Ambika Samdev v Kerala State Election Commission and K. Jayakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931** **WP(C).No. 2976 of 2010(V)** **-------------------------** ## **PETITIONER(S):** - **-------------------** **AMBIKA SAMDEV, MEMBER, WARD NO.2, POOVAR GRAMA PANCHAYAT,THIRUVANANTHAPURAM DIST.** **BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENT(S):** **-------------------** **1. KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY,KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** **2. K.JAYAKUMAR, KOLLAMVILAKATHU VEEDU, ARUMANNOOR, POOVAR.P.O,THIRUVANANTHAPURAM DIST.** **ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R2 SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 2976 OF 2010 (V) =====================** ## **Dated this the 30[th] day of January, 2010** ## **J U D G M E N T** Petitioner is working as a Helper in the Anganvadi Center No.22 of Parassala Grama Panchayat. In the general elections held in 2005, petitioner was elected a member of the Grama Panchayat from Ward No.2. Subsequently, w.e.f. 6/8/08, she was also elected as the President of the Panchayat. While so, the 2[nd] respondent herein, a voter in Ward No.2 of the Panchayat filed Ext.P1 petition before the 1[st] respondent under Section 36 of the Kerala Panchayat Raj Act (hereinafter referred to as 'the Act' for short) with a prayer to declare that the petitioner is liable to be disqualified under Section 35(o) of the Act. 2. Among the various allegations, in so far as it is relevant, the allegation which ultimately found favour with the 1[st] respondent is that though petitioner was a member of the Grama Panchayat, she received travelling allowance on 26 days during the period from 4/1/2006 to 20/1/2007 and at the same time, marked her attendance in the Anganvadi as she was present in the Anganvadi on those days. It is stated that this showed that **WPC 2976/10** **:2 :** she did not do anything to claim Travelling Allowance and that as a result of this, Panchayat suffered a loss of RS.6,600/-. Proceeding further, it was alleged that the petitioner herein wifully misused her official power and caused monitory loss to the Panchayat by siphoning the funds of the Panchayat to her pocket. 3. On receipt of notice from the 1[st] respondent, petitioner entered appearance and Ext.P2 is the counter filed by her. In Ext.P2, she answered the aforesaid allegation stating that on all the days pointed out by the petitioner in Ext.P1 petition, she had availed of casual leave from the Anganvadi and undertook various journeys for the Panchayat and received travelling allowance from the Panchayat. Evidence was adduced, and on behalf of the 2[nd] respondent, himself and two other witnesses were examined, Exts.P1 to P8 and X1 to X8 were marked. On behalf of the petitioner, she herself was examined and Exts.R1 to R6 documents were marked in evidence. Finally, the parties were heard, and by Ext.P4, the 1[st] respondent allowed the petition and disqualified the petitioner under Section 36 read with Section 35 (o) of the Act. It is challenging this order, the writ petition is filed. 4. The main contentions raised by the counsel for the **WPC 2976/10** **:3 :** petitioner are against the finding in Ext.P4 that loss was caused to the Panchayat rendering her liable for disqualification. It was contended that the finding of tampering with the documents is erroneous and that even if the finding in Ext.P4 that she has tampered with the attendance register in the Anganvadi is accepted, that does not lead to the conclusion that Panchayat suffered loss as alleged against her. It was contended that in the light of her specific case that she had undertaken journey on behalf of the Panchayat and the evidence available, the finding that the Panchayat suffered loss is unsustainable. It was also contended that the finding that the petitioner had tampered with the documents referred to in Ext.P4 should not have been arrived at in the absence of an expert opinion on the issue of tampering. Lastly, it was contended that in the absence of an audit and finalisation of loss in terms of Section 215 of the Act, proceedings against a member under Section 35(o) of the Act, was premature and unwarranted. 5. On the other hand, on behalf of the 1[st] respondent, standing counsel entered appearance and argued in support of Ext.P4. He also produced the original documents relied on by the **WPC 2976/10** **:4 :** 1[st] respondent. According to the learned counsel, the findings in Ext.P4 are consistent with the evidence available and therefore do not call for interference in a proceedings under Article 226 of the Constitution of India. It was contended that unlike Section 34(p) where a finding of loss may be necessary, under Section 35(o), all that is necessary is the factum of loss, to render a person liable for disqualification. 6. On behalf of the 2[nd] respondent, Sri.Pirappancode V.S. Sudhir entered appearance and argued the matter. He also referred me to Ext.P4 and contended that the order does not call for any interference. 7. I have considered the submissions made. 8. The first issue which requires to be dealt with is whether the 1[st] respondent was justified in arriving at the conclusions as reflected in Ext.P4 order. As already seen, though there were five allegations of loss contained in Ext.P1 petition filed under Section 36 of the Act, ultimately, the only allegation that was accepted by the 1[st] respondent is the allegation that the petitioner caused loss to the Panchayat by receiving travelling allowance on various days during the period from 4/1/2006 to **WPC 2976/10** **:5 :** 20/1/2007. The defence of the petitioner in so far as this allegation was that she had availed of casual leave from the Anganvadi, was present in the Panchayat, undertook the journey and received travelling allowance as admissible under the Rules. It was in the context of this contention of the petitioner that the attendance register and other documents which are marked as X1 to X8, were summoned and marked in evidence. 