Dismissed

Smt.Celene Joy v. the Kerala State Election Commission

Kerala HC13 Oct 2014WA/405/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed appeals filed by Panchayat members disqualified by the Election Commission for alleged defection. Upholding the Single Judge's order, the Court ruled that voting against the party's chosen candidate, based on inconclusive internal party minutes and alleged failure to abide by DCC directions, constituted voluntary giving up of party membership.

What did the court decide?

The writ appeals challenging the disqualification order were dismissed, upholding the State Election Commission's decision.

Smt.Celene Joy Vs the Kerala State Election Commission — Election Law | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶4

MONDAY, THE 13TH DAY OF OCTOBER 2014/21ST ASWINA, 1936

¶5

WA.No. 405 of 2012 ()

¶6

------------------------------AGAINST THE JUDGMENT IN WP(C).NO.30350/2011 DATED 08-02-2012.

¶7

APPELLANT/PETITIONER:

¶8

SMT.CELENE JOY, W/O.JOY, CHAIRMAN, STANDING COMMITTEE FOR WELFARE & MEMBER, WARD NO.14, PAMPADUMPARA GRAMA PANCHAYATH, IDUKKI.

¶9

BY SRI.S.SREEKUMAR, SENIOR ADVOCATE. ADVS. SRI.SAJIV.C.K., SRI.P.PRIJITH, SRI.P.MARTIN JOSE, SRI.ANEESH JAMES.

¶10

RESPONDENTS/RESPONDENTS:

¶11

1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, PIN - 695 001.

¶12

2. TOMY THOMAS, CHAIRMAN, STANDING COMMITTEE FOR DEVELOPMENT, MEMBER, WARD NO.16, PAMPADUMPARA GRAMA PANCHAYATH, IDUKKI DISTRICT, PIN -685 556.

¶13

R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC. R2 BY ADV. SRI.GEORGE POONTHOTTAM.

¶14

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2014, ALONG WITH W.A. NO. 406 OF 2012 AND CONNECTED CASES, THE COURT ON 13/10/2014 DELIVERED THE FOLLOWING:

¶15

rs.

¶16

WA.No. 405 of 2012

¶17

APPENDIX

¶18

PETITIONER'S ANNEXURES:-

¶19

ANNEXURE I COPY OF THE MINUTES OF THE MEETING DATED 06/11/2010 OF THE PARLIAMENTARY PARTY OF INC OF PAMPADUMPARA GRAMA PANCHAYATH. ANNEXURE I(a) COPY OF THE ENGLISH TRANSLATION OF ANNEXURE-I. ANNEXURE II COPY OF THE DEPOSITION OF PW-2. ANNEXURE II(a) COPY OF THE ENGLISH TRANSLATION OF ANNEXURE-II. ANNEXURE III COPY OF THE DEPOSITION OF PW-4. ANNEXURE III(a) COPY OF THE ENGLISH TRANSLATION OF ANNEXURE-III.

¶20

RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

Ashok Bhushan, Ag. C.J & A.M. Shaffique, J.

¶25

=-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶26

=-=-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 13^th day of October, 2014.

¶27

J U D G M E N T

¶28

Shaffique, J.

¶29

These appeals arise out of a common judgment dated 8.2.2012. By the impugned judgment, the learned Single Judge upheld an order passed by the State Election Commission declaring the appellants/writ petitioners as disqualified on account of the defection in terms of Section 3 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short 'the Act').

¶30

The short facts involved in the above appeals would disclose that an election was held to the Local Self Government Institutions in the year 2010 in respect of Pambadumpara Grama Panchayat, Idukki District. The appellants were elected as members of the Panchayat. They were belonging to the political party Indian National Congress (I) (for short 'INC'). Out of the 16 seats, INC candidates won in 10 seats, Kerala Congress (for short 'KC') in one seat and an independent supported by Congress in one seat. All of them together are the allies of United Democratic Front (for short 'UDF'). 3 seats were won by Left Democratic Front (for short 'LDF') and one seat was won by an independent candidate supported by Bharatiya Janata Party (for short 'BJP'). Since the INC party got

