Kuttiyachan Joseph and T.S. Baby v. Kerala State Co-operative Election Commission and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940 WA.No. 340 of 2016 IN WPC. 5366/2016 AGAINST THE JUDGMENT DATED 17-02-2016 IN WP(C) 5366/2016 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS 5 & 6: - 1 KUTTIYACHAN JOSEPH, KIZHAKKEL HOUSE, AYYAPPANKOVIL P.O., IDUKKI-685 507. 2 T.S.BABY, THUNDATHILETTU HOUSE, KATTAPPANA SOUTH P.O., IDUKKI-685 515. BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR ## RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4: 1. P.V.MANOHARAN, MEMBER NO.1320, IDUKKI TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.I 681, KATTAPPANA P.O., IDUKKI, RESIDING AT PARAMBATH HOUSE, KALTHOTTY P.O. 2. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695 001. 3. THE RETURNING OFFICER, IDUKKI, (ASSISTANT REGISTRAR(GENERAL), UDUMPANCHOLA, PIN-685 554. 4. THE ELECTORAL OFFICER, IDUKKI (A & E INSPECTOR), O/O. ASSISTANT REGISTRAR (GENERAL), UDUMPANCHOLA, PIN-685 554. 5. IDUKKI TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.I 681, KATTAPPANA P.O., IDUKKI, REPRESENTED BY ITS SECRETARY, PIN-685 508. R1 BY ADV. SRI.P.C.SASIDHARAN R1 BY ADV. SRI.E.S.ASHRAF R1 BY ADV. SRI.P.E.SAJAL R2 TO R4 BY SPECIAL GOVERNMENT PLEADER SRI.K.S.MOHAMAD HASHIM R5 BY ADV. SRI.K.M.KURIAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.7.2018, THE COURT ON 2.8.2018 DELIVERED THE FOLLOWING: “CR” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## W.A.No.340 of 2016 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2[nd] day of August, 2018 ## Judgment ## Chitambaresh, J. 1.This writ appeal arises out of the judgment in the case titled P.V. Manoharan v. Kerala State Co-operative Election Commission and others [2016 (1) KLJ 784]. - 2.The nomination put in by the appellants for election to the managing committee of the fifth respondent bank was accepted by the third respondent Returning Officer notwithstanding the objection of the first respondent. The third respondent overruled the objection by Ext.P5 order on the ground that the documents produced by the first WA340/2016 -: 2 :- respondent are not attested or certified copies. The documents pertained to the suspension of sentence in Crl.R.P.No.3741/2006 filed by the appellants challenging their conviction and sentence. The appellants had been convicted and sentenced for offences alleged under Sections 406 and 465 of the Indian Penal Code by the trial court and lower appellate court. The sentence of imprisonment alone had been suspended by this Court in Crl.R.P.No.3741/2006 which was brought to the notice of the third respondent by the first respondent though in vain. - 3.The first respondent challenged Ext.P5 order overruling his objection in the writ petition contending inter alia that the appellants are disqualified for being elected as members of the managing committee. The first respondent relying on Rule 44(1)(c)(ii) of the Kerala Co-operative Societies Rules, 1969 ('the Rules' for short) asserted that the disqualification is on account of conviction and sentence. The appellants on WA340/2016 -: 3 :- the other hand pointed out that the disqualification is only for the operation of sentence which has however been suspended in Crl.R.P.No.3741/2006. The appellants added that acceptance of nomination even if erroneous can only be questioned in a dispute under Section 69(2)(c) of the Kerala Co-operative Societies Act, 1969 ('the Act' for short). The learned single Judge has by the judgment impugned declared that the appellants are disqualified from contesting the election to the managing committee. 4.It transpires that the operation of the impugned judgment was stayed at the time of admission of the writ appeal pursuant to which the appellants contested the election and were also elected to the managing committee. The election was held on 21.1.2016 and the continuance of the order of stay is opposed by the first respondent stating that the tenure of the managing committee is fast ending. Much depends on the interpretation of Rule 44(1)(c)(ii) of the Rules WA340/2016 -: 4 :- and the impact of the order of suspension in Crl.R.P.No. 3741/2006 both of which are extracted below: Rule 44(1)(c)(ii): “ 44. Disqualification of membership of committee.