K. Rajendran v. Kerala State Election Commission and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936 WP(C).No. 18145 of 2013 (P) ---------------------------- PETITIONER: -------------- K.RAJENDRAN, AGED 48 YEARS S/O KRISHNA PILLAI, PLAVARATHALACKAL PUTHEN VEEDU NEERAMANKUZHI, OOROOTTAMBALAM, NEYYATTINKARA TLAUK MEMBER, WARD NO 17, MARANALLUR GRAMA PANCHAYAT THIRUVANANTHAPURAM DISTRICT 695501 BY ADV. SRI.T.M.RAMAN KARTHA RESPONDENTS: ----------------- 1. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, CORPORATION BUILDING, PALAYAM THIRUVANANTHAPURAM 695001 REPRESENTED BY ITYS SECRETARY ## 2. K.P SAJI KUMAR, S/O KRISHNAN NAIR, SAJI BGHAVAN, PLAVARATHALA VANDANNOOR, RUSSELPURAM P.O, MEMBER WARD NO 14, MARANALLUR GRAMA PANCHAYAT THIRUVANANTHAPURAM 695512 ## 3. N. BHASURANGAN, MEMBER, WARD NO 1, MARANALLUR GRAMA PANCHAYAT MARANALLUR, THIRUVANANTHAPURAM 695512 4. MARANALLUR GRAMA PANCHAYAT, MARANALLUR, THIRUVANANTHAPURAM 695512 REPRESENTED BY ITS SECRETARY R2 & 3 BY ADV. SRI.P.V.BABY R2 & 3 BY ADV. SRI.A.N.SANTHOSH R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R4 BY ADV. SRI.V.PHILIP MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-07-2014, ALONG WITH WPC. 18146/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18145 of 2013 (P) ---------------------------- ## APPENDIX ## PETITIONER'S' EXHIBITS ---------------------------- EXHIBIT P1: TRUE COPY OF THE OP NO.113/2012 DATED 30-11-2012 EXHIBIT P2: A TRTUE COPY OF THE OP NO 120/2012 DATED 06-12-2012 - EXHIBIT P3: A TRUE COPY OF THE WRITTEN STATEMENT IN OP NO 113/2012 DATED 18-01-2013 - EXHIBIT P4: TRUE COPY OF THE WRITTEN STATEMENT IN OP NO 120/2012 DATED 18-01-2013 - EXHIBIT P5: TRUE COPY OF THE TREATMENT RECORDS ISSUED TO THE PETITIONER DATED 24-05-2011 - EXHIBIT P5(a): TRUE COPY OF THE TREATMENT RECORDS ISSUED TO THE PETITIONER DATED 28-11-2011 - EXHIBIT P6: A TRUE COPY OF THE DIPOSITION IN OP NO.113/2012 DATED 07-06-2013 - EXHIBIT P7: A TRUE COPY OF THE COMMON ORDER IN OP NO 113/2012 DATED 17-01-2013 ## RESPONDENTS' EXHIBITS: NIL ---------------------------- // TRUE COPY // TKS P.S. TO JUDGE ## **“C.R”** ## **C.T.RAVIKUMAR, J.** ---------------------------------------- W.P.(C)Nos.18145 & 18146 of 2013 ----------------------------------------Dated 8[th] July, 2014 ## **JUDGMENT** These writ petitions have matrice from the common order passed by the Kerala State Election Commission (for short the 'Commission') in O.P.Nos.113, 114, 119 and 120 of 2012. The former writ petition has been filed against the order in O.P.Nos.113 and 120 of 2012 and the latter writ petition has been filed against the order in O.P.Nos.114 and 119 of 2012. Since these writ petitions were already admitted, I do not venture to consider the question whether the petitioners ought to have filed separate writ petitions against the order in each of the above mentioned original petitions instead of filing joint petition, as mentioned above, for challenging the above mentioned common order. 2. The petitioners are the returned candidates respectively from ward Nos.17 and 19 of Maranallur Grama Panchayat in the election held in October, 2010. The petitioners and the common 2[nd] respondent in these writ petitions contested the election under the banner of the WP(C).No.18145 & 18146/2013 2 political party CPI(M). The common third respondent in these writ petitions was the candidate of CPI. The representation of different political parties in the Panchayat pursuant to the said election was as follows:- |CPI(M)|7| |---|---| |CPI|4| |Indian National Congress|3| |BJP|6| |Independent with JSS support|1| 3. The political parties CPI(M) and CPI constituted LDF coalition and owing to the majority it gained, the LDF coalition came to power in the Panchayat. The petitioner in the latter writ petition was elected as the President of the Panchayat. Admittedly, there was an understanding that he should quit the presidentship after a period of two years to enable the nominee of the CPI to become the President. Honouring the understanding, the petitioner in the latter writ petition resigned from the post of President. There was a similar understanding in the matter of sharing the term in respect of the post of Vice President as well, and therefore, the incumbent holding the office of Vice President had also resigned from the post and consequently, the Commission declared election to the said posts. Consequently, in terms of Rule 5(3) of the Kerala Panchayat Raj (Election of President and Vice-President) Rules, 1995 (for short `the Rules') the Returning Officer nominated by WP(C).No.18145 & 18146/2013 3 the Commission under Section 153(6) of the Kerala Panchayat Raj Act, 1994 issued notice regarding the place, date and time of the election meeting to all the members with clear days to be given mandatorily, before the day of meeting. Elections to the posts of President and Vice President were scheduled to be held respectively in the forenoon and afternoon of 26.11.2012. The cases on hand are offshoots of the election held on 26.11.2012 to the post of President of the Maranallur Grama Panchayat. Admittedly, the petitioner in the former writ petition did not cast vote and the petitioner in the latter writ petition, though cast his vote, it was declared as invalid owing to the failure to write his name and put his signature on the reverse side of the ballot paper, in the light of the provisions under Rule 10 of Kerala Panchayat Raj (Election of President and Vice President) Rules 1995 (for short the 'Rules'). Subsequently, the common respondent Nos. 2 and 3 filed the aforesaid Original Petitions under section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, for short the 'Act', for declaring that the petitioners herein incurred disqualification for being members of Maranallur Grama Panchayat. Those petitions were jointly tried and the impugned common order dated 17.7.2013 was passed by the Commission disqualifying the petitioners herein for being members of Maranallur Grama Panchayat as provided under section 3(1)(a) of the Act and also from contesting as candidates WP(C).No.18145 & 18146/2013 4 in an election to any local authorities for a period of six years from that day as provided by section 4(3) of the Act. These writ petitions are filed challenging the said order. 