¶31

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶32

-: 2 :-

¶33

majority to rule the Panchayat, it was decided to convene a parliamentary party meeting to elect the President, Vice-president, Parliamentary party office bearers and Whip. A meeting was convened on 6.11.2010 in the presence of Advocate Sri. M.N. Gopi, the General Secretary of the District Congress Committee (for short 'DCC'). In the meeting, all officers except parliamentary party leader and whip were selected unanimously. Since there was two nominations for the post of Parliamentary party leader and Whip, a suggestion was made to place the matter at the disposal of the DCC. The meeting was adjourned to 8.11.2010. The committee also authorized Adv. Sri. M.N. Gopi to contact the DCC and to get instructions. Adv. Sri. M.N. Gopi discussed the matter with the DCC and the President of the DCC issued a direction to see that Mr. Sreemandiram Sasikumar is elected as President of the Grama Panchayat. It is said that a parliamentary party meeting was convened by Sri. M.N. Gopi on 8.11.2010 and reported the matter to the above said committee. The appellants purposefully abstained from attending the meeting and it was unanimously decided to elect the aforesaid Sreemandiram Sasikumar as Parliamentary party leader and the 2^nd respondent as Whip of the Panchayat. It is further contended that the 2^nd respondent has issued whip in

¶34

W.A. Nos. 405, 406, 407, 413 & 415 of 2012 -: 3 :-

¶35

writing to all members to vote in favour of Mr.Sreemandirum Sasikumar. On 8.11.2010, the Presiding Officer called for the meeting to elect the President of the Panchayat. Contrary to the decision of the Parliamentary party and instruction of the political party, as against the official candidate of INC Mr. Sreemandiram Sasikumar, the name of Mr. C.S. Yasodharan who is also of INC party was proposed and seconded by the members. Mr. C.S. Yasodharan was unwilling to withdraw the candidature and decided to contest in the voting. 5 members of INC and one independent voted in favour of Mr. Sreemandiram Sasikumar whereas the appellants, the KC members and the independent candidate supported by BJP voted in favour of Mr. C.S. Yasodharan, who got 7 votes and he was declared to be elected with the majority of one vote. This, according to the petitioner, was clearly against the whip issued and also amounts to defection in terms of Section 3 of the Act.

¶36

Objection was filed by the appellants inter alia contending that though a meeting was convened on 6.11.2010, no decision was taken to approve the candidature of President. It was decided that the INC candidate should be the President and Vice President would go to KC candidate. It is further contended that there was no meeting on 8.11.2010. No whip was

¶37

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶38

-: 4 :-

¶39

received and they did not receive any notice regarding the same. Since no communication was obtained from the DCC, majority of the members of UDF decided to support Mr. C.S. Yesodharan as President and Sreelatha Surendran as Vice president. Therefore, according to them, there was no decision at all on 8.11.2010 by the DCC to elect Mr. Sreemandiram Sasikumar and therefore the name of Mr. C.S. Yasodharan was proposed and he was elected. They did not act in any manner defeating the interest of INC and therefore no case is made out for treating that they have acted against the interest of the INC Party.

¶40

Five cases were filed by the 2^nd respondent herein against all the 5 members of INC who voted in favour of Mr. C.S. Yasodharan. The Election Commission, after having considered the entire material on record, came to the finding that no whip was issued for the candidature of Mr.Sreemandiram Sasikumar. But, coming to the issue regarding voluntarily giving up of membership from the party, it was found that the appellants having violated the directions issued by the DCC, had acted against the interest of INC party and therefore they are disqualified to continue as members of the Panchayat as provided under Section 3 of the Act. It is impugning the aforesaid order of the Election Commission that the

¶41

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶42

-: 5 :-

¶43

writ petitions were filed.

¶44

The learned Single Judge, by the common judgment, dismissed the writ petitions inter alia observing that when it is an admitted fact that the appellants did not vote in favour of Mr.Sreemandiram Sasikumar, an inference can be drawn that they have voluntarily given up their membership of the political party. That apart, since they were supported by an independent candidate who won by the support of BJP, which was not a constituent of UDF, the finding of the Commission cannot be unsettled. Further, it is found that though the appellants have voted in favour of another INC candidate, it is clear that there has been a defiant attitude on the part of the appellants in not voting for the candidate as directed by the INC party. Such facts also amount to voluntarily giving up membership of the political party to which they belong. Since the order passed by the Election Commission does not suffer from any infirmity, there is no necessity to interfere with the said order, is the finding of the learned Single Judge.

