Jijesh, Rasheed A., Subhash and Rakesh v. The Commandant, KAP 4th Battalion, Mangattuparambu, Kannur District, and Deputy Commandant; Ranjith K.; Sudheesh V.; Baiju P.L.; Mahesh; Vinod; Mohanan V.K.; Nisab Palakkal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936** ## **WP(C).No. 18703 of 2014 (K)** ## **----------------------------** ## **PETITIONER(S):** **--------------------------** ## **1. JIJESH,** - **HAVILDAR 7405, S/O.GANGADHARAN,AGED 26 YEARS,** - **F COMPANY, KAP 4TH BATTALION, MANGATTUPARAMBU, KANNUR DISTRICT.** **2. RASHEED.A., PC 7757, S/O.P.K.HAMZA, AGED 34 YEARS,C COMPANY, KAP 4TH BATTALION, MANGATTUPARAMBU,** **KANNUR DISTRICT.** **3. SUBHASH,PC 7612,S/O.RAJARAM, AGED 28 YEARS, HQ COMPANY,KAP 4TH BATTALION, MANGATTUPARAMBU, KANNUR DISTRICT.** **4. RAKESH, TECHNICAL HAVILDAR 1302, S/O.SASIDHARAN, AGED 33 YEARS,HQ COMPANY, KAP 4TH BATTALION, MANGATTUPARAMBU,** **KANNUR DISTRICT.** **BY ADVS.SRI.BABU S. NAIR SMT.SMITHA BABU** **RESPONDENT(S):** - **----------------------------** **1. THE COMMANDANT,** - **KAP 4TH BATTALION, MANGATTUPARAMBU,** - **KANNUR DISTRICT.PIN-670 001** **2. THE DEPUTY COMMANDANT,KAP 4TH BATTALION, MANGATTUPARAMBU, KANNUR DISTRICT.PIN-670 001** **3. RANJITH K., HAVILDAR 6567, RETURNING OFFICER, F COMPANY,KAP 4TH BATTALION, MANGATTUPARAMBU, KANNUR DISTRICT.PIN-670 001** **4. SUDHEESH.V.,HAVILDAR 6842, RETURNING OFFICER, C COMPANY, KAP 4TH BATTALION, MANGATTUPARAMBU,** **KANNUR DISTRICT.PIN-670 001** **2/-** **sts** **-2-** ## **WP(C).NO.18703/2014** **5. BAIJU.P.L.,HAVILDAR 3781, RETURNING OFFICER, HQ COMPANY, KAP 4TH BATTALION, MANGATTUPARAMBU,** **KANNUR DISTRICT.PIN-670 001** ## **6. MAHESH,** - **P.C.7746, HQ COMPANY, KAP 4TH BATTALION, MANGATTUPARAMBU, KANNUR DISTRICT.** **7. VINOD, TECHNICAL HAVILDAR 1291, HQ COMPANY,** **KAP 4TH BATTALION,MANGATTUPARAMBU, KANNUR DISTRICT. PIN-670 001** ## **8. MOHANAN.V.K.,** - **HAVILDAR 3769, F COMPANY, KAP 4TH BATTALION, MANGATTUPARAMBU, KANNUR DISTRICT.PIN-670 001** ## **9. NISAB PALAKKAL,** - **P.C.7643, C COMPANY, KAP 4TH BATTALION, MANGATTUPARAMBU, KANNUR DISTRICT. PIN-670 001** **R2 BY GOVERNMENT PLEADER SRI.K.C.VINCENT R6 TO R9 BY ADV. SRI.K.R.SUNIL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 18703 of 2014 (K)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** - **P1: COPY OF THE BYE-LAWS OF THE KERALA POLICE ASSOCIATION PUBLISHED BY DEPARTMENT OF HOME AS PER G.O.(MS)NO.134/79/HOME DATED 4.10.1979.** - **P2: COPY OF THE FINAL VOTERS LIST PUBLISHED BY THE FIRST RESPONDENT BY ORDER NO.G3-3807/2013/KAP IV DATED, 14.7.2014.** - **P3: COPY OF THE COMMUNICATION GIVEN BY THE 3RD RESPONDENT TO THE FIRST PETITIONER DATED, 17.7.2014.** - **P4: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT DT. 18.6.2014.** - **P5: COPY OF THE COMMUNICATION ISSUED TO THE 2ND PETITIONER BY THE 4TH RESPONDENT DATED, 17.7.2014.** - **P6: COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT DATED, 18.7.2014.** - **P7: COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT TO THE 3RD PETITIONER DATED, 17.7.2014.** - **P8: COPY OF THE COMMUNICATION ISSUED BY THE 5TH TO THE 4TH PETITIONER DATED, 17.7.2014.** - **P9: COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER TO THE 1ST RESPONDENT, DT. 18.7.2014.** - **P10: COPY OF THE REPRESENTATION SUBMITTED BY THE 4TH PETITIONER TO THE 1ST RESPONDENT, DT. 18.7.2014.** - **P11: COPY OF THE ELECTION SCHEDULE OF THE KERALA POLICE ASSOCIATION 2014-15** - **P12: COPY OF THE ORDER OF THE FIRST RESPONDENT AS NO.G3/3807/2014 DATED, 24/7/2014** **RESPONDENT(S)' EXHIBITS ANS ANNEXURES:** **----------------------------------------------------------------------** - **ANNEX R2(A): COPY OF THE COMMUNICATION ISSUED BY THE RETURNING OFFICER TO THE ADDITIONAL 8TH RESPONDENT INFORMING HIM REJECTION OF THE NOMINATION PAPER OF THE 1ST PETITIONER.** - **ANNEX R2(B): COPY OF THE SCHEDULE OF ELECTION WAS ISSUED BY THE RETURNING OFFICER FOR THE PRESENT YEAR 2014-15** **2/-** **sts** **-2-** ## **WP(C).NO.18703/2014** ## **ANNEX R2(C): COPY OF THE ORDER NO.G3/3807/14 DATED 24/07/2014** **ANNEX R2(D): COPY OF THE RELEVANT PAGES OF ORDER NO.G3/3807/13/KAP-IV DATED 14/07/2014 IN WHICH NAME OF PERSONS WHOSE NAME APPEARS AS PERSONS SUBMITTED APPLICATION FOR CORRECTION OF THEIR NAME.