4. Regarding the nature of power to be exercised for considering the challenge against the impugned order passed by the Commission there can be no room for doubt and essentially, it is the power of judicial review that is to be exercised and it in nature is different and distinct from appellate and supervisory jurisdictions. This position is not at all disputed by any of the parties and in such circumstances, I will proceed to examine the sustainability of the challenge against the common order dated 17.7.2013 passed by the Commission, produced as Exts.P7 and P5 respectively in the former and latter writ petitions, within the realm of judicial review. I have heard the learned counsel for the petitioners, the learned standing counsel appearing for the Commission, the learned counsel for respondents 2 and 3 and the learned counsel for the fourth respondent. Except the petitioners the parties are same and they are arrayed in the same order in these writ petitions, but the same and some different documents are produced and marked differently in them. WP(C).No.18145 & 18146/2013 5 5. The core contention of the petitioner in the former writ petition is that the Commission went wrong in holding that he had abstained from voting on 26.11.2012 and thus shown disloyalty to the political party under whose banner he was elected to the Panchayat and thereby incurred disqualification for being member of the Panchayat. According to the said petitioner, the Commission perversely appreciated the evidence let in by him to establish that his absence on the date of election was not abstinence from voting and it had occasioned solely due to his hospitalisation. His oral testimony as RW1 and that of RW3, the doctor who treated him in the year 2004 and the documentary evidence on his side viz., Exts.R1 to R7 medical records were also not properly scanned and appreciated appropriately, it is contended. The said evidence, oral and documentary, points only to the irrefragable factum of his decumbiture during the period from 25.11.2012 to 1.12.2012, as an inpatient, in Medical College Hospital, Thiruvananthapuram and that alone had incapacitated him from attending the meeting and casting his vote at the presidential election on 26.11.2012, it is also contended. It is the further contention that when no contra-evidence was adduced by respondents 3 and 4 to rebut the evidence on his side the Commission ought to have accepted his version and ought not to have examined the matter further to see existence or otherwise of any motive or intention. WP(C).No.18145 & 18146/2013 6 In short, according to the petitioner, it is the perverse appreciation of the aforesaid evidence that led the Commission to reach the conclusion that the petitioner was a malingerer and it was only a ruse from his part to escape the clutches of law on the ground of defection. 6. As regards the petitioner in the latter writ petition he was disqualified for tendering invalid vote intentionally by not writing his name and putting his signature on the reverse side of the ballot paper in the same election that was held on 26.11.2012 and thereby showing disloyalty to his own party. The said petitioner mounted challenge against the common order raising the contention that the invalidation of the vote cast by him ought not to have been taken as a reason for holding that he was disloyal to the political party CPI(M) and thereby incurred disqualification due to defection under the Act as it was absolutely unintentional. According to the petitioner, the Commission, ought to have found that the purpose of incorporating such a condition in Rule 10 of the Rules is only to identify the member who has cast the vote using the particular ballot paper and therefore, when all the other members who participated in the election had, admittedly, put their names and signatures on the reverse side of the ballot paper there was no difficulty at all to identify him as the person who omitted to put the WP(C).No.18145 & 18146/2013 7 name and signature on the reverse side of the ballot paper and taking into account the fact that he had cast his vote in favour of the official candidate of CPI(M) viz., the third respondent, the Returning Officer for the said election ought not to have declared his vote as invalid and consequently the Commission ought not to have accepted contentions of common respondents 2 and 3 for disqualifying him for defection under sections 3(1)(a) and 4(3) of the Act. The respondents resisted the claims and contentions and contended that the petitioners are raising their contentions as if the power to be invoked by this Court for the disposal of the cases is appellate jurisdiction or supervisory jurisdiction and not judicial review. It is contended by them that the tenor of the contentions of the petitioners would reveal and suggest that they are virtually canvassing the position that the statutory mandates and also consequence of their non-compliance statutorily prescribed should be ignored. According to them, the impugned common order cannot be said to be illegal either factually or legally. As relates the contentions of the petitioner in the latter writ petition, the learned counsel for respondents 2 and 3 and also the Election Commission contended that he cannot be heard to say that he was ignorant about the statutory mandate under Rule 9(3) which makes it mandatory on each and every Panchayat member casting vote in an election of President or WP(C).No.18145 & 18146/2013 8 Vice-President in a Panchayat to put the mark **'X'** on the ballot paper on its receipt against the name of the candidate to whom he intends to vote and also to write his name and put signature on the reverse side of the ballot paper. Rule 10 of the Rules provides circumstances under which the votes shall be rejected and it indeed speaks of the inevitable consequence of failure to comply with the provisions under Rule 9(3) of the Rules. Obviously, the failure on the part of a member who cast vote in an election to write his name and put signature on the reverse side of the ballot paper would entail rejection of the vote as invalid, going by the said provision. In view of the said statutory provision and factual position established, the order of the Commission cannot be said to be illegal and warranting any interference, it is contended by the said respondents. 7. I will consider firstly, the contentions raised by the petitioner in W.P.