Kerala High Court
Anitha Baby vs Kunjappan Painkily on 23 May, 2014
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936
WP(C).No. 12014 of 2014 (B)
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PETITIONER:
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ANITHA BABY
W/O.P.J.BABY, PADINJARA VEETTIL, VETTIMOODU
KAKKUR P.O., ERNAKULAM DISTRICT-686 662.
BY SR.ADV.SRI.R.D.SHENOY
ADV.SRI.LEGITH T.KOTTAKKAL
RESPONDENTS:
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1. KUNJAPPAN PAINKILY
S/O.PAINKILY, MULAMATTAKOTTIL, THIRUMARADI P.O.
ERNAKULAM DISTRICT-686 662.
2. STATE OF KERALA
REPRESENTED BY ITS SECRETARY
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM-695 001.
ADDL.3. THE KERALA STATE ELECTION COMMISSION,
THIRUVANANTHAPURAM.
(ADDL. R3 IS IMPLEADED AS PER ORDER DATED 23.5.2014 IN
I.A.NO.6328/2014)
R1 BY ADV. SRI.K.RAMAKUMAR (SR.)
R1 BY ADV. SRI.S.M.PRASANTH
R1 BY ADV. SRI.M.MANOJKUMAR (CHELAKKADAN)
R1 BY ADV. SMT.ASHA BABU
R1 BY ADV. SMT.AMMU CHARLES
R2 BY G.P.SRI.THOMAS JOHN AMBOOKKAN
R3 BY S.C. SRI.MURALI PURUSHOTHAMAN
WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2014,
ALONG WITH WP(C)Nos. 12032 & 12062 of 2014, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C).No. 12014 of 2014 (B)
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APPENDIX
PETITIONER'S EXHIBITS
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EXHIBIT P1. TRUE COPY OF THE PETITION IN OP 52/2013 ON THE FILE OF THE
KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.
EXHIBIT P2. TRUE COPY OF THE OBJECTION FILED IN OP 52/2013 OF KERALA
STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.
EXHIBIT P3. TRUE COPY OF THE ORDER DATED 3/5/2014 IN OP 52/2013
PASSED BY THE KERALA STATE ELECTION COMMISSION,
THIRUVANANTHAPURAM.
EXHIBIT P4. TRUE COPY OF JUDGMENT DATED 20/11/2013 IN OP(C)
NO.3931/2013 ON THE FILE OF THE HIGH COURT OF KERALA.
RESPONDENTS' EXHIBITS: NIL
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// TRUE COPY //
TKS
P.S. TO JUDGE
"C.R"
C.T.RAVIKUMAR, J.
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W.P.(C)Nos.12014, 12032 & 12062 of 2014
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Dated 2nd December, 2014
JUDGMENT
These writ petitions arise from a common order dated 3.5.2014 of the Kerala State Election Commission in O.P.Nos.52, 51 and 53 of 2013 respectively. The petitioners herein have allegedly played different roles in the election to the Presidentship of Thirumaradi Grama Panchayat (for short `the Panchayat') which ultimately found by the Election Commission as amounting to disloyalty and as such sufficient to disqualify them from being members of the said Panchayat under Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short `the Act') for having committed defection. Consequently, declarations that the petitioners stood disqualified for being members of the Panchayat as provided by Section 3(1)(a) of the Act and also disqualified for contesting as candidates in an election to any local authorities for a period of six years from that date as provided under Section 4(3) of the Act have been made by the Election Commission as per the said common order. Therefore, these writ petitions carrying challenge against the said common order are taken up for joint hearing and disposal.
WP(C).Nos.12014, 12032 & 12062/2014 2
2. The aforementioned original petitions were filed before the Kerala State Election Commission by the common first respondent against the petitioners, in these writ petitions. The common first respondent who filed the original petitions and the respondents therein who filed these writ petitions are referred to hereafter in this judgment as `common first respondent' and `writ petitioners' respectively unless otherwise specifically mentioned. The undisputed factual contentions in all the aforesaid original petitions can be encapsulated as follows:-
The writ petitioners and the common first respondent are members of the Panchayat and they contested the election to the Panchayat held in 2010 as candidates under the banner of Indian National Congress (for short `INC') which is a constituent of the UDF coalition. All the members who returned to the Panchayat under the banner of UDF coalition except one Smt.Beena James belonged to INC. The remaining five members in the Panchayat contested and elected to the Panchayat under the banner of LDF coalition. Later, Smt.Beena James, the member belonging to the party Kerala Congress (Jacob) was elected as the President of the Panchayat and the consensus then arrived at among the District leadership of the UDF was that Smt.Beena James WP(C).Nos.12014, 12032 & 12062/2014 3 would hold the post of President only for a period of 2= years and the remaining term of the Presidentship would be served by the nominee of INC. On 4.7.2013 Smt.Beena James resigned from the Presidentship to pave way for the Congress nominee to become the President of the Panchayat. Consequently, election to the post of President of the Panchayat was scheduled to be held on 29.7.2013. The name of Smt.Valsamma Bhaskaran belonging to INC was proposed and seconded by two members belonging to the said party and the name of the petitioner in W.P.(C)No. 12014 of 2014 was proposed and seconded respectively by the petitioners in W.P.(C)Nos.12062 and 12032 of 2014. In the election held on 29.7.2013 the petitioner in W.P.(C)No.12014 of 2014 defeated the said Smt.Valsamma Bhaskaran and became the President of the Panchayat.
