Document Fragment View

Matching Fragments

13. The appellant as PW1 gave evidence regarding the no- confidence motion moved by respondents 1 to 3 and certain others. According to PW1, respondents 1 to 3 moved no- confidence motion based on Exhibit P17 notice without the knowledge and consent of the Congress Party or the Congress Parliamentary Party and that such a move was made against the decision of the Congress Party and the Congress Parliamentary Party. The DCC President has also issued Exhibit P18 direction to all the elected Congress Party members of Manimala Grama Panchayat to vote against the no-confidence motion and it was also made clear in Exhibit P18 that, those who violate the direction contained therein will be treated as having voluntarily given up their membership of the Congress Party. The DCC President, who was examined as PW2, has deposed that he had issued Exhibit P18, directing the Congress members in the Panchayat to vote against the no-confidence motion which was placed for discussion on 28.7.2011 and that the said motion was moved without the knowledge or consent of the Congress Party. PW2 further deposed that, in Exhibit P18 it has stated that the Congress Members who disobey his direction contained therein will be treated as having voluntarily given up their membership of the Congress Party and disciplinary proceedings will be initiated against them. PWs 1 and 2 have stated that the direction issued by them are sent by post and copies of those directions were given to the Secretary of the Grama Panchayat and also to the Secretary of the Block Panchayat who tabled the no-confidence motion for discussion. Exhibit P28 is the postal receipts evidencing that such direction was sent to respondents 1 to 3 by the appellant and PW2.

"8. However, placing heavy reliance on another Single Bench decision in Naseera Beevi v. State Election Commission, 2004 KHC 171 : 2004 (1) KLT 1108, the learned Senior Counsel for the appellants would contend that every objectionable conduct does not automatically lead to the inference of voluntarily leaving the political party. In the above case a few members of a political party decided to form a separate group in the 'parliamentary party' of that political party and that was informed to the Secretary of the Grama Panchayat. It was in that context the learned Single Judge took the view that 'there is a distinction between membership in the parliamentary party and the membership in the political party. What has been made objectionable under law is the voluntary leaving of the membership in the political party. Leaving the parliamentary party may be a circumstance, which may indicate that the incumbent has left the political party'. It is to be noted that the letter of the group was dated 08/01/2003 and the No Confidence Motion was on 13/01/2003. The members who had decided to sit as a separate block had voted in favour of the No Confidence Motion moved by the rival political parties and thereafter those members had been removed from the primary membership of the political party on 18/01/2003. The petitions for disqualification was filed on 24/01/2003 before the State Election Commission. A subsequent election to the posts of President and Vice President of the Panchayat was held on 07/02/2003, wherein the aforementioned members were elected as the President and the Vice President with the support of the rival political parties. It appears the learned Single Judge had omitted to take note of the fact that the conduct of the revolting members was not the letter given to the Secretary to the Grama Panchayat to form a separate block; those members had in fact supported the No Confidence Motion moved by the rival political parties. Thus the inevitably inferential conduct was the shifting of loyalty. Loyalty to the party is the norm. To vote against the party is disloyalty. It was this principle as stated in Griffith and Ryle on Parliamentary Functions, Practice and Procedure which was taken note of by the Supreme Court in the celebrated decision in Kihota Hollohan v. Zachillhu, 1992 KHC 694 : 1992 Supp. (2) SCC 651 : AIR 1993 SC 412. The Apex Court held that '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

34. We shall now deal with the finding of the State Election Commission that, respondents 1 to 3 moved the no-confidence motion against their own party without the knowledge and consent of Congress Party or DCC President and their above conduct would abundantly prove that they have voluntarily given up their membership of the party. As already noticed, the main allegation in Exhibits P3 to P5 Original Petitions is that, respondents 1 to 3 with the support of Kerala Congress moved a no-confidence motion against the appellant and ousted him from the post of the President of Manimala Grama Panchayat, which was done without the permission of the Parliamentary Party or the Political Party. By the aforesaid act, they have voluntarily abandoned or given up their membership in Congress Party and moving with the support of others against the will of UDF in the Panchayat they have committed defection. The fact that respondents 1 to 3 have supported the no-confidence motion against the appellant is not in dispute. This is further born out from Exhibits P25, P26 and P27 ballot papers issued to respondents 1 to 3. The total number of elected members in Manimala Grama Panchayat is 15, out of which UDF secured 11 seats. The no-confidence motion, which is the subject matter in the present case, is one moved by respondents 1 to 3 along with 5 other members of UDF. When the said motion was tabled for discussion, respondents 1 to 3 along with 6 other members of UDF supported the same and the appellant was ousted from the post of the President of Manimala Grama Panchayat. Therefore, the no-confidence motion was supported by 9 out of 11 members of UDF and the appellant and one Valsala voted against the said motion. In Exhibits P3 to P5 Original Petitions the appellant has no case that the no-confidence motion moved by respondents 1 to 3 was supported by any member of the Opposition Party. Admittedly there was no destabilisation of power in the Grama Panchayat and UDF continued in power. Going by the pleadings in Exhibits P3 to P5 Original Petitions and Exhibit P6 objection, the seat sharing arrangement within the coalition, i.e., between INC and Kerala Congress (M), which allows the members within the coalition to hold the post of the President of the Grama Panchayat, is also not in dispute.

