misappropriation of amounts committed by the previous Secretary, Assistant Secretary and Cashier of the management Society, though the Labour Court stated that it is true that there is no acceptable evidence that the delinquent has acted for unlawful gain in connection with the misappropriation of the funds of the management. The Labour Court, however, held that it is well established that the delinquent had wilfully neglected to inform the management regarding the misappropriations which were going on in the management Society. The delinquent was found guilty of having, some way or other, assisted the senior officers in committing misappropriation of funds by falsification of documents. The Labour Court came to the definite conclusion that the proved misconduct would show that the delinquent is not fit to be employed in the management Society and that the management is fully justified in their stand that they have lost confidence in the workman concerned. Accordingly, the Labour Court held that it is not fair or proper to direct the management to reinstate the workman in service.
8. After stating as aforesaid, the Labour Court looked at the issue at another angle and said that another matter established, to be noted, is certain previous conduct reflected by the service records. The Labour Court went on to hold that it is the admitted situation that the writ petitioner was punished on earlier occasions. The learned counsel for the petitioner urged before me that this was an irrational and improper approach by the Labour Court and that, therefore, the conclusions in the impugned award are perverse. It is urged that materials that there was no material available before the Labour Court regarding any previous punishment of the writ petitioner and that therefore extraneous materials were considered by the Labour Court in moulding the relief.
8. As already noticed, the decision of the Labour Court reaching the conclusion that it is not fair or proper to direct the management to re-instate the workman in service is not, in my view, dependant upon any appreciation of past conduct and is referable exclusively to the materials which were available before the Labour Court in connection with the domestic enquiry which was under consideration.
9. Learned counsel for the petitioner urged before me that competent criminal courts had acquitted the petitioner of the charges and that the depositions given by the witnesses before the criminal courts would show that he is entitled to be reinstated in service and that he is free from all blemishes. Having perused the judgment of the criminal courts, which are exhibited in this case, I do not find my way to conclude that he was acquitted of all blemishes. That apart, the evidenciary value of judgment of the criminal court is only for the limited purpose. It does not evidence more even in the realm of the Evidence Act. Coming to the depositions of the witnesses in the criminal courts, those materials are irrelevant for the very simple reason that there are testimonies of living persons. Neither law nor propriety would permit such evidence to be relied on in other proceedings. The disciplinary proceedings have been upheld by the Labour Court and there is no serious challenge to the same by the writ petitioner. I do not find any ground to interfere in so far as the disciplinary proceedings are concerned or as regards the decision of the Labour Court on the punishment established which is reasonable on the facts and in the circumstances of the case.
7. It has to be immediately recall that the petitioner had been employed as the Chief Accountant. He was intricately connected with the day-to-day management of the financial transactions of the first respondent. In this context, it is worthwhile to refer to two decisions cited by the learned counsel for the management, namely Union Bank of India v. Vishwa Mohan@@ EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE (1998 (4) S.C.C.310) and Chairman and Managing Director,@@ EEEEEEEEEEEEEEEEEEEE EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE United Commercial Bank and others v. P.C.Kakkar (2003@@ EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE (4) S.C.C.367) wherein the Apex Court had categorically@@ EEEEEEEEEEEEEE laid down that the office of an employee in the nature of the petitioner is an office of confidence and absolute devotion, integrity, anxiety and other essential requisites are required to be preserved in the banking business and in the absence of such, even the confidence of the public depositors would be impaired. As already noticed, the office the petitioner holds was the Chief Accountant. Hence, I am not inclined to hold that the management was to be compelled to reinstate him into service. Writ Petition fails and the same is accordingly dismissed.
No costs.
.SP 1 .JN THOTTATHIL B.RADHAKRISHNAN@@ AAAAAAAAAAAAAAAAAAAAAAAAAA (JUDGE)@@ AAAAAAA sl .PA ...................................L.......T.......T.......T.......T.......J. .SP 2 Thottathil B.Radhakrishnan, J.@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
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----------------------------------------@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA JUDGMENT@@ jAAAAAAAA DATED:9-6-2005@@ jAAAAAAAAAAAAAA