3. The writ petitioners filed written statements in the respective original petitions and resisted the claims and contentions of the common first respondent except the factual contention that all the three petitioners cast votes in favour of the petitioner in W.P.(C) No.12014 of 2014 and she became the President of the Panchayat. In fact, they raised certain common contentions. The contentions of the learned Senior Counsel appearing for the writ petitioners as also the common first respondent can be summed up as follows:-
WP(C).Nos.12014, 12032 & 12062/2014 4
The learned Senior Counsel for the writ petitioners submitted that a perusal of the original petitions referred above and the common order dated 3.5.2014 would reveal that essentially allegations were raised against the writ petitioners under different counts and on absolute perverse appreciation of evidence they were all found favourable to the common first respondent by the Election Commission. The first allegation was that the petitioner in W.P.(C)No.12014 of 2014 contested against the official candidate of INC Smt.Valsamma Bhaskaran and the petitioners in W.P.(C) Nos.12032 and 12062 of 2014 respectively were her proposer and seconder. The other allegations against them were that they colluded with the opposition and defied the whip and voted in favour of the petitioner in W.P.(C)No.12014 of 2014 and thereby they became disloyal to the party and incurred disqualification on the ground of defection. The writ petitioners contended that the copy of the notice convening Parliamentary party meeting of the members of the Panchayat belonging to INC allegedly held on 26.7.2013 deciding the candidature of Valsamma Bhaskaran was not produced and proved. It is also contended that despite claiming existence of minutes of the said meeting it was not produced and proved and the contents of the unserved documents Exts.P4 to P6 allegedly carrying whip were not proved in the manner WP(C).Nos.12014, 12032 & 12062/2014 5 they were to be proved legally and as such there was no proof to show that whip/direction in writing was issued to cast vote in favour of Smt.Valsamma Bhaskaran and she was nominated as the Presidential candidate of INC for the said election. The petitioners contended, in unison, before the Election Commission that in fact, the decision of the members and INC was to contest the election of President with Anitha Baby, the petitioner in W.P.(C)No.12014 of 2014 as the candidate. It was also their contention before the Election Commission that in the election meeting held on 26.7.2013 the name of Anitha Baby was proposed and seconded earlier to the proposal and seconding of the name of Valsamma Bhaskaran by two other members of INC. The writ petitioners also contended that no whip issued by PW2, the DCC President Ernakulam was read over in the meeting. The LDF members must have cast their votes in favour of Smt.Anitha Baby, the petitioner in W.P.(C)No.12014 of 2014 as the LDF did not propose or second any candidate for Presidentship and they were at liberty to cast votes in favour of either of the contesting candidates and therefore, it could not have been taken as disloyalty towards INC. They also took up the contention that they did not refuse or unclaim any communication sent by PW2, the DCC President, Ernakulam and therefore, there was no question of violation of direction in writing viz., whip by PW2. The contention is that their oral testimonies to the aforesaid effect and the WP(C).Nos.12014, 12032 & 12062/2014 6 other legal contentions were brushed aside by the Election Commission and the unfavourable finding is an outcome of perverse appreciation of evidence. A contention which was not seen raised before the Election Commission has been, now, raised by the writ petitioners. They contend that PW2 was examined after the closure of the evidence of the common first respondent as also after the completion of their examination as RW1 to RW3 and it was done with a view to fill up the lacuna in the evidence of the common first respondent and therefore, it vitiated the entire proceedings in the original petitions before the Election Commission. The judgment of the Hon'ble Apex Court in Civil Appeal No.4189 of 2014 dated 28.3.2014 and the decision in P.John Chandy and Co. (P) Ltd. v. John P.Thomas reported in (2002) 5 SCC 90 are relied on by the learned Senior Counsel for the petitioners to contend that drawing inference from the facts established is not purely a question of fact and it is to be considered as a point of law and when inferences drawn do not clearly flow from facts and are not legally legitimate, any conclusion thus arrived at based on the same would become absolutely legally fallible and in such circumstances, this Court would be justified and in fact, bound to substitute the inference not flowing the facts established. Per contra the learned Senior Counsel appearing for the common first respondent in these cases contended that all such contentions raised on behalf of the writ petitioners are absolutely untenable. It is contended WP(C).Nos.12014, 12032 & 12062/2014 7 that while exercising the power of judicial review this Court is not acting as an appellate authority and therefore, when there is no glaring illegality or perverseness in the findings of the Election Commission in exercise of the power of judicial review the findings of the Election Commission could not be substituted by this Court. To fortify the said contention the learned Senior Counsel relied on the decisions of the Hon'ble Apex Court in Abdul Razak v. Mangesh Rajaram Wagle ((2010) 2 SCC 432) and Heinz India Pvt. Ltd. v. State of U.P. ((2012) 5 SCC 443). With reference to the contention of the writ petitioners that the party did not treat them as having voluntarily given up their membership and they had participated in the subsequent meetings and obeyed subsequent whips it is contended that such contentions are absolutely irrelevant and immaterial while deciding the issue of defection in view of a Division Bench decision of this Court in Varghese V.V and another v. Kerala State Election Commission and another (2009 (3) KHC 42 (DB)). It is contended that the view taken by the Election Commission is plausible considering the evidence let in by both sides and therefore, there is no scope for any judicial review as regards the common order dated 3.5.2014.