(C)No.18145 of 2013 which was filed against the order in O.P.Nos.113 of 2012 and 120 of 2012 of the Commission. I have already adverted to the contentions and rival contentions. The crux of the contentions of respondents 1 to 3 is that the petitioner is a malingerer and he abstained from voting on 26.11.2012 without any sufficient cause and it was only to create a situation to avert the WP(C).No.18145 & 18146/2013 9 consequences of defection that he got hospitalised. Evidently, the contention of the petitioner in the former writ petition is that his evidence as RW1 and the evidence of RW3 together with Exts.R1 to R7 would reveal that he has been a heart patient since 2004 and he was earlier advised to undergo a surgery. At the very outset, it is to be noted that admittedly, Exts.R1 to R7 except Ext.R2 are only copies of the concerned documents relating to his treatment either in the Medical College Hospital, Thiruvananthapuram during the relevant period or in other hospitals on previous occasions. Indisputably, he had not produced the originals of such documents relating his hospitalisation in Medical College Hospital, Thiruvananthapuram during the period in question and no steps were also taken to cause their production. Despite the same, he has not chosen to prove the documents and also his case through any doctor who had examined him during the period from 25.11.2012 to 1.12.2012. Even in the absence of any explanation from the petitioner for such action/inaction evidently, the Commission considered and evaluated the said documentary evidence and also the evidence of RW1 and RW3 touching such aspects. The Secretary of the Panchayat and the District Secretary of CPI(M), Thiruvananthapuram were examined respectively as PW1 and PW3 and they have produced and proved certain documents. Ext.X7 is the copy of the 'direction in writing' issued by PW3 to the WP(C).No.18145 & 18146/2013 10 members of he Panchayat belonging to CPI(M) dated 24.11.2012 and Ext.X6 is the copy of the same, called as whip, given to the Returning Officer. Ext.X8 is the receipt given by the members of the Panchayat belonging to CPI(M) acknowledging the receipt of Ext.X7 and contained their signatures. About the contents and descriptions of documents in the common order no dispute was made. I will refer to other documents and evidence at the appropriate place. Ext.R2 is the CD of his Angiogram and at the same time, there is nothing on record to show that he had undergone a bypass surgery though as per Ext.R6 he was advised for the same. The undisputed and uncontroverted evidence would reveal that the petitioner was aware of the fact that his vote in the election to the post of President was crucial and also of the direction of PW3 to cast vote in favour of the third respondent in the election to the post of President, on 26.11.2012. The competency of PW3 to issue such a direction viz., whip is not disputed. Certain legal and factual positions relevant for the disposal of both these cases are noteworthy at this juncture. 8. As per clause (ivA) of Section 2 of the Act a “direction in writing” means a direction in writing, signed with date, issued to a member belonging to a political party or who has the support of the said political party by the District President or the District Secretary of the said political party for exercising the vote favourably or unfavourably or WP(C).No.18145 & 18146/2013 11 to abstain from voting. Section 3(1)(a) of the Act provides for disqualification on ground of defection of a member of Local Authority belonging to a particular political party who defied such a direction in writing. A conjoint reading of clause (ivA) of Section 2 and Section 3 of the Act will make it clear that defiance of the `direction in writing' could incur by exercising the vote favourably or unfavourably, and also by abstaining or failure to abstain, depending upon `the direction in writing'. In such circumstances, indubitably, the cumulative effect and impact of clause (ivA) of Section 2 and Section 3, of the Act would make member of a local authority who defied the `direction in writing' liable to be disqualified on ground of defection, in a proceeding under Section 4 of the Act. In this case, Exts.X6 to X8 with the evidence of PW3 revealed the issuance of a `direction in writing' to vote in favour of the third respondent in the election of President on 26.11.2012. The common case is that all the members of the Panchayat who belonged to the political party CPI(M) including the petitioner in W.P.(C)No.18145 of 2013 were assembled in EMS Academy on the previous day fixed for election viz., on 25.11.2012. It is thereafter that he got hospitalised and the aforesaid documents were produced by the said petitioner to prove the hospitalisation and about his physical conditions. The petitioner in W.P.(C)No.18145 of 2013 had filed his objection in WP(C).No.18145 & 18146/2013 12 O.P.No.113 of 2012. It is only stated therein that he is a heart patient and was admitted in the Medical College Hospital on 25.11.2012 for treatment of heart valve blockage and that was why he could not attend the meeting held on 26.11.2012. In the cross examination of PW4 Sajikumar before the Commission the following was made as suggestions on behalf of the petitioner in W.P.(C)No.18145 of 2013:- “On 25.11.12 at about 5.30 a.m, the petitioner went for a morning walk along with Sri.Bhasurangan and during that time he felt chest pain and after some time, at his instance, he was taken to his house in the car by Saji. He went to his house and took his medical records and referral card and when he came back with treatment records and referral card the car was seen locked and Sajikumar was not seen and thereupon he reached the hospital in an autorickshaw.” ( _emphasis added_ ) PW4 Sajikumar repudiated the said suggestions. True that suggestions in cross-examination of a witness of the petitioner can only be indicative of the case or the stand of the respondent on whose behalf the cross examination was conducted. But it can no extent whatsoever be a substitute for evidence if it is repudiated by the witness to whom it was made. After repudiating the suggestions PW4 Sajikumar who deposed that he took the petitioner in the former writ petition near to his house in a car to enable him to take his wife and to attend an engagement, stated during his cross examination on behalf of the petitioner that he waited WP(C).No.18145 & 18146/2013 13 for the petitioner there and then found the petitioner running away after jumping the compound wall of his own premises. Bearing in mind the suggestions put forth on behalf of the petitioner in the former writ petition to PW4 and the oral testimony of PW4 it has to be examined whether the Commission's finding that the petitioner had failed in proving that he was prevented by a genuine cause from attending the election meeting held on 26.11.2012 calls for interference in exercise of the power of judicial review. In such consideration, the decision of the Hon'ble Supreme Court in **P.John Chandy and Co.