1[st] respondent has referred to these documents with reference to each days, in relation to which the petitioner is alleged to have received travelling allowance from the Panchayat while she was present at the Anganvadi. In respect of such dates, with reference to the documents which were available before it, the 1[st] respondent has concluded that the petitioner has tampered with the attendance register. It is specifically found that initially the petitioner had signed her attendance and erased that entry and overwritten the word 'CL' to indicate “Casual Leave”. 9. Learned counsel for the Election Commission made available before me the attendance register relied on by it. I have gone through those attendance registers. A plain reading of the entries made in the attendance register supports the conclusions **WPC 2976/10** **:6 :** drawn by the Election Commission in Ext.P4. Therefore, the finding of the Election Commission that there has been tampering of attendance register is fully justified and deserves acceptance. 10. Proceeding further, the Election Commission has held that this overwriting is clearly the result of an afterthought when the petitioner came to know that she would be taken to task for claiming travelling allowance from the Panchayat after marking her attendance In the attendance register of the Anganvadi. Thereafter, reference has been made to the documents and finally the Election Commissioner has held that these facts also show that she had not actually undertaken the journeys. After making reference to the findings of RW1, PW3, Exts.R1 and R2, the 1[st] respondent concludes by stating thus: This analysis of the evidence clearly proves that the petitioner has succeeded in establishing his case that the respondent has caused loss to the Panchayat by claiming travelling allowance for journeys actually not undertaken by her and that the respondent has created false records to justify the travelling allowance claimed for journeys not undertaken. More over, the respondent has not produced any evidence to show that she has actually undertaken these journeys. Hence I come to the conclusion that the respondent has actually caused loss to the Panchayat. This issue is found against the respondent. 11. Thus, with reference to the documents and evidence **WPC 2976/10** **:7 :** that was available, the Election Commission has found that there is tampering of evidence and petitioner did not undertake the journey and the petitioner received travelling allowance from the Panchayat. The other contention was that the theory of tampering of the documents do not lead to the conclusion that the Panchayat had suffered any monitory loss. It is to be stated that the defence of the petitioner was that she was on leave on the respective days. When this was the only contention which is found to be wrong, the natural consequence is that the theory of travel on behalf of Panchayat is wrong. Therefore, I am not inclined to accept this contention either. 12. In the light of the aforesaid materials and the conclusions thus arrived at, by no stretch of imagination can this Court exercise power under Articles 226 and 227 and can come to a conclusion that the findings of the Election Commission are either arbitrary or perverse warranting interference in a writ proceedings. 13. The other contention raised by the learned counsel for the petitioner is that before accepting the theory of tampered document, the Commission should have sought expert opinion. **WPC 2976/10** ## **:8 :** Counsel also relied on the judgment of the Apex Court in _**Thiruvengadan Pillai v. Navaneethammal and another**_ (2008(4) SCC 530) in this context. While appreciating this contention raised by the learned counsel for the petitioner, it should be borne in mind that the only issue that the Commission was called upon to decide with reference to the aforesaid documents was whether the petitioner was actually present in the Anganvadi or whether she was on casual leave as claimed by her. A plain look at the document in question shows that the letters “C and L” were written after erasing what was originally written in the document. This clearly suggests nothing less than tampering, and for arriving at such a conclusion, I do not think that it was necessary to call for any expert opinion. Even otherwise, when these documents are available in the proceedings, to which the petitioner is a party, if the petitioner had such a case, she ought to have made an application to the Election Commissioner, which also was not done. Therefore, it is too late in the day for the petitioner to raise this plea. 14. The last contention was with reference to Section 215 of the Kerala Panchayat Raj Act. Section 215 provides for **WPC 2976/10** **:9 :** accounts and audit. Sub Section 11 provides that an aggrieved person, may make an application to the District Court. Sub Section 13 provides that appeal against the order of the District Court will lie to the High Court. Learned counsel contended that unless in an audit as contemplated in Section 215 is held and that the audit report has attained finality, no proceedings under Section 35(o) will lie against a member. On a reading of Section 35, I am not able to infer such a conclusion. Section 35(o) only provides for subject to the provisions of Section 36, a member shall cease to hold office if he is liable for the loss caused to the Panchayat. Therefore, on an application made under Section 36, if the petitioner is able to substantiate his case that a member has caused loss to the Panchayat, the Election Commission is perfectly within its rights to entertain a plea under Section 35(o) of the Act. I also notice that under Section 34 providing for disqualification of candidates, sub Section (p) requires that a person should have been found liable for loss to suffer disqualification as provided there in. Therefore, the terminologies in Section 34 and 35 being different, and in view of the only requirement of loss caused to the Panchayat as provided under **WPC 2976/10** **:10 :** Section 35(o), I am not in a position to accept this plea either. I do not find any ground to interfere with. Writ petition fails and is dismissed. ## **ANTONY DOMINIC, JUDGE** Rp