Dismissed

Varghese K v. @ Thankachan Kanjirakkakttu v State Election Commission, Kerala

Kerala HC18 Nov 2020WA/1472/2020

Case brief

AI extract

What is this about?

Appeal filed against order upholding disqualification of appellant for voluntarily giving up party membership. Court held that refusing to step down as Chairman despite party directive constitutes disloyalty and voluntary abandonment of party membership.

What did the court decide?

Appeal filed against Single Judge's order dismissing writ petition was dismissed; original order of disqualification upheld.

Varghese K v @ Thankachan Kanjirakkakttu Vs… — Pension and Retirement Benefits | Kerala HC (2020)

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WA.No.1472 OF 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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WA.No.1472 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 17598/2019(Y) OF HIGH COURT OF KERALA

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APPELLANT:

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VARGHESE K V @ THANKACHAN KANJIRAKKAKTTU AGED 61 YEARS S/O.THOMAS VARKEY, KANJIRAKKATTU HOUSE, MANJADI, THIRUVALLA - 689105, CHAIRMAN, THIRUVALLA MUNICIPALITY.

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BY ADVS. SRI. P.K SURESH KUMAR(SR) FOR APPELLANT, SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS SRI.R.B.BALACHANDRAN

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RESPONDENTS/RESPONDENTS:

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1 STATE ELECTION COMMISSION, KERALA, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, LMS JUNCTION, THIRUVANANTHAPURAM - 31.

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2 R.JAYAKUMAR S/O.K.R.C.PANICKER, JAYAVIHAR, KIZHAKKUMMURY, KAVUMBHAGAM P.O., THIRUVALLA - 689 102.

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SRI.MURALI PURUSHOTHAMAN, STANDING COUNSEL FOR R1, SRI.JOSEPH GEORGE FOR R2

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2020, THE COURT ON 18-11-2020 DELIVERED THE FOLLOWING:

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JUDGMENT

SHAJI P.CHALY,J

Writ appeal is filed by the petitioner in W.P.(C) No.17598/2019, challenging the judgment of the learned Single Judge dated 30.10.2020, whereby the learned Single Judge affirmed Ext.P6 order passed by the Kerala State Election Commission, Thiruvananthapuram, in O.P.No.42 of 2017 dated 19.6.2019, disqualifying the appellant to continue as a member of Thiruvalla Municipality as provided under section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, and consequently disqualified for contesting as a candidate in elections to any Local Self Government Institutions for a period of 6 years from the date of the order as provided under section 4(3) of Act, 1999. It is thus challenging the legality and correctness of the said order that the writ petition was filed. The learned Single Judge after taking into account the contentions put forth by the respective parties has entered into the following findings and conclusions at paragraphs 8 to 14 :

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“8. The Election Commission mainly relied on the following materials:

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Ext.A1 agreement to share the Chairmanship between Shri Varghese and Shri Jayakumar; Ext.A2 notice issued by DCC President directing Shri Varghese to resign from the Chairmanship and to support Shri Jayakumar for the election as the next Chairman; Ext.A5 decision of the Parliamentary Committee wherein Shri Varghese undertook to resign by 31/3/2017; Ext.A6

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decision of DCC President authorising Shri Jayakumar to move a noconfidence motion and; Ext.A9 letter dated 5/5/2017 issued by the DCC President directing Varghese to resign from the post of Chairman.

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The findings based on materials as above establish the following facts:

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i. On account of refusal to resign from the Chairmanship, noconfidence motion was moved against Shri Varghese.

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ii. Shri Varghese failed to resign from the post of Chairmanship in spite of notice issued by DCC President on 5/5/2017.

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Based on the findings as above, this Court has to consider whether

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the grounds as referable under the first limb of Section 3(1)(a) of the Prohibition Act are attracted or not.