(P) Ltd** v. **John P.Thomas** reported in **(2002) 5 SCC 90** to the effect that drawing inference from the facts established is not purely a question of fact and in fact, it is always considered to be a point of law insofar as it relates to inference to be drawn from finding of fact, is also to be borne in mind. 9. After suggesting his case to PW4, as mentioned above, the petitioner set up a different case during his examination as RW1. Contrary to the suggestions put forth to PW4, the petitioner himself would admit the version of PW4 that on 25.11.2012 from EMS Academy he proceeded to his house in the car driven by PW4 only for taking his wife to attend an engagement. That apart, deviating from his suggestion to PW4 that he went to the house and took his medical records and WP(C).No.18145 & 18146/2013 14 referral card to the place where he alighted from the car driven by PW4, the petitioner would depose to the effect that all the relevant medical records relating his treatment and referral card kept in his house were not taken by him at that time to the hospital. He deposed to the effect that before reaching the house he had to return on feeling chest pain and to catch an autorickshaw to reach Medical College Hospital upon finding the absence of PW4 near the car and that the car was locked. Admittedly, during his cross-examination he had replied to one question that his wife was having some illness and at the same time, while answering another question he had stated that there was no reason for not asking the wife or son to accompany him to the hospital. He deposed that there are 2 or 3 hospitals on the way to Medical College Hospital from his house. He got no case that somebody brought the referral card or previous medical records prior to his taking the O.P. ticket and getting admitted, initially in Ward No.22 and then, in the Intensive Care Unit. On being questioned during the cross examination as to why he had not contacted at least the leaders of his own political party upon feeling chest pain he deposed that there was no charge in his mobile phone and at the same time, during the examination he would depose that he contacted his son through his mobile phone and asked him to reach the hospital with the treatment records. The petitioner had WP(C).No.18145 & 18146/2013 15 not cared to bring evidence through the doctors who treated him that his condition on 25.11.2012 and 26.11.2012 was so precarious that his admission and continuance in hospital, as an inpatient was inevitable. The petitioner has failed to examine any doctor who examined him during the period of his hospitalisation in the Medical College Hospital from 25.11.2012 to 1.12.2012 and he has not even cared to take steps to bring the connected records from the said hospital. Above all, he had attempted only to adduce evidence through RW3, the doctor who examined him in the year 2004 to lend support to his version made within the aid of the photocopies of certain records relating the hospitalisation in the Medical College Hospital that too, obtained through an attender attached to that hospital. The petitioner had no case that none of the doctors who examined him during the period was available for examination and even in such a case a doctor attached to that hospital who is conversant with the signatures of such doctors who examined him during the relevant period alone could have been examined to prove such documents and to depose based on them, if at all photocopies of such documents, on proper explanation, could have been admitted in evidence. When better evidence is withheld, it is only fair to presume that the petitioner has some motive for the non-production and further that if produced, his design would have been frustrated and WP(C).No.18145 & 18146/2013 16 defeated. Admittedly, the documents pertaining to his treatment in Medical College Hospital, Thiruvananthapuram among Exts.R1 to R7 are only the photocopies of certain documents allegedly obtained with the help of an attender of the said hospital. Though those documents produced on the side of the respondent viz., the petitioner in W.P.(C) No.18145 of 2013 were considered and elaborately discussed in the impugned order I think it only appropriate to make an observation that it was proper and desirable for the Commission to look into the admissibility of photocopies of documents as evidence after ascertaining the reasons for non-production of the originals or even certified copies of original documents and looking into the admissibility of secondary evidence. But, the fact is that without any serious objection those documents were marked. However, marking of such documents through the petitioner got no relevance as he was not competent to prove the contents. Evidently, the petitioner sought to borrow support to his evidence based on such documents through the evidence of RW3. The evidence of RW3 would not reveal that either at the relevant point of time or at any point of time he had any association with Medical College Hospital, Thiruvananthapuram. He happened to be the doctor who examined the petitioner in the year 2004 from the General Hospital, Thiruvananthapuram. There is no case for the petitioner that WP(C).No.18145 & 18146/2013 17 subsequently, he had undergone the treatment of RW3. Still the petitioner has chosen only to examine RW3 who treated him in the year 2004 to explain his condition from 25.11.2012 to 1.12.2012. To make matters worse, evidently, in unambiguous terms RW3 deposed before the Commission that on 26.11.2012 the condition of the petitioner was good and at the same time, he did not speak specifically of any critical situation that necessitated the sudden hospitalisation of the petitioner on 25.11.2012. The further evidence of RW3 is to the effect that in the year 2004 he detected 3 heart valve blocks on the petitioner and told RW1, the petitioner, that such a person might face instant death and advised him to undergo surgery. The petitioner who was advised thus got no case that he had undergone any such treatment or surgery, as advised, for the next almost six years or thereabouts and in fact, he had only undergone an Angiogram as is evident from Ext.R2. Though he was asked to undergo bypass surgery he had not turned up for the same at Sree Chithra Thirunal Institute for Medical Science & Technology, Thiruvananthapuram. In Ext.R4(a) it is stated that there was no referral letter. No reason has also been shown under Ext.R4(a) in order to give priority to the petitioner by the Chief Medical Officer who admittedly, did not examine the petitioner on 25.11.2012. In fact, the petitioner did not have a case that he was examined by the Chief Medical Officer. During WP(C).No.18145 & 18146/2013 18 the cross examination the petitioner would admit that he had no acquaintance with the Chief Medical Officer and in such circumstances, without a referral letter and without examining the petitioner how and why Ext.R4(a) was given by the Chief Medical Officer with instructions to give priority to him was not brought out in evidence. It is