4. The position is fairly settled that the question of commission of defection is to be adjudged based on the defined conduct WP(C).Nos.12014, 12032 & 12062/2014 8 of the member concerned or group of members concerned on the relevant date and the subsequent change of heart or remorseful conduct of such member/members or reconciliatory attitude could not repair or undo the damage caused by the disloyal conduct incurring disqualification as per the Division Bench decision of this Court in Varghese's case (supra). In Nazeer Khan v. Kerala State Election Commission and another reported in 2009 (1) KHC 681 (DB) a similar view taken by a learned Single Judge was upheld. In this case, the conduct of the writ petitioners including their voting, on 29.7.2013 alone is material for the purpose of proceedings under Section 4 of the Act to decide whether they became disloyal to the political party INC by defying the whip and for the purpose of deciding the question whether they could be said to have voluntarily given up their membership of INC. The incontrovertible position obtained in this case is that in the election held on 29.7.2013 the petitioner in W.P.(C)No.12014 of 2014 got the votes of the opposition enbloc besides the votes of the other writ petitioners and thus defeated Smt.Valsamma Bhaskaran to become the President of the Panchayat. Though the learned Senior Counsel for the writ petitioners attempted to canvass the contra position that subsequent remorseful actions, such as obeying the subsequent whips etc., could also be taken into account to decide the question of voluntary giving up of membership and the question of disqualification on the ground of defection, on a WP(C).Nos.12014, 12032 & 12062/2014 9 conjoint reading of clause (ivA) of Section 2 and Section 3 of the Act and the decision of the Division Bench in Varghese's case (supra) I have no hesitation to hold that rueing the day on which the action amounting to disloyalty was shown towards one's own political party or subsequent remorseful actions or complying with subsequent whips etc. cannot rescue a defectionist from the inevitable consequence of such action, under the Act. Bearing in mind the said settled position, as noted above, the question is whether findings of the Election Commission and the consequential declarations as against the writ petitioners, as aforesaid, would withstand judicial review as both sides concede to the position that the power to be exercised in the matter of consideration of these writ petitions directed against the common order of the Election Commission dated 3.5.2014, is judicial review. As noticed earlier, to contend that while exercising the same this Court cannot act as an appellate authority to substitute the findings made by the Election Commission the decisions in Abdul Razak's case (supra) and Heinz India Pvt. Ltd.'s case (supra) are relied on by the respondents. Evidently, the said position has been re-stated by the Hon'ble Apex Court in the decision in Nirmala J. Jhala v. State of Gujarat (AIR 2013 SC 1513). The Hon'ble Apex Court held therein that judicial review is not akin to adjudication on merits by re-appreciating evidence as an appellate authority and the adequacy or reliability of evidence is not a matter which could be WP(C).Nos.12014, 12032 & 12062/2014 10 permitted to be canvassed before the High Court in a writ proceedings. Thus, it must be emphasised that judicial review, is not itself a remedy and it is merely the procedure for obtaining one or more of the established legal remedies. H.M.Sreevai in the Fourth Edition of Critical Commentary on Constitutional Law of India made a nice distinction between supervisory and appellate jurisdiction. It is stated:- "The difference between supervisory and appellate jurisdiction is to be found in the different approach involved in the exercise of these two jurisdictions. A court exercising supervisory jurisdiction through certiorari is directly concerned not with the rights of parties but with the question: has the inferior tribunal gone wrong on a point of law and thus not obeyed the law? If it has, the order will be quashed leaving the tribunal to tribunal to determine the rights of the parties. In exercising this jurisdiction, the court does not re-hear the case, or receive fresh evidence, or try to appreciate the evidence for itself, but it merely gets the order out of the way if it contains an error of law on its face. In exercising appellate jurisdiction the approach of the court is wholly different. The question to be decided is not: has the tribunal obeyed the law? but the wholly different question, "is the appellant entitled to the rights which he has claimed and which the judgment under appeal has denied to him?" The supervisory jurisdiction of the court is concerned directly with the conduct of the tribunal in obeying the law, the appellate WP(C).Nos.12014, 12032 & 12062/2014 11 jurisdiction of the court is concerned directly with determining the rights of parties." In contrast to those, a judicial review concerns with the decision making process and not with the decision as such. At the same time, it is to be noted that in the decision in John Chandy's case (supra) the Hon'ble Apex Court held that drawing inferences from the facts established is not purely a question of fact and it is to be considered as a point of law and when inferences drawn do not clearly flow from facts and are not legally legitimate any conclusion thus arrived at based on the same would become legally fallible. When the inferences drawn do not legally flow from facts obtained in a case it would definitely indicate perverse appreciation of evidence and a glaring illegality and in such cases even going by the decisions relied on by the learned Senior Counsel for the common first respondent referred supra, a judicial review is warranted. Bearing in mind the said decisions I will proceed to consider the rival contentions.
5. I will deal firstly with the common contention of the writ petitioners that the Election Commission ought not to have permitted examination of PW2, the DCC President, Ernakulam after the closure of the evidence of the common first respondent and also that of the writ petitioners as RWs 1 to 3 and that by allowing examination of the DCC President, Ernakulam as PW2 the Election Commission had virtually, WP(C).Nos.12014, 12032 & 12062/2014 12 permitted the common first respondent to fill up the lacuna in this case. This deviation from the procedure, according to the writ petitioners, vitiated the entire proceedings. In the light of the provisions under Section 5(1) of the Act the learned Senior Counsel for the writ petitioners contended that the action on the part of the Election Commission as aforesaid violated the order of examination of the witnesses regulated by the law and practice relating to civil procedure contemplated under the Code of Civil Procedure (for short `CPC') which is to be followed in the matter of disposal of a petition under Section 4(1) of the Act. Per contra, the learned Senior Counsel for the common first respondent submitted that the Election Commission could not be tied down by the provisions under the CPC and therefore, the writ petitioners who participated in the proceedings before the Election Commission without any demur and cross examined PW2 cannot legally raise any objection against the procedures and canvass the position that the deviation from such procedures vitiated the entire proceedings. In