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It is appropriate to refer the precedents related to the matter. In Eruthavoor Chandran and another v. Kerala State Election Commission and others [2018 (5) KHC 964], a Division Bench of this Court held that failure of a member of a political party to act in accordance with political directives amount to voluntarily abandoning membership of the political party to attract disqualification under the first limb of Section 3(1)(a) of the Act. In Faisal P.A. v. K.A.Abdulla Kunhi and another [2008 (3) KHC 267], a learned Single Judge of this Court held that if a member by his conduct defies the party directives and whip, he is deemed to have abandoned his party membership and is liable to be disqualified. Another Single Judge in Chenthamara K. and Others v.

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Kerala State Election Commission, Tvm and Others [2015 KHC 7086] held that disqualification for voluntarily giving up the membership of the political party to which one belongs is not dependent on any violation of the whip.

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Shri Varghese voted against him in the no-confidence motion to remove him as the Chairman. That does not mean he has not acted against the party. Shri Varghese cannot be disqualified on the ground of violation of the whip, but he can be disqualified for the reasons leading to the motion of no-confidence. The party again gave him an opportunity to step down through a letter dated 5/5/2017. He refused. This gave a cause of action. The series of defiance of party directives would constitute a separate cause of action. However, nothing impedes the Election Commission considering the facts related to each cause of action to fortify the findings related to the cause of action on which the petition was filed. The cause of action arose on 18/5/2017 is a result of a series of actions compelling Shri Varghese to step down from the post. The defiance of party directives by Shri Varghese to step down on 18/5/2017 is nothing but voluntarily giving up membership of his own party.

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A distinction has to be drawn as to the conduct which may attract only disciplinary action within the political party and the conduct which attract disqualification under the Prohibition Act. If a conduct has no relation or bearing with the membership in a local authority, that may only attract disciplinary action within the party. The learned Senior

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Counsel Shri Ramakumar appearing for Shri Varghese relying upon the dictum laid down by this Court in Chenthamara's case (supra) argued that Shri Varghese by his conduct supported the no-confidence motion against him and, therefore, no question of defection would arise in this matter.

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This Court cannot accept the above argument. A political party has a pivotal role in a representative democracy. In a representative democracy, votes are cast endorsing the ideology and promises made by the political party. The political party, therefore, is accountable to the Electorate. This Court in Joseph v. Babychan [2015 (1) KLT SN 21 (C.No.29)] observed that it is in order to check erosion of the values in the democracy, the Prohibition Act 1999 was brought into force. If a member chooses to withdraw from the political party, he in turn betrays the people who elected him. The conduct of a member of a political party in relation to the affairs of the local authority alone has to be considered for disqualification under the Prohibition Act. If a member of a political party defies any political directives in relation to the affairs of the local body, that amounts to voluntarily giving up membership of such political party. The refusal by Shri Varghese to step down from the post of Chairman in spite of the direction given by the President of his own party is nothing but voluntarily giving up membership of his own party. In the light of the discussions as above, the writ petition is only to be dismissed. Accordingly, the writ petition is dismissed. No costs. ”

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The paramount contention advanced by the appellant is that the order of the Election Commission disqualifying the appellant is not supported by any evidence and therefore, the learned Single Judge ought not have sustained the same. It is also submitted that there is absolutely no evidence to show that the appellant had voluntarily given up membership of his party. That apart it is stated that in order to infer the giving up of membership, there should be strong and compelling circumstances in existence and further that a mere disagreement with District Level leadership was not sufficient to constitute disloyalty to the whole of the party and therefore, such a conduct would not attract the imperatives contained under section 3(1)(a) of Act, 1999. It is thus argued that the directions issued by the District Congress Committee President to vacate the chairmanship for accommodating the 2^nd respondent was in contravention of a general direction issued by the State Level Apex Body of the party and therefore, the defiance shown to the DCC President's order cannot be termed as disloyalty to the party.