to be noted the fact that initially the petitioner was admitted in Ward No.22 and that fact was also admitted by the petitioner while being cross examined. Then what was the reason for the immediate shifting to the Intensive Care Unit ? The discharge summary issued at the time of his discharge from Medical College Hospital also did not reveal the condition of the petitioner on 25.11.2012 and also on 26.11.2012. The Commission has also taken note of the admission of the petitioner that on 24.11.2012, during night, he had conversation over phone with Balakrishnan, one Anil and Punavur Chandran, the petitioner in the latter writ petition who incurred disqualification and consequently disqualified on ground of defection under Section 3(1)(a) of the Act under the very impugned common order. Balakrishnan is admittedly a person belonging to BJP and Anil is admittedly a person belonging to Indian National Congress. The very case of respondents 2 and 3 before the Commission was that it was in collusion with members belonging to the political parties BJP and Indian National Congress that the petitioner caused the defeat of the WP(C).No.18145 & 18146/2013 19 official candidate of LDF coalition and, more over, the election of the independent member with the support of JSS, as President of the Panchayat. In the absence of satisfactory explanation from the petitioner for his absence in the election held on 26.11.2012 the Commission evaluated the evidence on record, viz., the oral testimonies of the petitioner in the former writ petition as RW1, PW4 and RW3 as also PW3 and the documentary evidence and arrived at the finding that the petitioner has failed to establish the immediate cause demanding admission in the Intensive Care Unit. Certainly the reason that he has been a heart patient since the year 2004 could not have been a reason for the petitioner to abstain from voting without any reason or justification especially in view of the 'direction in writing' issued by PW3. The Commission, therefore, arrived at the conclusion that it was done with the view to see that the official candidates are defeated in the election to the post of President and Vice President. I have already noted the evidence let in by the parties, the manner in which they were appreciated by the Commission as also circumstances where legal inferences could be drawn based on the facts established. In this case after making suggestions in cross examination of PW4 Sajikumar, as specifically noted above, which are indicative of the case of the petitioner in the former writ petition he attempted to let in evidence quite contrary WP(C).No.18145 & 18146/2013 20 to such suggestions and then, during his cross examination gave up such attempts and found favour with the version of PW4 on many a material aspects as specifically referred to hereinbefore. By such actions he took to a situation where he himself had to explain the real reason for his absence. Evidently, the petitioner took up the contention that he could not attend the election meeting held on 26.11.2012 and cast his vote owing to hospitalization. The ground of hospitalisation is the easiest one to be established if one was actually hospitalized and remained in the Intensive Care Unit and not at all a malingerer. The verity of his version could have been easily established by adducing better evidence by bringing in documents relating hospitalization in appropriate manner and proving them through the doctor who had treated him and issued them. Why he had withheld the better evidence that too, without any explanation whatsoever? The irresistible inference can only be that those documents were legally brought on record in appropriate manner and if the doctors who examined were called upon to prove and explain such documents they would have given evidence which would defeat his design. The contention of the petitioner that respondents 2 and 3 ought to have disproved his case to succeed in their cases also cannot be accepted in law. When once the `direction in writing' is not disputed the onus probandi was entirely on the petitioner. Even the documents WP(C).No.18145 & 18146/2013 21 Exts.R1 to R7 with the oral testimony of RW3 were not conclusive enough to show that the petitioner required an emergent hospitalization on 25.11.2012 and also its continuance on 26.11.2012. This is the finding of the Commission. In the light of the decision in **Nirmala J. Jhala** v. **State of Gujarat (AIR 2013 SC 1513)** judicial review is not akin to adjudication on merits by re-appreciating evidence as an appellate authority. Adequacy or reliability of evidence is not a matter which can be permitted to be canvassed before court in writ proceedings. This is not a case where the findings are totally against the weight of evidence and totally perverse. In fact, it was after analysing the evidence in Exts.R1 to R7 and the depositions of RW1 and RW3 that the Commission found the inaction to cite and examine the doctors as a vital lapse. Question of applying presumption would arise only when facts are not known or there are gaps in the evidence which have to be filled in with their aid. It is in this context that the observations made hereinbefore would assume relevance. The petitioner did not lay down the basis for justifying the production of secondary evidence, if at all they can be described so. Even after marking such documents he had not chosen to prove the same through any of the doctors who examined during the period of his hospitalization from 25.11.2012 to 1.12.2012 and at the same time, there is no case for him that no such doctors WP(C).No.18145 & 18146/2013 22 were available. As noticed earlier, even if they were available a competent doctor attached to that hospital who is conversant with the doctor whose signature appears in such documents could have been examined. Going by Section 102 of the Evidence Act the burden of proof vests on the party who would fail if no evidence at all were given on either side. Illustration (g) to Section 114 of the Evidence Act assumes relevance in the context of the case. If a party to an action is in possession of the best evidence which in one way or other is decisive on the fact in issue then there is heavy duty cast upon him to assist the court with the same and notwithstanding what the abstract doctrine of the onus of proof may suggest about it. In case he fails to produce it without any reasonable justification, whether called upon to do so or not, then in law it is open to the court to draw an adverse inference against him for that reason in view of illustration (g) to Section 114 of the Indian Evidence Act, 1872 (See the decisions in **Kundan Lal Rallaram** v. **Custodian, Evacuee Property, Bombay (AIR 1961 SC 1316)** and **Gopal Krishnaji Ketkar** v. **Mohamed Haji Latiff (AIR 1968 SC 1413)).