** **ANNEX R2(E): COPY OF THE ORDER NO.G3/3807/13/KAP-IV DATED 04/07/2014 PUBLISHING THE DRAFT VOTERS LIST WANTING TIME TILL 10/07/2014** **ANNEX R2(F): COPY OF THE FINAL VOTERS LIST ORDER NO.G3/3807/13/KAP-IV DATED 14/07/2014** **ANNEX R2(G): COPY OF THE PERSONS WHO REPRESENTS AS PERSONS ELECTED FROM THE RESPECTIVE UNITS AS CONSTITUENCY.** **ANNEX R2(H): COPY OF THE PETITION FILED BY SRI.JIJESH KELAMBATH, HAVILDAR NO.7405.** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **A.MUHAMED MUSTAQUE, J.** = = = = = = = = = = = = = WP(C).No.18703 of 2014-K. = = = = = = = = = = = = = Dated this the 19[th] August, 2014. ## **J U D G M E N T** This writ petition is filed by the police personnel working in the KAP IVth Battalion at Mangattuparamba in Kannur District challenging the rejection of the nomination for the election of office bearers of Kerala Police Association. 2. Kerala Police Association has been formed by virtue of Government Order, GO.(Ms).No.134/79/Home dated 4.10.1979. Police Forces (Restriction of Rights) Act, 1966 is a Central enactment came into force in Kerala on 1.9.1979. Article 33 of the Constitution provides that the Parliament may by law determine to what extent any of the rights confirmed by Part III of the Constitution shall, in their application to the members of the Armed Force or the Forces charges with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge **WP(C).No.18703/2014-K.** 2 of their duties and the maintenance of discipline among them. Section 3 of the Police Force (Restriction of Rights) Act, 1966 restrict the right to form association, freedom of speech, etc., without the express sanction of the Central Government or of the prescribed authority. The Government of Kerala being the prescribed authority under the Rules by the aforesaid Government Order gave permission to form association to the Police personnel in Kerala. 3. Respondents 1 and 2 are the Commandant and Deputy Commandant of the KAP IVth Battalion. They have raised a preliminary point regarding the maintainability of the writ petition by way of an additional statement. According to the additional statement, the writ petition is not maintainable against the Police Association as the same is not a statutory body nor it discharges any public or statutory function. 4. The Kerala Police Association as revealed from the bye-law is the only Association of the Police Force in Kerala. **WP(C).No.18703/2014-K.** 3 The election is conducted by dividing into units as per the structure of the Police Force. The object and purpose of the Association is mentioned in clause 5 of the bye-laws. It is stated that it shall function as a non political association for inter-alia to promote unity, co-operation, create responsibility, discipline, patriotism among the police personnel in the State of Kerala and also to have a cordial relationship with the civil society. It is also mentioned that it shall strive for the common good of the police personnel within the frame work of discipline in the police force. It is also the object to promote the social and moral values of the police personnel and to provide social security measures to the family of the police personnel who die-in-harness. 5. The learned Special Government Pleader would submit that there is no public discharge of function or obligation by the association and would argue that merely because the sanction has been obtained as per the Police Force Act for forming an association that does not itself entail in constitution of an 'authority' falling within the **WP(C).No.18703/2014-K.** 4 meaning of the State in Article 12 of the Constitution. The learned Spl.Govt.Pleader relies on decisions of the Hon'ble Supreme Court in **Dwarka Prasad Agarwal and another v. B.D.Agarwal and others** [(2003) 6 SCC 230], **Federal Bank Ltd. v. Sagar Thomas** [(2003) 10 SCC 733], **State of Rajasthan v. Bhawani Singh and others** (1993 Supp (1) SCC 306) and **M.D.Maharashtra Cotton Growers Market Federation Ltd. v. Choughule Popatrao Annasaheb and another** [(2003) 6 SCC 247]. 