the light of the rival contentions it is relevant to refer to the provisions under the Indian Evidence Act, 1872. Section 135 of the Evidence Act deals with the examination of witnesses and going by the said provision the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the WP(C).Nos.12014, 12032 & 12062/2014 13 discretion of the court. Order XVIII of the CPC deals with hearing of the suit and examination of witnesses. Going by the provisions under Order XVIII, Rule (1) the plaintiff has the right to begin. However, a careful scrutiny of the provisions under Order XVIII would reveal that this is not an absolute rule as in certain cases, the defendant also could begin. Thus, it is evident that as a rule the defendant's witnesses could be examined after the closure of the plaintiff's evidence. However, when the defendant has led the evidence first the plaintiff's evidence could be given after the closure of the defendant's evidence. These are provisions under the CPC that regulate the production and examination of the witnesses. At the same time, the provisions under Sections 5(1) and 5 (2) of the Act would reveal that they do not provide that all the provisions of CPC should be applied for the disposal of a petition filed under Section 4(1) of the Act. Section 4(1) would reveal that the Election Commission is empowered to decide the question as to disqualification on ground of defection and Section 5 of the Act deals with the powers of the Election Commission for the disposal of such petitions. Section 4(2) of the Act would reveal that on a petition filed under Section 4(1) the Election Commission has to decide the question as to whether a member has become subject to disqualification on ground of defection `after making such enquiry as it deems necessary'. Therefore, for the decision on such a question the Election Commission is to conduct such WP(C).Nos.12014, 12032 & 12062/2014 14 enquiry as it deems necessary. Section 5 of the Act deals with the powers of the Election Commission while dealing with such enquiry. In the circumstances, a decision of this Court in Ramaswamy and Others v. Kamaraj Ponnuswamy and Another reported in 2010 (1) KLT 255 assumes relevance. In the said decision this Court held that though going by Section 5 of the Act a petition filed under Section 4(1) of the Act shall be disposed of in accordance with the procedure applicable while trying a suit under the Code of Civil Procedure the Election Commission could not be tied down to the procedures under the Code of Civil Procedure. Now, in the case on hand what happened was that PW1 was examined first and thereafter the writ petitioners herein who were the respondents therein were examined as RWs 1 to 3 and it is only thereafter that the DCC President, Ernakulam was examined as PW2. It is only apropos to refer to certain indisputable factual positions in this context. The proceedings of the Election Commission would reveal that PW1 was examined on 8.1.2014 and on that day an application for issuing Commission for examination of DCC President, Ernakulam was also allowed. Thereafter, the aforementioned original petitions were posted for Commission report and examination of respondents, to 28.1.2014. The further proceedings would reveal that on two occasions the DCC President, Ernakulam could not be examined and in the meanwhile, the writ petitioners were examined as RWs 1 to 3. On WP(C).Nos.12014, 12032 & 12062/2014 15 18.3.2014 the writ petitioners submitted that they got no further evidence to adduce and a submission was made by the Commissioner that examination of DCC President, Ernakulam was posted to 19.3.2014 and thereupon the Election Commission allowed his examination through Commission on 19.3.2014 and the cases were posted to 21.3.2014. Admittedly, on 19.3.2014 the DCC President, Ernakulam was examined and the writ petitioners participated in the proceedings and on their behalf PW2 was cross examined. On 26.3.2014 the Commission report was filed and the witness examined on Commission was treated to have been examined as PW2 and the evidence was closed. Consequently, the cases were posted to 29.3.2014 for hearing and after hearing the cases were posted for judgment and the impugned common order was passed on 3.5.2014. Thus, it is obvious that the writ petitioners had participated in the proceedings without any demur and they did not file any objection for the examination of the DCC President, Ernakulam as PW2 on 19.3.2014 and that apart on their behalf PW2 was cross-examined extensively. No specific argument was also advanced before the Election Commission in regard to the examination of the DCC President, Ernakulam as PW2 after the examination of the writ petitioners. Evidently, the Act has been enacted to prohibit defection among members of local authorities in the State of Kerala and to provide for disqualification of the defecting members for being members of the local WP(C).Nos.12014, 12032 & 12062/2014 16 authorities. Therefore, mere irregularities in procedures adopted by the Election Commission cannot be a reason for interfering with an order of the Election Commission while exercising judicial review if a plausible view was taken by the Election Commission based on the evidence and if there occurred no violation of the `principles of natural justice'. The court should keep itself reminded of the fact that what is provided against such orders of the Election Commission is not a regular appeal and what is being exercised is only a judicial review. In this case, the evidence of PW1 would reveal that the requisite foundation has been laid by him and the examination of PW2 on Commission was ordered by the Election Commission, even prior to the examination of the writ petitioners but, it could be conducted only subsequently and the writ petitioners cross-examined him without any demur. The writ petitioners therefore, cannot have a case that they were taken to surprise by the evidence of PW2. The writ petitioners could not establish any prejudice caused to them owing to the said deviation or that there is violation of the principles of natural justice. In such circumstances, a mere procedural irregularity or deviation cannot be taken as one vitiating the proceedings before the Election Commission. In this context it is most appropriate to refer to the decision of the Hon'ble Apex Court in Roshan Deen v. Preeti Lal reported in AIR 2002 SC 33 whereon the Hon'ble Apex Court held that the power conferred on the High Court under WP(C).Nos.12014, 12032 & 12062/2014 17 Articles 226 and 227 of the Constitution of India is to advance justice and not to thwart it. In view of the aforesaid reasons I do not find any merit in the contention of the writ petitioners that the action on the part of the Election Commission in examining PW1 and conducting the examination of RWs 1 to 3 and then allowing the examination of DCC President, Ernakulam as PW2 is a fatal illegality which would vitiate the entire proceedings.
6. Based on the pleading and the arguments advanced by both sides, twin points call for decision as hereunder:-
(i) Whether the finding of the Election commission that the writ petitioners defied the direction-in-writing/whip as provided in Section 3(1)(a) of the Act, in the election of the President to the Panchayat, is contrary to law?
(ii) Whether the finding of the Election Commission that the writ petitioners had given up their membership of the political party INC, is contrary to law?