** 10. I have adverted to those rules of evidence only to show that the finding of the Commission that the petitioner has failed to WP(C).No.18145 & 18146/2013 23 examine any of the doctors of Medical College Hospital, Thiruvananthapuram to prove the verity of his contentions based on hospitalisation has legal backing. In the light of the provisions under the Act when a direction in writing, falling within the purview of section 2 (ivA) of the Act is issued by the District President or the District Secretary of a particular party for exercising the vote favourably or unfavourably or to abstain from voting to the members belonging to that political party in a particular election, the members belonging to such party are bound to strictly act in accordance with the direction in writing and in the event of failure it is for that member to establish the reason if he is to escape the vice of disloyalty and to avoid the consequential disqualification in view of the provisions under Section 3 of the Act. In the circumstances, in the absence of any dispute regarding the issuance of a 'direction in writing' to vote in favour of the 3[rd] respondent by PW3 the petitioner who failed to attend the election meeting on 26.11.2012 can only be taken to have abstained from voting in accordance with the 'direction in writing' which is usually styled as whip. Upon failure on the part of the petitioner to establish a reason that would dispel vice of disloyalty, the said action has to meet with the inevitable consequence of disqualification as statutorily mandated. The failure to establish such a reason would only suggest that the concerned WP(C).No.18145 & 18146/2013 24 member was drawn into the vortex of bad politics which invariably suggest disloyalty towards his own political party. When the 'direction in writing' is to vote in a particular manner abstinence from voting amounts to its defiance and the consequence must be disqualification on the ground of defection. The appreciation of evidence by the Commission to reach the consequential conclusion that the petitioner became disloyal to his own political party, CPI(M) is only a plausible view that could be taken in the circumstances and the subsequent declarations are only inevitable consequences in such circumstances. In the circumstances, the former writ petition is liable to fail. 11. Now, I will consider the case of the petitioner in the latter writ petition. O.P.Nos.114 and 119 of 2012 were filed respectively by respondents 2 and 3 against the petitioner in the latter writ petition, mainly alleging that he has purposefully tendered an invalid vote and thus betrayed the political party to which he belonged namely CPI(M) and thereby committed defection to incur the disqualification as statutorily mandated. It was their further contention that the petitioner had colluded with the members of the Panchayat belonging to UDF coalition and BJP which culminated in the election of the independent candidate supported by JSS as the President of the Panchayat and WP(C).No.18145 & 18146/2013 25 thereby he acted against the interest of his own political party. In fact, before the Commission the petitioner denied all the allegations of collusion, but the fact that he had not written his name and put his signature on the reverse side of the ballot paper issued to him for casting vote in the election to the post of President of the Panchayat held on 26.11.2012 was admitted. The position that it is a statutory mandate to write the name and put the signature under the provisions of Rules 9(3) and 10 of the Rules incorporated in view of section 153(7A) of the Kerala Panchayat Raj Act, 1994 is indisputable. I have already referred to clause (ivA) of section 2 of the Act defining the expression 'direction in writing' commonly called the whip and also the consequences of defying such a 'direction in writing' by virtue of section 3(1)(a) of the Act. As stated earlier, by the combined effect of those provisions defiance of the 'direction in writing' could occur by exercising the vote favourably or unfavourably and also by abstinence from voting or failure to abstain from voting, depending upon the nature of the 'direction in writing'. It is evident from the petitioner's oral testimony as RW2 that he had not disputed the fact that the third respondent herein viz., Bhasurangan was the official candidate of the LDF coalition for the post of President and also the fact that the District Secretary of CPI(M) viz., PW3 gave a direction to cast vote in favour of Bhasurangan. In fact, the said position WP(C).No.18145 & 18146/2013 26 is obtained from Exts.X7 and X8. Virtually, the fact is that in tune with the direction in writing the petitioner has cast his vote in favour of the third respondent, but he did not write his name and put his signature on the reverse side of the ballot paper issued to him and thus rendered the vote cast by him invalid. What followed thereafter is the defeat of the official candidate of the LDF coalition in the election to the post of President and the consequential election of the independent member supported by JSS as the President of the Panchayat. His defence that it was only an unintentional omission was considered in detail by the Commission. The Commission took note of the fact elicited during his cross examination as RW2 that he was elected to Maranallur Grama Panchayat on four occasions and also that during two terms he functioned as the President of the Panchayat. In fact, election in question had occasioned owing to his resignation from the post of President on expiry of two years from the date of assumption of office. Rule 26 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995 enjoins that the Secretary of a Panchayat shall attend all the meetings of the Panchayat and in case it becomes impossible for him to attend a meeting due to unavoidable reasons, an officer authorised by him in that behalf shall attend the meeting, and record the proceedings of the Panchayat and it shall be kept under the custody of the Secretary. WP(C).No.18145 & 18146/2013 27 Ext.X3(a) is the minutes of the meeting of the Panchayat held on 26.11.2012 and it was produced by the Secretary of the Panchayat who was examined as PW1. Thus, Ext.X3(a) is an official record and therefore, its correctness has to be presumed and in this case it was not rebutted before the Commission. It would reveal that prior to the said meeting the Returning Officer read out Rules 7, 8, 9 and 10 of the Kerala Panchayat Raj (Election of President and Vice President) Rules to all the members who attended the