¶45

The main contention urged on behalf of the appellants is that though a decision was taken on 6.11.2010 to elect the President depending upon the instruction issued by the DCC, no such decision has been taken by DCC and therefore in the absence of any

¶46

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶47

-: 6 :-

¶48

such instruction, it could not be stated that the appellants have violated any direction issued by the DCC for electing a particular person as President of the Panchayat. In the absence of any such decision, it was well within the powers of the members to have nominated a person of their choice, which will not in any way amount to voluntarily giving up membership in the political party. It is further argued that the Election Commission has not considered the evidence and materials placed on record properly and the decision therefore amounts to perversity, which should have been taken note by the learned Single Judge and arrived at a different finding. Since such jurisdiction has not been exercised by the learned Single Judge, the appellants are entitled to invoke appellate jurisdiction of this Court to set aside the findings of the Election Commission.

¶49

Heard the learned senior counsel Sri. S. Sreekumar appearing for the appellants, Sri. George Poonthottam, learned counsel appearing for the 2^nd respondent and Sri. Murali Purushothaman, learned counsel appearing for the Election Commission.

¶50

The learned counsel for the appellants made specific reference to the pleadings and evidence on record. The main contention urged is based on the minutes of meeting held on 6.11.2010. The said

¶51

W.A. Nos. 405, 406, 407, 413 & 415 of 2012 -: 7 :-

¶52

meeting was attended by all the INC candidates who won the election. The minutes of the said meeting indicates that there was no consensus to elect a parliamentary party leader as the name of Sreemandirum Sasikumar as well as C.S. Yasodharan were suggested by the party members. Therefore, it was unanimously decided that all of them will accept the decision of the DCC and further decided to request the DCC to take a decision as to who should be the parliamentary party leader. There was consensus as far as the Deputy Leader was concerned and the members accepted the nomination of the name of Smt. Usha Rani. In regard to Whip as well, there was dispute and the members decided to request the DCC to nominate the party whip. There was no dispute with reference to the election of Treasurer. Finally the meeting was concluded and there was a decision to hold the meeting on 8.11.2010 at 8 a.m. The learned senior counsel specifically referred to the words written as “8/11/2010 8 a.m. ന വ�ണ�� യ��ഗ� യ�ര��”, which means that “the meeting will again be held at 8 a.m. on 8/11/2010”. These words, according to the learned senior counsel, were specifically incorporated into the minutes aforesaid subsequently as it was not decided to have a meeting on 8.11.2010 at 8 a.m. Therefore, it is contended that on 8.11.2010,

¶53

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶54

-: 8 :-

¶55

there was no notice for any meeting at all and no such meeting was ever held.

¶56

Another contention is based on the evidence of Mr. Roy K. Poulose, who is the DCC President and the evidence of Adv. Sri. M.N. Gopi, who is the General Secretary of DCC. The main argument is that though in the meeting held on 6.11.2010, it was decided to accept the decision of DCC regarding Parliamentary Party Leader and Whip, there was no such decision by the DCC and in such circumstances, there was no reason to support Mr. Sasikumar, who was not a person nominated by the DCC. Hence, it is argued that when DCC has not given their decision in the matter regarding as to who should be the candidate, the appellants have chosen their own candidate who won the election to the post of President. Merely for the reason that an independent candidate of BJP supported Sri. C.S. Yasodharan, in a democratic process it cannot be stated as wrongful. It is not a case where the appellants have sought for the support of BJP candidate, whereas it is an instance where there was dispute between two factions of the Congress candidates and that election was held between them. In the absence of a decision taken by the DCC in this regard, the question of defection does not arise at all.

¶57

The whole argument is based on the

¶58

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶59

-: 9 :-

¶60

materials placed on record and therefore it is useful first to refer to the statutory provision and thereafter to consider whether the Election Commission has gone wrong in arriving at the decision as aforesaid. What has to be looked into is whether the decision of the Election Commission is based on materials or whether there is any perversity in arriving at such decision and whether relevant materials have been considered while passing the said order.