In a case where there is defiance in complying with the direction-in-writing it would necessarily indicate the disloyalty and consequently the voluntary giving up of membership to attract the disqualification on the first limb of Section 3(1)(a) of the Act. But, I may hasten to add, as already noticed, voluntary giving up of membership from a political party is not dependant on defiance of direction-in-writing/whip. The meaning of the term `direction in writing' is given under clause (ivA) of Section 2 of the Act WP(C).Nos.12014, 12032 & 12062/2014 18 and it came into force with effect from 17.1.2012. It means a direction in writing, signed with date, issued to a member belonging to a political party or who has the support of the said political party, District President or the District Secretary of the said political party for exercising the vote favourably or unfavourably or to abstain from voting. In the Original Petitions from which the captioned writ petitions arose the common first respondent raised the specific ground that the writ petitioners have defied the direction in writing issued by PW2, the DCC President, Ernakulam in the election of President of the Panchayat held on 29.7.2013. Ext.P1 series would reveal that the writ petitioners belonged to INC and they have given declaration in form No.2 before assuming charge in their office. Ext.P2 is the register showing party affiliation of members of Thirumaradi Grama Panchayat and it would reveal the affiliation of the writ petitioners with INC. Ext.P3 is the copy of the whip dated 26.7.2013 issued by the DCC President, Ernakulam in tune with the provisions under Clause (ivA) of Section 2 of the Act. While the writ petitioners contend that such a whip was not issued and served on them in any of the manners contemplated under Rule 4 of the Kerala Local Authorities (Disqualification of Defected members) Rules, 2000 (for short `the Rules') the common first respondent asserts that the direction in writing of PW2 was duly served on them in compliance with the mandatory provisions thereunder. At the very outset, it is to be noted WP(C).Nos.12014, 12032 & 12062/2014 19 that, the competency of PW2 to issue `direction in writing' by virtue of his position as the District President of INC, Ernakulam is not at all disputed by the writ petitioners. Rule 4 provides the manner in which a political party or a coalition may give direction to its members. It reads thus:-
"4. The manner in which a Political party or Coalition may give direction to its members.-
(1) If a political party or coalition gives any direction in respect of the casting of vote in an election or in a voting as has been mentioned in clause (a) or clause
(b) of Section 3, it shall be in writing and such a direction shall be given,-
(i) in the case of a member belonging to a political party or a member considered as included therein, it shall be the person authorised from time to time to recommend the symbol belonging to the political party inorder to contest the said member in the election. Provided, the above said direction shall be in the letter head and seal of the political party and for the information of the members, the contents therein shall be read over by the member who shall be elected by the members belonging to the political party and the members considered as included in the political party jointly, based on majority from among themselves, and the direction so read shall be deemed to have given directly to the members. In any case, in the absence of the member elected by majority or if that member refuses, another member belonging to the same party shall read over the said direction.
(ii) In the case of a member who belongs to a coalition or considered to be included in it; by the member whom the members of the said coalition and the members considered to be included in it in the local authority concerned elect for the purpose, on majority WP(C).Nos.12014, 12032 & 12062/2014 20 basis from among themselves.
(iii) if any dispute arises between the member elected on majority or the concerned political party as mentioned in clause (i), the above said direction given shall be considered as valid.
(2) While issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgment due and while effecting it by affixing it shall be done in the presence of at least two witnesses . Copy of the direction in writing shall also be given to the Secretary."
Rule 4(2) of the Rules specifically provides that while issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgement due and while effecting it by affixture it shall be done in the presence of at least two witnesses. Evidently, in these cases, no contention was raised and no documents were produced to show that a direction in writing was read over in terms of clause (i) of sub-rule (1) of Rule 4. So also, there is no case that in terms of sub-rule (1) direction was given directly by PW2 to the writ petitioners and obtained receipts from them. Though PW1 claimed that such notices were served by affixture in the presence of witnesses apart from the assertion no evidence whatsoever, was adduced in that regard and no such witnesses were examined before the Election Commission. The writ WP(C).Nos.12014, 12032 & 12062/2014 21 petitioners also assert that no such notices were affixed in their residences and in the circumstances, it cannot be taken that a direction in writing was served on the writ petitioners by affixture. In this case, PW1 and PW2 deposed that such directions in writing were issued to the writ petitioners by registered post. They also deposed that on 26.7.2013 the parliamentary party meeting was convened in the house of PW2 and in the said meeting it was resolved to contest the election to the post of President of the Panchayat with Smt.Valsamma Bhsakaran as the candidate of INC. Exts.P4, P5 and P6 series were produced before the Election Commission to establish that such direction-in-writing was issued to the writ petitioners. At the same time, what PW2, the DCC President, Ernakulam had categorically deposed is that such direction in writing issued was sent to the writ petitioners either by the Thirumaradi Mandalam President of the INC or by the Vice-President of the Panchayat, as authorised by him. Ext.P3 series are the whips received by the common first respondent and three other members from the Congress Party from PW2, the DCC President. Exts.P4 to P6 series were the postal articles returned unclaimed or refused. The writ petitioners contended that the contents of the postal articles admittedly returned unclaimed were not proved in accordance with law or in other words, the fact that the articles contained the whip issued by the DCC President was not legally brought on record and thus not proved. The writ petitioners WP(C).Nos.12014, 12032 & 12062/2014 22 also contended that they had not refused to receive or unclaimed any notice or article from PW2, the DCC President. When, admittedly, the sender of Exts.P4 to P6 was not the DCC President it could not be said that they unclaimed or refused a communication carrying the whip from the DCC President. In this context it is to be noted that a scanning of the evidence will also show that what was actually proved through PW2 with Exts.P4 to P6 series before the Election Commission by the common first respondent in essence, is nothing but the fact as contended by the writ petitioners. True that PW2 has also deposed to the effect that the Thirumaradi Mandalam President of INC and the Vice-President of the Panchayat sent them, as authorised by him. In cross examination PW2 deposed thus:-
"P6 Ap\]q](OPfV `Ljsf. Cf]$ WLe]\]q](OP ANcyV IS"rfsf. IR"r j]!ShwNkWLqoLeV yL^O P6 Ap\fV. P4(series) Ap\]q](OPfV V.M.Alexander BeV. V.M.Alexander k5Lp>V Vice-President BeV. q:OSk!(OU \OofspOg WLq|oLeV Av! j]!vz]\fV. P5 (series) Ap\fV yL^O v!VYVY}yLeV. P4, P5, P6 IP]vp]$ KPOU fRP `L" Ap\fLp] WLeOP]sf. CRfsfLU IR"r Ar]SvLaOU f}qOoLjU AjOyq]\OU Ap\]YOgfLeV."