said meeting. Rule 9(3) provides that it is mandatory to write the name and put the signature on the reverse side of the ballot paper by the member-voter after putting the mark ` **X** ' against the name of the person to whom he intends to vote. In the said circumstances, the Commission rightly arrived at the conclusion that Rule 9(3) which provided the manner in which a member has to cast vote was read over to all the members including the petitioner in the latter writ petition and also took note of the admitted position that his party had given direction to the petitioner to cast vote in favour of the third respondent as is obvious from Exts.X6 to X8 together with the evidence of PW1 and PW3. PW3, the District Secretary of CPI(M) deposed to the effect that the petitioner in the latter writ petition had contacted the opposite coalition and also BJP to torpedo the governance of LDF in the Panchayat. It has also come out in evidence that in tune with the WP(C).No.18145 & 18146/2013 28 direction of the party CPI(M) to which the petitioner in the latter writ petition belongs, he put the mark ` **X** ' on the ballot paper against the name of the candidate for whom he was directed to vote viz., the third respondent herein and at the same time, he had not written his name and put his signature on the reverse side of the ballot paper. Taking into account all the circumstances and the evidence the Commission came to the conclusion that the petitioner in the latter writ petition had purposefully invalidated his vote in the election to the post of President and consequently, issued the declaration to the effect that the petitioner had incurred disqualification for being member of the Panchayat in terms of the provisions under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act (for short `the Act') and he was also declared as disqualified for contesting as a candidate in an election to any local authorities for a period of six years from 17.7.2013. The question is whether the said finding invites any interference in exercise of the power of judicial review. The provision under Rule 9 was incorporated in view of the specific provisions under Section 153 (7A) of the Kerala Panchayat Raj Act. When the fact that Rule 9 was read over to all the members prior to the meeting held on 26.11.2012 is established by Ext.X3(a) and stands unrebutted the petitioner cannot feign ignorance about the statutory mandate and contend that it was a WP(C).No.18145 & 18146/2013 29 mere omission from his part to write his name and signature on the reverse side of the ballot paper and that it was unintentional. The very purpose of reading out of such provisions ahead of the meeting for the election to the posts of President or Vice-President is to bring to the attention of the members or to refresh their memories regarding the statutory mandate and also of its consequences. In this context, the admitted fact that he had been a member of the Panchayat on three previous occasions as well and the fact that twice he was the President of the said Panchayat also assume relevance. Admittedly, after the polling the Returning Officer rejected the vote cast by the petitioner as invalid and as a consequence thereof the official candidate of LDF coalition viz., the 3[rd] respondent was defeated and an independent candidate with the support of the opposite coalition came to be elected as the President of the Panchayat. In such circumstances, the question is whether the action on the part of the petitioner is disloyalty amounting to voluntary giving up membership? Going by the decision of a Division Bench of this Court in **Varghese** v. **Kerala State Election Commission (2009 (3) KLT 1)** voting against the interest of one's own party or the direction of one's own party amounts to disloyalty and when once a member belongs to a particular political party becomes disloyal by his conduct towards his own political party, the inevitable inference is that he has voluntarily WP(C).No.18145 & 18146/2013 30 given up his membership from that party. When once it is evident that the relevant provision relating the procedure of voting and the consequence of failure to adhere to the same were read out immediately prior to the voting held on 26.11.2012 how can the petitioner claim immunity from disqualification by simply styling the action in not writing the name and putting the signature as unintentional. The learned counsel appearing for the petitioner attempted to justify the said action on the part of the petitioner by contending that the very purpose of Rule 9 of the Rules is only to identify the fact as to in whose favour a member exercised his vote in an election to the post of President or VicePresident using the ballot paper issued to him. It is further contended that admittedly, in this case, only 20 out of 21 Panchayat members participated in the election and out of the 20 who partook in the election 19 members had correctly complied with the statutory mandate and written their names and put their signatures on the reverse side of the ballot papers issued to them after putting the mark ' **X** ' against the candidate to whom they intend to vote. According to the petitioner, when there was no difficulty at all for the Returning Officer to identify the fact that it was the petitioner who cast the vote in favour of the third respondent in the election to the post of President but failed to write his name and put his signature on the reverse side of the ballot paper, the WP(C).No.18145 & 18146/2013 31 very purpose of Rule 9 of the Rules should have been taken as achieved and in the peculiar circumstances, the consequence of Rule 9 should not have been ordered to take effect by rejecting the vote as invalid. In other words, the vote cast by him ought not to have been declared as invalid. While considering the said contentions of the petitioner it will only be apropos to refer to Section 153(14) of the Kerala Panchayat Raj Act which provides the remedy for calling in question the validity of an election of President of a Panchayat. In this case the election to the post of President in the Panchayat was held on 26.11.2012 and despite invalidation of his vote and the consequential election of the independent member with the support of JSS as President of the Panchayat to the detriment of the interest of his own political party the petitioner got no case that he filed a petition in terms of Section 153(14) of the Kerala Panchayat Raj Act, 1994 either immediately after the declaration of the result of the election to the post of President or even after the filing of the aforesaid original petitions seeking for his disqualification on the ground of defection. There can be no dispute regarding the position that the validity of the election of the President of a Panchayat could be called in question only under Section 153(14) of the said Act or a prayer for validation of a vote rejected in an election to the post of President of a Panchayat could not have been sought by the petitioner and entertained WP(C).No.18145 & 18146/2013 32 in the original petitions filed against him seeking his disqualification on the ground of defection. Still, to support the contention that the vote cast by the petitioner in the election of the President of the Panchayat held on 26.11.2012 should not have been rejected as invalid the learned counsel for the petitioner relied on a decision of the Hon'ble Apex Court in **Arun Kumar Bose** v. **Mohd.Furkan Ansari (AIR 1983 SC 1311).