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Yet another predominant contention advanced is that the learned Single Judge has even gone to the extent of saying that if a member of a political party defies any political directives in relation to the affairs of the local body, that amounts to voluntarily giving up membership of such political party. But such a view cannot hold the test of law since the local body is governed by a statute and a political party which is an outside body as far as

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a statute is concerned has only a limited role to play in its administration. Therefore, the point that is raised is that the proposition that in directive is liable to be obeyed is an over statement. It was also submitted that there was no understanding and if at all there was such understanding, it has no sanctity as it is opposed to the acclaimed policy of the State. Leadership of the party and if at all any defiances therefore shown to be a directive of the District leadership on the basis of such an unlawful understanding would not amount to disloyalty to the party and would not attract the consequences of section 3(1)(a) of Act, 1999.

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The issue relates to the failure of the appellant to step down from the post of Chairman of Thiruvalla Municipality in spite of the direction issued by the District President of the Indian National Congress party under whose banner appellant was elected to the Municipal Council. Basic facts leading to the petition before the Kerala State Election Commission was that the appellant and the 2^nd respondent were elected councillors of Thiruvalla Municipality based on the election held in November, 2015 and they were elected as the candidates of Indian National Congress (INC). Indian National Congress was part of the political coalition by the name United Democratic Front (UDF). The said coalition secured majority seats in the municipal council and it seems an understanding was arrived in the coalition to share the post of chairman in the municipal council. According to which, for the first 30

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months, the nominee of Indian National Congress would be the Chairperson and the remaining 30 months, the post to be occupied by a nominee of Kerala Congress (M), a constituent of UDF. It appears, further understanding was made to share the post of chairperson between the appellant and the 2^nd respondent viz., R.Jayakumar for a period of 15 months, accordingly appellant became chairman for the initial period and in accordance with the understanding he had to resign from the post of chairman on 18.2.2017. However, appellant failed to resign and consequent to which the District Congress Committee intervened and directives were issued to the appellant to step down.

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It was the further case of the 2nd respondent that the District Congress Committee issued a notice to the appellant on 20.2.2017 but the appellant refused to resign. Thereupon the committee of counsellors was convened on 20.3.2017 and the appellant agreed in that meeting to resign on 31.3.2017. However, the appellant did not resign. Thereupon, on 1.4.2017 the District Congress Committee President authorised the 2^nd respondent i.e., R.Jayakumar to move a No Confidence Motion against the appellant. Accordingly, No Confidence Motion was moved and a meeting was convened on 18.4.2017. The appellant attended the no Confidence Motion and supported the motion moved against him, however the No Confidence Motion has failed as some of the councillors of Indian National Congress failed to

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attend the meeting and also for the reason that the opposition party abstained from the meeting. This resulted in the President of District Congress Committee issuing a direction to the appellant on 5.5.2017 to resign from the post of chairman of the Municipality within 10 days, which was received by the appellant on 8.5.2017 but the appellant refused to resign. It was accordingly that the 2^nd respondent filed a petition before the Election Commission to disqualify the appellant as per the first limb of section 3(1)(a) of Act, 1999 which deals with the voluntarily giving up of membership of the political party which fielded him as a candidate in the election.

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Taking into account the factual situations as were pointed out by the 2^nd respondent and the appellant, and after appreciating the evidence offered by the respective parties, the Election Commission has come to a clear cut finding that the conduct of the appellant was voluntarily giving up his membership in contemplation of section 3(1)(a) of Act, 1999. It was found by the State Election Commission that the evidence showed that the appellant had disobeyed the directions of the President of the District Congress Committee and the directions were bound to be followed as an elected member of the Indian National Congress. Therefore, according to the Election Commission, such a conduct on the part of the appellant was against the interest of the Indian National Congress. Therefore, an inference can be drawn that the appellant has voluntarily given up his membership from Indian

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National Congress. It was further found that a member belonging to a political party has to be loyal to his party and the moment he became disloyal, he/she would become subject to disqualification on the ground of voluntarily giving up his/her membership from the political party. Therefore, the conduct of the appellant by violating the directive of the party leadership is refusal to step down from the post of Chairman defying the directions of the party, which would clearly demonstrate that he became disloyal to the party which elected him as councillor of Thiruvalla Municipality.

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On going through Ext.P6 order of the Kerala State Election Commission, we are of the considered opinion that it was after elaborately discussing the facts and the law, the State Election Commission has come to an unequivocal finding that the act of the appellant amounts to the imperatives contained under the first limb of section 3(1)(a) of Act, 1999 and thus liable to be disqualified .