In view of the factual matrix thus obtained from the evidence I am of the view that there is absolutely no necessity to invoke the principle of legitimate inference relying on the decision in John Chandy's case WP(C).Nos.12014, 12032 & 12062/2014 23 (supra) and a consideration of the issue with reference to the relevant provisions of law, as extracted earlier, alone is necessary to answer point No.1. Rule 4 of the Rules providing the manner in which a potential party or coalition may give direction to its members has already been referred to. It is not the case of the common first respondent and at any rate, not the case established that the direction in whip, as has been mentioned in clause (a) of Section 3 of the Act, was read over to all the members of the Panchayat belonging to INC including the writ petitioners, in the manner provided under Rule 4(1)(i) of the Rules. Same is the case in regard to the first mode of communication permissible under Rule 4(2) of the Rules, namely issuing it directly to the members and obtain receipt therefor. Though the common first respondent claimed serving of the direction by affixture on the writ petitioners they specifically denied affixture of any whip in their houses and obviously, none who witnessed such affixture (if it was actually affixed) was examined as a witness by the common first respondent. Therefore, the sole surviving recognised method of issuance of whip/direction in writing is sending such direction by registered post with acknowledgment due. Exts.P4 and P5 are the series of postal articles allegedly contained the whips from the INC President and they are admittedly sent by the Vice-President of the Panchayat and the Thirumaradi Mandalam President of INC. Ext.P6 is the series of whips WP(C).Nos.12014, 12032 & 12062/2014 24 sent through courier and they were also not sent in the name of the DCC President. Even if Exts.P4 to P6 series of postal articles contained the directions in writing issued by PW2, the DCC President, Ernakulam, the very admitted fact that the name of the sender was shown in all those postal articles as the Mandalam President or the Vice-President of the Panchayat, would disentitle the common first respondent and also PW2 to contend that the writ petitioners have declined to receive or unclaimed the direction in writing issued by the DCC President and sent by registered post for the purpose of canvassing defiance with the direction in writing. Having carefully perused the evidence of PWs 1 and 2 and also that of RW1 to RW3 and Exts.P4 to P6 series and the provisions relating the manner in which direction is to be given to members by a political party or a coalition I am of the view that in the matter of deciding the question whether a direction in writing was complied with or not there is absolutely no scope for drawing inference and it is a matter, unlike the question of voluntary giving up of membership, to be decided on positive evidence. There is absolutely no explanation for PW2 as to why Exts.P4 to P6 series were not sent in his name and address and why the sender's name was shown either as the Mandalam President or the Vice-President of Panchayat. In fact, the Mandalam President and the Vice-President were also not examined as to ascertain the reason. As a matter of fact, even if they were sent by them there can be no valid WP(C).Nos.12014, 12032 & 12062/2014 25 reason for not showing the address of the DCC President against the sender's name in Ext.P4 and Ext.P5. Therefore, Exts.P4 and P5 are series of registered postal articles and they were returned unclaimed or they were refused to be received are not reasons to hold that the writ petitioners refused to receive the whip/direction in writing issued by the DCC President. Same is the case with respect to Ext.P6 series which are sent by courier. Rule 4 of the Rules would reveal that it is not a method recognised or prescribed thereunder. When the statute prescribes a manner for issuing direction in writing and a very serious consequence of disqualification is contemplated for non-compliance with the direction in case of failure to adhere scrupulously to the prescribed manner in the matter of its issuance, infliction of disqualification based on inference or mere oral evidence contrary to the facts obtained from the documentary evidence is impermissible and as such illegal. In such circumstances, I have no hesitation to hold that the Election Commission went wrong in holding relying on the evidence of PW1 and PW2 with Exts.P4 to P6 series, that the writ petitioners have defied the direction in writing. There is glaring illegality in the finding and it is the result of a perverse appreciation of evidence. The first point is answered in the affirmative.
7. The next point to be considered is whether the finding of the Election Commission that in the facts established in this case the writ petitioners who were respondents in the aforesaid original petitions had WP(C).Nos.12014, 12032 & 12062/2014 26 shown disloyalty to the political party INC and thereby voluntarily given up their membership from that political party is legally sustainable? The contention of the writ petitioners that they had complied with the subsequent whips issued by INC and therefore, it could not be said that they had voluntarily given up their memberships in INC is devoid of any merit and I have already referred to the settled position that such remorseful actions or rueing on such lapses will not be enough to rescue them from the operation of the provisions regarding defection, if by their action they had actually given up their membership voluntarily. While considering the question of voluntary giving up membership of a political party the following aspects are noteworthy:-
Resignation is the open expression of `voluntary giving up the membership' of a political party. But, the voluntary giving up the membership of political party for incurring disqualification under Section 3(1)(a) of the Act need not necessarily be by resignation. The said concept was better explained and elucidated in relation to `the Act' by a Division Bench of this Court in Varghese's case (supra). The Division Bench considered the issue with reference to the decision of the Hon'ble Apex Court in Ravi S.Naik v. Union of India (AIR 1994 SC 1558). In paragraph 7, after extracting section 3(1)(a) of the Act, the Division Bench held:-
WP(C).Nos.12014, 12032 & 12062/2014 27
"The expression 'defection' as such is not defined in the Act. Probably the expression does not require a definition since the concept is so plain. But the Legislature has left the disqualification to be decided on the defined conduct of the member. We are concerned with the conduct of voluntarily giving up membership in the political party. It is now settled law that in order to attract the disqualification on the ground of voluntary giving up membership in the political party, the elected member need not resign from the party. In Ravi S. Naik v. Union of India (AIR 1994 SC 1558) it was held that voluntarily giving up membership is not synonymous with resignation. Voluntary giving up membership has a wider meaning than resignation as observed by a Division Bench of this court in Shajahan v. Chathannoor Grama Panchayat (2002 (2) KLJ 451). In Ravi S.Naik's case the Apex Court made it clear that "Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs". In Rajendra Singh Rana v. Swami Prasad Maurya ((2007) 4 SCC 270) also the Supreme Court held that it is the conduct of the elected members that is to be looked into while considering whether an elected member has become disqualified on the ground of defection based on voluntary giving up membership in the political party. In G.Viswanathan v. Speaker, Tamil Nadu Legislative Assembly,((1996) 2 SCC 353) the Apex Court held that "the Act of voluntary giving up the membership of the political party may be either express or implied". In Faisal v. Abdulla Kunhi (2008 (3) KLT 534) a learned single Judge of this court has taken the view that the expression "voluntarily giving up membership of his political party" is not to be equated with ceasing to be a member of his party by express resignation; it is to be inferred from the conduct of the member. It was also held therein that the relevant date for deciding the question of disqualification is the date on which the member voluntarily gives up the membership."