** Admittedly, in that case the Presiding Officer had omitted to put his signature on the ballot papers and such unsigned ballot papers were issued among the members of the electorate. The question whether those ballot papers were liable to be rejected or not was considered by the Hon'ble Apex Court taking into account the fact that the ballot papers came to be rejected owing to the failure on the part of the Returning Officer to comply with the mandatory provisions under Rule 56(2) of the Conduct of Election Rules, 1961. Rule 36 of the Conduct of Election Rules, 1961, makes detailed provision for counting votes and sub-rule (2) thereunder requires the Returning Officer to reject a ballot paper when any of the seven infirmities indicated therein is found in a ballot paper. Going by Rule 38(1) of the Conduct of Election Rules every ballot paper before its issue to an elector the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct and every ballot paper, before it is issued, WP(C).No.18145 & 18146/2013 33 shall be signed in full on its back by the Presiding Officer. Going by Rule 56(2) of the Conduct of Election Rules, if a ballot paper does not contain the signature of the Presiding Officer the same got to be rejected at the counting in view of the mandatory provision in Rule 56(2) of the said Rules. These provisions were referred to in paragraphs 10 to 12 of the said decision and thereafter the question of applicability of a proviso thereunder viz., “Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect” was considered. A careful scanning of paragraphs 10 to 12 therein would reveal that taking into account the facts that those ballot papers were not spurious and they came to be rejected solely on account of the mistake or failure on the part of the Presiding Officer in not putting his signature on those ballot papers to satisfy the mandatory requirements the proviso referred hereinbefore, was found applicable and consequently, it was held that those ballot papers were not liable to be rejected. Accordingly, the decision of the Patna High Court was affirmed by the Hon'ble Apex Court. It is thus obvious that in **Arun Kumar's** case (supra) the invalidation of the votes and the consequential rejection occurred owing to the mistake/failure committed WP(C).No.18145 & 18146/2013 34 by the Returning Officer. In this case, the Returning Officer who under Section 153(7) is duty bound to do all acts and things as may be necessary for effectively conducting the election of President of the Panchayat, in the manner prescribed, read out all the related provisions viz., Rules 7, 8, 9 and 10 of the Rules immediately prior to the voting, in the meeting held on 26.11.2012 to bring to the attention of the members the manner prescribed for the election, as is obvious from Ext.X3(a). Therefore, the petitioner cannot attribute any flaw on the Returning Officer or anyone else and it was his own inaction, as stated hereinbefore, that culminated in the rejection of his vote as invalid. That question arose for consideration before the Commission not at all in a proceeding calling in question the validity of the election to the post of President but only in the context of deciding the question of defection and therefore, the approach to be adopted is definitely, bound to be different. I may hasten to add that going by the provisions under Section 153(14) a dispute relating the validity of an election of President of a Panchayat can be called in question only before the Munsiff's Court or before the District Court depending on the question whether the concerned Panchayat is a Village Panchayat, or a Block Panchayat or a District Panchayat. The point is that the contention raised by the petitioner based on the question of correctness of the decision in WP(C).No.18145 & 18146/2013 35 invalidating the vote cast by him in the election held on 26.11.2012 is absolutely devoid of any merits or bona fides. Raising such a question before a wrong forum in a proceeding not drawn for that purpose cannot be taken as made with bona fides and can be taken only as one raised for the purpose of escaping the consequences based on defection. Such a contention is nothing but a claptrap taking into account the indubitable position that owing to the said action on the part of the petitioner in the latter writ petition damage was done to the party and to the LDF coalition to which CPI(M) is a constituent, by the defeat of their official candidate viz., the 3[rd] respondent herein and the consequent election of the independent candidate with JSS support as the President of the Panchayat despite the fact that LDF coalition got 11 members out of the total strength of 21 in the Panchayat. In the circumstances, the question whether non-writing of the name and non-signing on the reverse side of the ballot paper by the petitioner is intentional or unintentional pales into insignificance and as the said action was clearly against the specific `direction in writing' issued by PW3 it amounts to defiance with the whip amounting to disloyalty consequently, voluntary giving up of membership from the party CPI(M). In the circumstances, I do not find any reason whatsoever to interfere with the findings of the Commission that subsequent change of heart or remorseful conduct of the petitioner in WP(C).No.18145 & 18146/2013 36 W.P.(C)No.18146 of 2013 also cannot undo the damage caused by his disloyalty in view of the decision in **Varghese's** case (supra). There is no merit in W.P.(C)No.18146 of 2013. It is also liable to fail. The petitioners who were drawn into the vortex of bad politics cannot escape the clutches of law under the Act that was enacted to curb the evil of political defection. In the above circumstances, the common order dated 17.7.2013 impugned in these cases calls for no interference and consequently, these writ petitions are dismissed. No costs. Sd/- **C.T.RAVIKUMAR Judge** TKS