Kerala High Court
P.Mani vs Secretary on 25 November, 2008
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33122 of 2008(R)
1. P.MANI, VICE PRESIDENT,
... Petitioner
Vs
1. SECRETARY, ANAD GRAMA PANCHAYATH, ANAD,
... Respondent
2. STATE ELECTION COMMISSION
For Petitioner :SRI.GOPAKUMAR R.THALIYAL
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :25/11/2008
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No.33122 OF 2008
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Dated this the 25th day of November, 2008
JUDGMENT
The petitioner, who is a member of the Anad Grama Panchayat, is aggrieved by Ext.P10 order of the Kerala State Election Commission, whereby the dispute raised by the petitioner in respect of acceptance of resignation submitted by the petitioner has been rejected on the ground that the same was filed after 15 days from the date of taking effect of the resignation, which is the period of limitation prescribed by the proviso to Section 155(3) of the Kerala Panchayat Raj Act. The short facts necessary for disposal of the writ petition are as follows:
2. The petitioner was the Chairman of the Finance Standing Committee of the Panchyat. By Ext.P1, he submitted a resignation letter resigning as the Chairman of the Standing committee as well as membership of the Panchayat Committee.
The same was accepted by the Secretary on 11.8.2008. Thereafter, the petitioner submitted Ext.P5 letter dated W.P.(c)No.33122/08 2 25.8.2008 which was received by the Secretary on 26.8.2008, alleging that the resignation was obtained by threat and coercion by a group of people. Thereafter, the petitioner filed Ext.P6 petition dated 8.9.2008 before the State Election Commission in respect of the said dispute. Since the Election Commission did not consider the same, the petitioner filed W.P.(C) No. 27521/2008, in which this Court passed Ext.P9 judgment directing the Election Commission to dispose of Ext.P6 petition submitted by the petitioner. Pursuant thereto, the Commission passed Ext.P10 order rejecting the application as barred by limitation, the same having been filed beyond 15 days from the date on which the resignation took effect. The petitioner is challenging that order.
3. The contention of the petitioner is that within 15 days from 11.8.2008, the petitioner had raised a dispute regarding the resignation, by filing Ext.P5 before the 1st respondent, requesting him to refer the dispute to the State Election Commission, which would satisfy the requirement of Section 155 (3) of the Kerala Panchayat Raj Act, which relates to reference of disputes regarding resignation, to the Election Commission. That being so, according to the petitioner, there was a valid dispute W.P.(c)No.33122/08 3 raised within 15 days before the Commission, as required under Section 155(3) of the Act, which is not barred by limitation and therefore the Commission is bound to consider that reference and pass orders on the same on merits.
4. This is opposed by both the Commission as well as the Secretary of the Panchayat. The Commission would point out that under Rule 5 of the Kerala Panchayat Raj (Resignation of President, Vice President or Members) Rules 2000, the dispute under Section 155(3) has to be raised by filing a petition before the State Election Commission, which has to be within 15 days as contemplated in Section 155(3). Therefore, on a reading of Section 155(3) and Rule 5 together, it is quite clear that the petition under Section 155(3) raising the dispute has to be within 15 days and therefore, there is no question of the Secretary referring any dispute to the Commission. Secondly, the learned counsel for the Commission would submit that in so far as Section 155(3) does not stipulate any referring authority, who is to refer the dispute, the question of anybody referring any dispute does not arise and the dispute has to be raised by the person challenging the resignation by filing a petition as prescribed under Rule 5 within 15 days. The learned counsel for W.P.(c)No.33122/08 4 the Commission also relies on the decision of the Supreme Court in Brundaban Nayak V. Election Commission of India and another [AIR 1965 SC 1892] and the decision of this Court in Gopi V. Maneed Grama Panchayat [2002(2) KLT 753]. He also refers to Section 36 of the Kerala Panchayat Raj Act, in respect of disqualification of a member, wherein a referring authority is prescribed, which is conspicuously absent in Section 155(3) of the Act, which would go to show that what is contemplated under Section 155(3) is a petition by the person disputing the resignation which only has been explained in Rule
5.
5. A counter affidavit has been filed by the 1st respondent also in which it is specifically stated that on receipt of Ext.P5 from the petitioner, he had forwarded the same by fax on the same day itself namely, 26.8.2008. However, he adopts the very same contentions raised by the Commission on the question of maintainability of a request for reference of the dispute to the Commission before him.
6. I have considered the rival contentions in detail.
7. The facts are not in dispute. The 1st respondent admits that Ext.P5 has been received on 26.8.2008 at 3.15 p.m. W.P.(c)No.33122/08 5 and the Commission submits that the fax reached the Office of the Commission at 6.35 p.m. on 26.8.2008, although in the inward register the date of receipt is recorded only as '27.8.2008' which is because of the fact that the fax reached the Commission after office hours. Therefore, it is admitted fact that Ext.P5 reached the Commission within 15 days of the date of the resignation taking effect. Therefore, the question to be considered is as to whether Ext.P5 forwarded by the 1st respondent to the 2nd respondent can be regarded as a reference under Section 155(3), notwithstanding Rule 5 of the Rules and Ext.P6 which was filed only on 8.9.2008. According to the petitioner since Section 155(3) contemplates reference of a dispute, the petitioner having raised a dispute by filing Ext.P5 and the same having been received by the Commission within 15 days of the date of taking effect of the resignation, the requirement of the Section is satisfied and therefore there is no limitation as held in the impugned order. On the other hand, Standing Counsel for the Commission would submit that the Scheme of Section 155 does not contemplate a referring authority and therefore, the reference mentioned in Section 155 (3) can only be on a petition by the person, who W.P.(c)No.33122/08 6 raises the dispute within the time stipulated and in that view, going by the Rules, which can only be regarded as one explaining the Section, what is relevant for the purpose of Section 155(3) is a petition submitted by the party raising the dispute before the commission which has to be within 15 days from the date of coming into effect of the resignation and not a petition before the Secretary raising a dispute, who has no jurisdiction in that regard. The learned counsel for the petitioner contends that Section 155(3) refers to a reference of a dispute whereas Rule 5 refers to a petition. According to him, if either of the two is done within 15 days from the date of coming into effect of the resignation, that would satisfy the requirement of the Section and the Rule. He further submits that the fact that no referring authority is stipulated in Section 155 does not make any difference, in so far as the resignation is accepted by the Secretary and the Secretary alone can entertain any dispute in respect of the same, who would be the appropriate authority to refer the dispute raised under Section 155(3). The learned counsel for the petitioner also refers to the decision of this Court in Annamkutty V. Baby [2000(3) KLT 18] interpreting the erstwhile Section 155(4)of the Act, which was in the statute book W.P.(c)No.33122/08 7 prior to its amendment on 24.3.1999 which is exactly identical to the present Section 155(3), in which decision this Court held that such dispute can be referred by any person, who is aggrieved, either by the President (who was the then authority competent to accept the resignation) or by the person who submits resignation, if he raises a dispute regarding resignation.