Evidently, the Division Bench also took note of the decision in Kihoto Hollohan v. Zachillhu and Others reported in 1992 Supp. (2) SCC 651 whereon the principle `loyalty to the parties is the norm and voting against the party is disloyalty' as stated in Griffith and Ryle on WP(C).Nos.12014, 12032 & 12062/2014 28 Parliamentary Functions, Practice and Procedure was referred to for holding "any freedom of its members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance -nay, indeed its very survival". Ultimately, taking into account all such aspects and the object of the Act the Division Bench held that if a member or group of the elected members of the political party takes a different stand from that of the political party as such, and acts against the policies of the political party in which they are members, it is nothing but disloyalty. Further it was found that the moment one becomes disloyal by his conduct to the political party, the inevitable inference is that he has voluntarily given up his membership. It is also held that the subsequent change of heart and remorseful conduct of the member or the reconciliatory attitude of the political party cannot repair or undo the damage caused by the disloyal conduct leading to the disqualification. Such steps are to be re-assessed by the people giving choice to contest. In the decision in Shiney Augustine v. Kerala State Election Commission, Thiruvananthapuram reported in 2009 (4) KHC 527 this Court held that even if no whip is issued, if a member was instrumental in moving, voting and carrying the no-confidence motion against another party member, the Election Commission could not be WP(C).Nos.12014, 12032 & 12062/2014 29 found fault with for reaching a conclusion that the member had voluntarily given up membership of the political party to which he/she belonged. In the decision in Biju.R.S. and Others v. Kerala State Election Commission and Others reported in 2009(2) KHC 839 a learned Single Judge of this Court held that disqualification for voluntarily giving up the membership of one's party under Section 3(1)(a) of the Act is not dependant on the violation of the whip alone and the twin grounds thereunder for disqualification are distinct and are not interlinked. The said decision was later affirmed by a Division Bench in W.A.No.770 of 2009. In Shajahan v. Chathannoor Grama Panchayat & Ors. reported in 2000 (2) KLJ 451, a Division Bench of this Court held that the conduct of a member of a local authority could be looked into for drawing a clear inference as to whether he has voluntarily given up his membership in the party. As noticed hereinbefore, the Hon'ble Apex Court in Ravi S. Naik's case (supra) held that even in the absence of a formal resignation from membership, an inference could be drawn from the conduct of a member whether he has voluntarily given up his membership of the political party to which he belongs. In view of the aforesaid positions of law obtained I will proceed with the consideration of point No.2.
8. I have already found that the evidence of PW2 could not WP(C).Nos.12014, 12032 & 12062/2014 30 be treated as one which was not legally brought on evidence and therefore, it could not be eschewed from consideration. PW2, the DCC President was the competent person in terms of clause (ivA) of Section 2 of the Act to issue direction in writing in regard to the exercise of vote by members of the Panchayat belonging to INC in the election of the President of Panchayat. In the light of the decisions referred above and the provisions under Section 3(1)(a) of the Act the finding on point No.1 cannot be a ground for discarding the evidence of PW2 for deciding the question of voluntary giving up of membership by the writ petitioners from INC as the question of voluntary giving up of membership of a political party is distinct and it is not dependant on the question of defiance of whip. PW2 deposed that in relation to the election held on 29.7.2013 a meeting was convened on 26.9.2013 and in the meeting a decision was taken to contest the election to the post of President of the Panchayat with Smt.Valsamma Bhaskaran. A close scrutiny of the evidence of PWs 1 and 2 and the writ petitioners as RWs 1 to 3 would reveal that they had either refused to receive or unclaimed the postal article from the President of the Thirumaradi Mandalam Committee of INC. The evidence of the writ petitioners themselves as RWs 1 to 3 as also the evidence of PWs 1 and 2 would reveal that such disinclination was shown by them just before the election to the post of President on 29.7.2013. The writ petitioners did not have a case that they do not WP(C).Nos.12014, 12032 & 12062/2014 31 belong to the political party INC and in fact, their consistent case is that they still belong to that party. Had it been so, why they have declined to receive a communication admittedly sent in their correct address from the President of the Mandalam Committee if they were loyal to the political party. The very case of the writ petitioners that they had either declined to receive or unclaimed only postal articles from the President of the Mandalam Committee itself in the absence of any proper explanation (in this case no explanation whatsoever was offered) would be a relevant factor for deciding point No.2. It would reveal their attitude towards their own party at that point of time. They do not have a case and they cannot have a case that in the organisational hierarchy of INC the Mandalam President is not having any position. In fact, the DCC President (PW2) has deposed that he had authorised the Mandalam President to send the whips to the writ petitioners. Despite thorough cross examination of PW2 nothing to discredit him could be elicited and as noticed hereinbefore, he deposed to the effect that INC took a decision to cast Smt.Valsamma Bhaskaran as its candidate to the post of President of the Panchayat in the election scheduled on 29.7.2013. The procedural irregularity in the matter of communicating the direction in writing of PW2 to the writ petitioners could not efface the impact of his evidence, in the circumstances. In that context the evidence of the writ petitioner in W.P.(C)No.12014 of 2014 as RW1 assumes relevance and WP(C).Nos.12014, 12032 & 12062/2014 32 she would depose:- " NY ." RW2 when being cross examined deposed as follows:-
"Congress sfL RW1 president
sf.