¶61

Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 reads as under:

¶62

“3. Disqualification on ground of defection:- (1) Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994), or in the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the time being in force, subject to the other provisions of this Act,-

¶63

(a). if a member of local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorized by it in this behalf in the manner prescribed, votes or abstains from voting.

¶64

(i) in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of standing Committee or the Chairman of a standing committee; or

¶65

(ii) in a meeting of a Pandhayat, in an election of its President, Vice President, a member of a standing committee; or the Chairman of the standing Committee; or

¶66

in a voting on a no-confidence motion against any

¶67

W.A. Nos. 405, 406, 407, 413 & 415 of 2012 -: 10 :-

¶68

one of them except a member of a Standing Committee.”

¶69

We are concerned with the first part of Section 3(1)(a). The question to be considered is whether the appellants being members belonging to INC party have voluntarily given up their membership of such party. In regard to the voluntarily giving up membership in a political party, the failure to adhere to the directions issued by the political party has also been considered to be a good ground for declaring a person as defective from the following judgments:

¶70

(i) Nazeer Khan v. Kerala State Election Commission and Another, (2008 (2) KLJ 916). (ii) Faisal P.V. v. K.A. Abdulla Kunhi & Another (2008 (3) KLT 534).

¶71

(iii) Biju R.S. & Others v. State Election Commission & Others, (2009 (3) KLT 29). (iv) Chinnamma Varghese v. Kerala State Election Commission & Others, (2010 (3) KLT 426). (v) Varghese V.V. & Another v. Kerala State Election Commission & Another, (2009 (3) KLT 1). (vi) Muhammedkunhi B. & Another v. K. Abdulla & Another, (2010 (4) KHC 307).

¶72

In Varghese's case (supra), a Division Bench of this

¶73

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶74

-: 11 :-

¶75

Court held as under:

¶76

“7. The Kerala Local Authorities (Prohibition of Defection) Act, 1999 was brought out “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 authorities”. S.3 deals with disqualification on the ground of defection. S.3(1)(a) reads as follows:-

¶77

¶78

¶79

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

¶80

-: 12 :-

¶81

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶82

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.”

¶83

The Election Commission in the order specifically comes to a finding on the basis of evidence of PW2, the President of DCC and PW4, the General Secretary of DCC that the DCC has authorized the members of INC Party to elect PW3, ie. Sreemandirum Sasikumar as President of the Panchayat. It is also found that the said decision has been conveyed to all the members by PW4 over phone. It is further found that the stand taken by the appellants that they were not informed about the decision of the DCC regarding the election to the post

¶84

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶85

-: 13 :-

¶86

of President is not believable. The Election Commission took note of the fact that when a decision was taken on 6.11.2010 to abide by the decision of DCC, it is futile to contend that they did not receive any decision of DCC before the election to post of President. Since PW4, the Secretary of DCC, was in charge of the election in the Panchayat and he was authorized by the President of the DCC to elect Mr. Sreemandirum Sasikumar, it was unethical on the part of the appellants to have obtained support of BJP candidate and also the KC candidate for support. It is also found in regard to the alleged fabrication of the minutes at X1 that even assuming that there was no decision to hold the next meeting on 8.11.2010, still when the members decided to abide by the decision of DCC, necessarily it assumes importance that the decision ought to have come prior to the time of election and therefore on facts and evidence, it was found that the appellants did not act in regard to the direction issued by the District Congress Party.

¶87

The thrust of the argument of the learned senior counsel for the appellants is based on the fact that the DCC has not taken any decision. It is argued that the President's opinion or the opinion of the General Secretary of DCC cannot be the decision of DCC. In fact, PW2, the DCC President, in his evidence, had clearly indicated that the INC Party was under the

¶88

W.A. Nos. 405, 406, 407, 413 & 415 of 2012 -: 14 :-

¶89

expectation that if Congress gets majority in the election, then the senior member Mr. Sreemandirum Sasikumar will be the President. Adv. Sri. M.N. Gopi, PW4, was entrusted with the responsibility of taking a decision regarding the election, as he was the General Secretary of DCC. He convened a meeting on 6^th and he participated in the meeting. PW2 received a report stating that the party could not take a decision in the matter. Hence, he has given information in writing on 7^th to Adv. Sri. M.N. Gopi and requested him to convene a meeting on 8^th morning and inform the members the decision that Mr. Sreemandirum Sasikumar would be the candidate of the party. In cross examination, he says that though no instructions were given before the election regarding the proposed President, there would be an idea as to who would be the President. Adv. Sri. M.N. Gopi was entrusted with the pre-election matters, which was given in writing. He had also stated in cross examination that Sri. M.N. Gopi was instructed in writing to convene a meeting on 7^th and inform the party decision. Sri. M.N. Gopi as PW1 stated that on 7.11.2010, out of the elected members, 6 members gave a letter to the President of DCC to nominate Mr. Sreemandirum Sasikumar as President. The said letter is produced as X2, though the marking was objected. He relied upon X3, a letter