36. In paragraphs 22 to 28 of this judgment, we have dealt with in detail, the decisions relied by the learned Senior Counsel for the appellant. In Varghese's case (supra) the writ petitioners who are UDF members supported the no-confidence motion moved by the rival political group LDF. In this case, there was floor-crossing and political disloyalty and the writ petitioner was elected as the Chairperson of Adoor Municipality with the support of rival political party and the ruling political group, i.e., UDF lost power. In Dharma Mani's case (supra) the writ petitioners who are UDF members moved a no-confidence motion against the President and Vice-President of Parassala Block Panchayat along with 5 members of the rival political group LDF and the writ petitioner in W.P.(C)No.337/2009 was elected as the President of Block Panchayat with the support of LDF. In this case, there was floor-crossing and political disloyalty. Moreover, the ruling political group, i.e., UDF lost power. In Nazeerkhan's case (supra) the writ petitioner who is a UDF member contested to the post of Vice -President against the official candidate of his own party and was elected on the basis of the votes cast in his favour enbloc by the rival political group LDF. In this case, there was floor-crossing and political disloyalty. In Shiney Augustine's case (supra) the writ petitioner who is a LDF member and the President of Vamanapuram Grama Panchayat moved and supported a no-confidence motion against the Vice- President of the Grama Panchayat, joining hands with the members of the rival political group UDF. In this case, there was floor-crossing and political disloyalty. The learned Single Judge upheld the order of the Election Commission disqualifying the writ petitioner on the ground that she had voluntarily given up her membership of the political party. In appeal, the Division Bench of this Court, relying on the judgment in Chinnamma Varghese's case (supra) held that, in the absence of proper pleadings and evidence on record the above said finding of the Election Commission cannot be sustained. In Chinnamma Varghese's case (supra) the appellant, though contested the election as an independent candidate, was admittedly supported by the political party CPI (M), which in turn had a political arrangement with CPI. The rival political group UDF moved a no- confidence motion. The appellant not only signed the no- confidence motion but also voted in favour of said motion, which resulted in the ouster of the President of the Panchayat who belonged to LDF. In this case, there was floor-crossing and political disloyalty. Moreover, the ruling political group, i.e., LDF lost power. The order passed by the State Election Commission disqualifying the appellant was upheld by the learned Single Judge. In appeal, the Division Bench of this Court set aside the judgment of the learned Single Judge and held that, it is only the specific overt act of voting or abstaining from voting contrary to any written directions issued by the political party on a no-confidence motion that tantamounts to defection. In Muhammedkunhi's case (supra) the writ petitioners who belong to IUML signed a no-confidence motion moved by the rival political group BJP and voted in favour of that motion against the President of Meenja Grama Panchayat along with 4 members of BJP and 2 members of CPI (M), who belong to rival political parties, and the motion was adopted. Another motion was moved against the Vice-President, which was also adopted. There was floor-crossing and political disloyalty. Moreover, the ruling political group, i.e., UDF lost power. Similarly, in Celene Joy's case (supra) the writ petitioners contested in the election to Pampadumpara Grama Panchayat in the ticket of Congress (I) Party. In the election to the post of the President, the writ petitioner in W.P.(C)No.30341/2011 contested against the official candidate of his own party and was elected as the President of the Grama Panchayat. An independent member, who won election by the support of BJP, a rival political party, also voted in his favour. The Commission found that, as borne out by Exhibits X1(a) minutes of the Parliamentary Party, the party members sought the opinion of the Congress (I) Party about the candidate to be supported and Exhibit X1(b) minutes reflect that the decision of the Congress (I) Party to support Sreemandiram Sasikumar was intimated to all party members. Therefore, from the conduct of the writ petitioner that they did not vote in favour of the said candidate an inference can be drawn that they have voluntarily given up membership of the political party. Added to this, the writ petitioners were supported by an independent candidate who won election by the support of Bharatiya Janata Party, which is not a constituent of United Democratic Front. In this case also there was floor-crossing and political disloyalty. Therefore, as rightly contended by the learned counsel for respondents 1 to 3, the principle laid down in the aforesaid judgments, which are on entirely different factual matrix, cannot be relied on to arrive at a finding that respondents 1 to 3 have voluntarily given up membership of their political party.