6. The learned counsel for the petitioner Sri.Babu S.Nair relying on the decisions of the Hon'ble Supreme Court in **Ajay Hasia v. Khalid Mujib** (1981 SC 487) and also **in General Manager, KSCM Ltd. v. Satrughan Nishad** (AIR 2003 SC 4531) would argue that the existence of pervasive control by the State on the freedom of police personnel itself gives the association the character of the 'other authority'. According to the learned counsel, the byelaws itself has been framed by the Government. The learned counsel also by referring to various provisions in the **WP(C).No.18703/2014-K.** 5 bye-laws such as nature of branch, designated officer to hear the appeal on rejection of the nomination etc., submits that the very foundation of association is with reference to exercise of duties attached to the officer concerned with reference to his designation in the police force. Therefore, he would say officials discharging other function under the bye-laws are not in a private capacity but in their official capacity with an object to sustain the discipline of the force as otherwise contemplated under the Article 33 of the Constitution as well as in the Police Act. 7. In **Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and others** [(2002) 5 SCC 111) after examining of the line of decisions including some of the decisions relied by the counsel for both parties laid down the test to determine 'other authority' as State as defined under Article 12 and held as follows: “Whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be **WP(C).No.18703/2014-K.** 6 pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.” The only document available before this Court is the byelaws of the association. It is nowhere indicated in bye-laws that the Government has any deep or pervasive control over the association. The reference to the police officers in their official capacity in bye-laws is not as a nominee of the Government in the association. On the other hand, the reference to the official designation is for the purpose of identification of the police personnel to discharge various duties and functions attached to the police personnel who are members of the association. The regulatory power exercised by the Government for giving sanction to form association in terms of the Article 33 of the Constitution and also under the Police Forces Act is only as legal sanctity for the police personnel to form an association, but for which the association would have become illegal. But that does not mean the association itself is controlled by the **WP(C).No.18703/2014-K.** 7 Government. Approval granted for the association itself will not confer it as an 'other authority' as defined under Article 12 of the Constitution. There are no functional aspects qualifying them to call as an 'other authority'. The functional aspect must be discharged of public duty or that of a sovereign function. The association duly constituted under any statute if involved in discharge of public functions or duties that may attract Article 226 of the Constitution if there is any aberrations of the rights and duties attached under the bye-laws available to the members of that association. The bye-laws, on the other hand, clearly spells out the object and function of the association which is purely social and recreational and no way connected with the discharge of a public duty or a public function. If that be the case, I am of the view the writ petition is not maintainable in respect of the election of the association. Merely because the respondents 1 and 2 who heard the appeal rejecting the nomination with reference to their duty attached under the bye-laws terming them as an appellate 8 ## **WP(C).No.18703/2014-K.** authority identifiable with reference to the designation in an official capacity cannot give rise to a cause of action for the petitioners under Article 226 of the Constitution. Their function is purely in private domain and not referable under official capacity. In view of the above, this writ petition is dismissed as not maintainable. In view of the dismissal of the writ petition, interim orders are vacated. **Sd/-** **A.MUHAMED MUSTAQUE, (Judge)** **Kvs/-** **// true copy //**