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The learned Single Judge had taken into account the legal situations available under the first limb of section 3(1)(a) of Act, 1999, applied and appreciated the facts and figures of the case to the same and found that the conduct of the appellant amounted to voluntarily giving up membership in contemplation of law. Anyhow the sole question is whether any interference is warranted to the judgment of the learned Single Judge ?

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We have heard learned Senior Counsel for the appellant Sri.P.K.Suresh Kumar, assisted by Adv.P.Haridas, learned counsel for the Kerala State Election Commission Sri.Murali Purushothaman, Sri. Joseph George, learned counsel for 2^nd respondent and perused the pleadings and materials available on record.

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The prime aspect argued by learned senior counsel for the appellant is that, even the communication issued by the President of the District Congress Committee to the appellant to conduct himself in a particular manner cannot be treated as a directive so as to have any consequences as provided under section 3(1)(a) since he is an elected representative of the people and no manner of directions can be issued by a political higher up to put the resignation. It was also pointed out that there should be sufficient evidence to apply the said provision against the appellant for voluntarily giving up his membership of the political party and that assertions or directions issued may not be sufficient. That apart it was submitted that there should be clear evidence to show that the conduct of the appellant should have been to give up membership of the political party by his own volition and not on the basis of any compulsion made by the political leadership in which he was a member.

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Learned Senior Counsel in this regard has invited our attention to a Division Bench judgment of this Court in Sandeep.M.T. and Others v.

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Kerala State Election Commission and Others [2015(5) KHC 133 (DB) to canvass the proposition that there should have been sufficient materials to indicate that the appellant has acted contrary to the directions issued by his political party by colluding or conniving with the rival political party , acted against the interest of his own political party, and has become disloyal.

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In our considered view the said judgment was rendered by the Division Bench of this Court in regard to the second limb of section 3(1)(a) dealing with the voting in violation of whip issued by the competent person and the consequences regarding voluntary giving up membership of a political party. Paragraph 11 of the said judgment is relevant to the context in order to distinguish the characteristic features of the first limb and 2^nd limb of section 3(1)(a) of Act, 1999, it reads thus:

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“11. Having regard to the factual and legal issues involved in the matter, it is needless to state that each case has to be considered on its own facts. As held in B. S. Yeddyurappa's case (supra) and other judgments namely Babychan Mulangasseri (supra), Joseph (supra) and Chinnamma Varghese (supra), submission of a no confidence motion by itself will not attract defection as contemplated under Section 3(1)(a) of the Act. As held in Lizy (supra) and Varghese (supra), there has to be sufficient material on record to suggest that a whip or a direction in writing to vote or abstain from voting has been issued to the appellants in accordance with Rule 3(1)(a) read with Section 4 of the Rules or that there has to be sufficient material to indicate that the

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appellants have acted contrary to the directions issued by their political party and by colluding or conniving with the rival political party, have acted against the interest of their own political party and has become disloyal.”

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An appreciation of the facts and figures arrived at by the Division Bench in the judgment in Sandeep M.T. it is\ clear that the observations and findings contained thereunder was solely in respect of the second limb of section 3(1)(a), which would not come into play at all in the case at hand. In order to understand the impact and facets of section 3(1)(a), the said provision is extracted hereunder.

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3. Disqualification on ground of Defection .[(1)]

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Notwithstanding anything contained in the Kerala Panchayat Raj Act,

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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,-

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(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 authorised by it in this behalf in the manner prescribed, votes or abstains from voting,-”

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It was with the noble object of curbing the defection and thus