Congress
president . (Q) (A).
Congress party sf
NY member ."
PW2 specifically repudiated the suggestion made on behalf of the writ petitioners that Smt.Anitha Baby had contested the election successfully as the candidate of INC in the said election. In the said context it is to be noted that RW1, Anitha Baby herself admitted while being examined as RW1 that she did not obtain consent/permission to contest the election to the post of President on 29.7.2013. In the light of the evidence of the petitioner in W.P.(C)No.12014 of 2014 as RW1, as aforesaid, the case of the writ petitioners that the petitioner in the said writ petition was proposed and seconded earlier than the proposal and seconding of Valsamma Bhaskaran and that the Returning Officer told them regarding non-existence of any provision to withdraw the nomination can only be taken as a ruse to escape the clutches of the law of defection. There cannot be any doubt with respect to the position that even if name of a member is proposed and seconded unless the concerned member is willing to be nominated there cannot be any legal nomination at all. This position has been made clear in the decision of WP(C).Nos.12014, 12032 & 12062/2014 33 this Court in W.A.No.2351 of 2005 and the said decision was rightly referred to by the Election Commission in the common order to reject the contention of the writ petitioners. The candidature cannot be available for scrutiny despite the proposal and seconding by members of Panchayat unless the concerned candidate accepted the suggestion of the proposer and seconder and expressed the willingness, in accordance with law, to contest the election. The petitioner in W.P.(C)No.12032 of 2014 while being examined as RW3 would depose:- "LDF Congress Ssf (Q) (A)." In the said circumstances, when the petitioner in W.P.(C)No.12014 of 2014 herself states that the opposing candidate was Valsamma Bhaskaran of Congress party the action on the part of the writ petitioners cannot be said to be one loyal to the political party INC. Even if the candidature of Valsamma Bhaskaran came subsequent to the nomination of the petitioner in W.P.(C)No.12014 of 2014 when Valsamma Bhaskaran's nomination was made by two other party members they could have cast their votes in her favour rather than casting the votes in favour of the petitioner in W.P.(C)No.12014 of 2014. In this context, it is to be noted that even abstinence from voting on that day would not have foreclosed the chance of the official candidate Smt.Valsamma Bhaskaran taking into account the fact that the opposition was having only a strength of five members and the UDF coalition was then having a strength of 8 WP(C).Nos.12014, 12032 & 12062/2014 34 members including that of the writ petitioners. When the writ petitioners failed to establish that the petitioner in W.P.(C)No.12014 of 2014 was nominated by INC as the candidate in the matter of election to the post of President on 29.7.2013 and in the light of the oral testimony of PW2 as mentioned above, the very action on the part of the petitioner in W.P. (C)No.12014 of 2014 to stand as the candidate against Valsamma Bhaskaran and the action on the part of the other writ petitioners in proposing and seconding her name and the action on the part of all the writ petitioners to cast vote against Smt.Valsamma Bhaskaran and cast vote in favour of Anitha Baby cannot be be taken as an act of loyalty. In other words, it can only be an act of disloyalty. In the new International Webster's Comprehensive Dictionary, Encyclopedic Edition the meaning of the word `loyal' is also given as `constant and faithful in any relation implying trust or confidence; `bearing true allegiance to constituted authority'. It is to be noted that the writ petitioners took up a contention that the petitioner in W.P.(C)No.12014 of 2014 could not be faulted for the action on the part of the opposition viz., the LDF members in casting votes in her favour in the election held on 29.7.2013. According to the writ petitioners, they never asked the said members from the opposition to cast vote in favour of Anitha Baby, and they themselves cast their vote in her favour as the LDF coalition did not put any candidate in the election. It is a fact that all the members of LDF cast vote only in favour WP(C).Nos.12014, 12032 & 12062/2014 35 of the petitioner in W.P.(C)No.12014 of 2014. If the petitioner in W.P. (C)No.12014 of 2014 appeared to be the official candidate to all the members who attended the meeting, under normal circumstances, one could not expect that the opposition would enbloc cast vote to the official candidate ignoring the candidature of a dissident. Whatever that be, standing in an election as a candidate to the post of President when admittedly, there is no such mandate from the political party and then defeating the candidate whom the competent authority of the party described and recognised as official candidate of the party (going by the evidence of PW2) by securing the vote of the opposition can only be an act of disloyalty. Needless to say that an action of disloyalty of such nature would amount to voluntarily giving up membership of the particular political party. In view of the position in Varghese's case (supra) receiving votes of the opposition and the consequential defeat of a candidate belonging to one's own party can only be an act of disloyalty amounting to voluntary giving up membership of a political party. Viewing all the aforesaid factual situations and situations available for legitimate inference, going by the decision in John Chandy's case (supra), it cannot be said that the inference drawn by the Election Commission from the facts established or obtained in this case that the writ petitioners have committed disloyalty and thus voluntarily given up their membership from INC is not one flowing from such established WP(C).Nos.12014, 12032 & 12062/2014 36 facts and situations available for legitimate inference. In other words, I am of the considered view that the Election Commission cannot be said to have committed any illegality in arriving at the conclusion that the writ petitioners have voluntarily given up their membership in the political party INC by the actions as aforesaid and in fact, it is a plausible view based on the evidence and situations. When it is a plausible view in exercise of the power of judicial review this Court cannot lancinate such finding of the Election Commission. In such circumstances, point No.2 has to be answered in the negative. I do so. Hence, I do not find any reason to interfere with the finding of the Election Commission in the common order against the writ petitioners that they have committed disloyalty and consequently, incurred the disqualification on the ground of defection. The declarations mentioned hereinbefore are only the consequence of such a finding. When such findings of the Election Commission cannot be said to be illegal the consequential declarations also cannot be said to be illegal. In the result, these writ petitions have to fail and accordingly, they are dismissed. No costs.
Sd/-
C.T.RAVIKUMAR Judge TKS