¶90

W.A. Nos. 405, 406, 407, 413 & 415 of 2012 -: 15 :-

¶91

by which the DCC President took a decision regarding the same and intimated to him. According to him, on the basis of X3, he intimated the decision to all Panchayat members. In the meeting held on 8.11.2010, he reported this matter, which is evident from Annexure X1B. It is based on the aforesaid materials that the Election Commission had arrived at a finding that the DCC has taken a decision in the matter.

¶92

True that there is no material to indicate that the DCC has convened the meeting and a decision was taken in the matter. It was the President of the DCC who had informed the General Secretary of DCC that Mr. Sreemandirum Sasikumar should be candidate for the post of President. The short question is whether the appellants are justified in contending that the decision of the President of the DCC is not the decision of the DCC.

¶93

Powers and functions of the President and office bearers of the DCC have not been made available. At any rate, there is evidence to indicate that Adv. Sri. M.N. Gopi, who is the General Secretary, was in charge of the pre and post elections. He was in charge of conducting various meetings and when the General Secretary, in his evidence, has indicated that information has been given to all the members that Mr.

¶94

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶95

-: 16 :-

¶96

Sreemandirum Sasikumar shall be elected as the President and it is based on the direction issued by the President of the DCC and when such an evidence has been accepted by the Election Commission and is neither perverse nor based on irrelevant materials, we do not think that we should exercise the appellate jurisdiction to come to a different finding than what has been found by the Election Commission. The Election Commission further finds that even if there is interpolation in Annexure X1A minutes dated 6.11.2010 regarding the holding of meeting at 8 a.m. on 8.11.2010, all the members very well knew that a decision from the DCC had to come prior to the time of election and therefore such a contention on the side of the appellants cannot be sustained.

¶97

Learned counsel for the 2^nd respondent, while supporting the order of the Election Commission as well as the findings of the learned Single Judge, relied upon the objection filed by the appellants, wherein they have taken a contention that to their knowledge, no meeting was held on 8.11.2010 and no intimation was given to them regarding the meeting, which was alleged to have taken place on 8.11.2010. It is their case that they did not purposefully abstain from attending the meeting. It is argued that when the General Secretary, Adv. Sri. M.N. Gopi, in his evidence,

¶98

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶99

-: 17 :-

¶100

has clearly indicated that all the members were informed about the decision of the President of DCC, and in the meeting held on 6.11.2010, they have decided to adhere to the decision of the DCC, the President's opinion ought to have been accepted as the opinion of DCC. All decisions of DCC are communicated to the respective parties by the President and merely for the reason that there was nothing in writing to indicate that DCC was held and then a decision was taken is purely a hyper technical approach. The meeting was held on 6.11.2010 and the election date was on 8.11.2010. Therefore when the President communicates to the General Secretary as to who should be elected as the President, the said decision is to be complied by all the members.

¶101

It is not in dispute that this case depends upon the evidence available on record. The DCC President and the Secretary clearly indicated about the candidature of Mr.Sreemandirum Sasikumar, which cannot be brushed aside as perverse, when the Election Commission takes a decision on the basis of the said evidence. In the absence of any perversity in the said finding of fact based on evidence, the writ court cannot exercise the power of judicial review and re-appreciate the evidence.

¶102

W.A. Nos. 405, 406, 407, 413 & 415 of 2012

¶103

-: 18 :-

¶104

In the said circumstances, we do not find any merit in the grounds urged on behalf of the appellants and accordingly, the appeals are dismissed.

¶105

Ashok Bhushan, Ag. Chief Justice

¶106

A.M. Shaffique, Judge.

¶107

Tds/