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destabilising the elected body in power, the Act 1999 was brought into force. Therefore sustaining the credibility and the confidence reposed by the electorate on a candidate is the hallmark and the edict of the statute and accordingly the intention and the objective of the provisions of Act 1999 has to be gathered bearing in mind the said vital aspects . This we say because the Act, 1999 was brought into force on and w.e.f. 7.4.1999 to prohibit defection among the members of local authorities in the State of Kerala with the object of larger public interest to ensure continuance of the elected successful body, to which a tenure is fixed under the mandate of the Constitution of India. Moreover, we are of the opinion that if a member or group of elected members of a political party takes a contrary stand from that of the political party and act against the directions and policy of that political party to which they were members, it is nothing short of disloyalty in contemplation of the first limb of section 3(1)(a). The moment one became disloyal, decipherable from his conduct, to the political party to which he belonged, the inference is that he has voluntarily given up his membership. True, in order to arrive at an inference that an elected member has voluntarily given up his membership of the political party through which he was elected there should be clinching proof which cannot be substituted by any surmises and conjecture. But at the same time there cannot be any hard and fast rule with respect to the proof and each case may have its own facets to arrive at

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the right conclusions. So the endeavour of the statutory authority should be to find out the exact facts and figures involved in the case before it strongly infers that an elected member has become disloyal to the political party which has given a ticket to him or her to contest in the election. It has to be borne in mind that the electorate have exercised their franchise identifying the candidate as a representative of a political party, or an independent candidate, or of any other organisation but the electorate had voted in his or her favour expecting such candidate to continue as such if elected and therefore it is the duty of an elected candidate to retain the confidence reposed so by his electorate . This according to us are vital characteristic features of a vibrant democracy, and defection and disloyalty are nothing but an antithesis ,and an alien concept to democracy and the democratic form of governance apart from an immoral and unprincipled act. Therefore on analysing facts if there is sufficient proof demonstrating clearly the disloyalty, the court or the authority shall not hesitate to act in accordance with law, thus upholding the intention of the law makers and the spirit of law bearing in mind the true doctrine of democracy . Such a strict kind of approach to the law and interpretation alone will achieve the target expected of by the citizens of this country for whom the law is made, and thus sustain and retain the democratic principles and uphold the rule of law. This according to us, unequivocally is the thinking of an electorate who cherishes democracy and

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democratic values in its true spirit and empathetic sense. A candidate of a political party elected to any statutory institution shall always bear in mind that his political activities vis-a-vis his functions in the institution are regulated and guided by the laws of his party also, and his continuance as a member depends upon his continued unflinching loyalty to his party .

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15.Therefore analysing the judgment in Sandeep.M.T, supra and section 3(1)(a) of Act, 1999 as is argued by the learned senior counsel, it is clear that the scope of consideration of the first limb and the second limb of section 3(1)(a) are clearly different. Moreover, we have no hesitation to hold that in view of the contentions put forth by the appellant before the Election Commission and before the learned Single Judge it is clear and evident that the issues are surrounded absolutely on facts and it was appreciating clearly the circumstances and the evidence adduced by the parties, the Election Commission as well as the learned Single Judge have reached the finding that the appellant was disqualified in accordance with the first limb of section 3(1) (a) of Act, 1999. So also we are of the definite opinion that the issue on account of the legal requirements as discussed above was considered by the learned Single Judge taking into account the facts gathered by the Kerala State Election Commission and arrived at the definite conclusion approving the orders passed by the Kerala State Election Commission by analysing the facts and figures threadbare to which no interference is required at all. We

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also have no hesitation to hold that as in the instant case if any strategic or political equation was drawn for the stability of the governance, all elected candidates owing allegiance to the respective political groups are bound to subscribe to such views, and translate it in the real spirit to sustain the coalition formed prior to the election, which is a significant facet of democracy, required to balance the activities of those in power and to make their governance citizen friendly adhering strictly to the Constitutional values.

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Taking into account the entire aspects of the matter and the legal situations discussed above, we have no second thought that there is any legal infirmity in the exercise of the discretion of the learned Single Judge liable to be interfered with by this Court in an intra court appeal exercising the powers under section 5 of the Kerala High Court Act, 1958.

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Needless to say, appeal fails, accordingly it is dismissed.

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Sd/-

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S.MANIKUMAR CHIEF JUSTICE

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Sd/-

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SHAJI P.CHALY

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smv