8. Section 155 reads thus:
"155. Resignation of President, Vice-President or members.- (1) The President or Vice President or any other member of a Panchayat may resign his office by tendering his resignation in the prescribed form to the Secretary and the resignation shall take effect from the date on which it is received by the Secretary and the Secretary shall immediately report the fact to the Panchayat and the State Election commission.
(2) The President, the Vice-President or the member who resigns shall either in person or, if such resignation letter has been attested by a Gazetted Officer, by registered post, tender or send as the case may be, his resignation to the Secretary and the Secretary shall give acknowledgment for the receipt of the same.
(3) If any dispute regarding any resignation arises, it shall be referred to the State Election Commission for decision and its decision thereon shall be final:
Provided that no dispute, referred after the expiry of fifteen days from the date on which the resignation takes effect, shall be entertained by the State Election Commission".
(Emphasis supplied) W.P.(c)No.33122/08 8 Rule 5 of the Kerala Panchayat Raj (Resignation of President, Vice President or Members) Rules 2000 reads thus:
"5. Settlement of dispute regarding resignation.- (1) Any person having a dispute regarding the resignation of the President or the Vice-President or the Member may, within fifteen days from the date on which the resignation is deemed to have taken effect, prefer a petition before the State Election Commission for its decision and the decision of the Commission thereon shall be final.
(2) Every petition filed before the State Election Commission under sub-rule (1) shall be disposed of by the Commission as early as possible".
Section 155(3) specifically mentions reference of a dispute regarding resignation which arises, to the State Election Commission. Rule 5 refers to a petition filed by any person having a dispute regarding the resignation. As such, the Rule cannot be said to be in consonance with the Section . But I am of opinion that a harmonious construction of the two is called for, which is to the effect that either the Secretary can refer the dispute by himself or if he does not refer the dispute, the person raising the dispute can file a petition before the Commission within 15 days.
9. I am of opinion that the Scheme of the Act generally also contemplates both reference as well as a petition to the W.P.(c)No.33122/08 9 Commission. One example is Section 36 relating to disqualification of a member. There, when a question arises as to whether a member has become disqualified under Section 30 or Section 35 except Clause (n) thereof, any member or any person entitled to vote can file a petition and the Secretary or an Officer authorised by the Government in this behalf can refer such a question to the State Election Commission for a decision. There the question that arises can be placed before the Commission either by reference by Secretary or by petition by a member or person entitled to vote and the Commission is required to dispose of the petition or the reference. Taking an analogy from the same, I am of opinion that the Scheme of the Act contemplates either reference or a petition, both of which would be maintainable. That being so, I am inclined to adopt the view that under Section 155 and Rule 5, the Secretary may refer the dispute regarding resignation,which arises,to the Commission or the person himself may file a petition before the Election Commission under Rule 5, either of which, if is within the time stipulated in the proviso to Section 155(3), that would be liable to be considered by the Commission on merits. I am supported in this view by the judgment of this Court in Annamkutty's case W.P.(c)No.33122/08 10 (supra), wherein interpreting the erstwhile Section 155(4) which is in pari materia with the present Section 155(3), a learned Judge of this Court held that the President who was to accept the resignation or the party can raise a dispute which has to be considered by the Commission. I do not think that the decision in Brundaban Nayak's case (supra) relied upon by the Counsel for the Commission lays down any different law. In that decision what was considered was as to whether a reference under Article 192(1) to the Governor on the question of disqualification of a member of a House of the Legislature under Article 191 has to be made by the Speaker only after the issue is raised in the Assembly and whether it is the Governor or the Election Commission who has to conduct the enquiry on the reference. The Supreme Court held that under that Article all that is relevant is that a question of the type mentioned has to arise, irrespective of who raises it and the Speaker should refer it to the Governor and that question has to be decided by the Governor. That decision is not an authority for the proposition that in the absence of a referring authority no reference can be made nor that the reference has to be by petition of an aggrieved person. The reliance on Gopi's case (supra) is also misplaced as no W.P.(c)No.33122/08 11 similar issue arose for consideration in that case.
In the above circumstances, I am satisfied that Ext.P10 order of the Commission is not sustainable. Accordingly, Ext.P10 is quashed and the 2nd respondent - State Election Commission is directed to reconsider Exts.P5 and P6 on merits in accordance with law, as a valid reference under Section 155(3).
The writ petition is disposed of as above.
S. SIRI JAGAN, JUDGE Acd W.P.(c)No.33122/08 12