- (1) No member of the society shall be eligible for being elected, or appointed as a member of the committee of the society under S.28 if he:- **==> picture [114 x 14] intentionally omitted <==** **==> picture [111 x 13] intentionally omitted <==** **==> picture [122 x 14] intentionally omitted <==** (c)(ii) has been sentenced for any offence other than an offence of a political character or an offence not involving moral delinquency such sentence not having been reversed or offence pardoned and a period of three years has not elapsed from the date of expiration of the sentence.” Crl.M.A. No. 10714/2006 in Crl.R.P. No. 3741/2006 “Sentence of imprisonment alone is WA340/2016 -: 5 :- suspended on the petitioners executing a bond for Rs.25,000/each with two solvent sureties each for the like sum to the satisfaction of the trial court and on condition that they will deposit the fine before the trial court within one month from today, if not deposited already. The bond shall also be executed within one month from today.” 5.We heard Mr.V.G.Arun, Advocate on behalf of the appellants, Mr.P.C.Sasidharan, Advocate on behalf of the first respondent and Mr.K.S.Mohamad Hashim, Special Government Pleader. - 6.The disqualification for being elected as members of the committee of the bank is attracted only if the appellants have been sentenced for any offence other than an offence of political character or involving moral delinquency. Such sentence should not have been reversed or offence WA340/2016 -: 6 :- pardoned and a period of three years should not have elapsed from the date of expiration of the sentence. The legislature has guardedly employed the term 'sentenced' instead of 'convicted' meaning thereby that only the operation of sentence incurs disqualification. This is in contra-distinction to Section 8(1) of the Representation of the People Act, 1951 where there has to be a conviction in addition to sentence for disqualification. There is an iota of difference between stay of conviction and suspension of sentence as has been elucidated in Govt. of Andhra Pradesh v. B. Jagjeevan Rao [(2014) 13 SCC 239]. The fact that the conviction of the appellants has not been stayed in Crl.R.P. No. 3741/2006 is immaterial since only the operation of sentence attracts disqualification. 7.The appellants have been sentenced to undergo simple imprisonment for two years and pay fine of `5,000/- each with a default sentence under Sections 406 and 465 of the WA340/2016 -: 7 :- Indian Penal Code by the courts below. The fine amount was paid pursuant to the order dated 27.10.2006 in Crl.R.P. No. 3741/2006 and more than three years have elapsed on the date of filing of nomination (05.02.2016). The disqualification after the imposition of the sentence of fine would linger on only for three years under Rule 44(1)(c)(ii) of the Rules and not any longer. The sentence of imprisonment remained suspended in Crl.R.P. No. 3741/2006 on the date of filing of nomination and therefore there was no disqualification on that count. The third respondent was well justified in accepting the nomination put in by the appellants after overruling the objection of the first respondent on the issue of disqualification. 8.There is yet another reason as to why we should reverse the impugned judgment which had the effect of putting a spoke in the wheel of election by interdicting the acceptance of nomination put in by the appellants. We had after referring WA340/2016 -: 8 :- to a catena of decisions held in Thiruvalla East Co-operative Bank Ltd. v. State Co-operative Election Commission [2017(1)KLT 921] as follows: “Thus a writ petition can be entertained on the well settled parameters in order to correct or smoothen the progress of the election. The instance of rejection of the nomination on totally untenable grounds is an example which could be rectified without upsetting the election calendar. But errors which do not have the effect of interfering with the free flow of the scheduled election can be challenged only in an election dispute. A writ court should act with circumspection as the inevitable consequence of not holding an election in time is the advent of an Administrator.” (emphasis supplied) WA340/2016 -: 9 :- This part of the judgment was not interfered with by the Supreme Court in the appeal therefrom and only that part of the judgment which enlarged the time for preferring the election dispute was set aside. This is evident from the following observations in the order of remand of the case to a Division Bench of this Court in Reji Thomas v. State of Kerala [2018 (2) KLT 817 (SC)]: “14. In the above circumstances, we are of the view that the matters need to be considered afresh by the High Court since the court should not have relegated the parties to the alternate remedy under the Statute by enlarging the time for preferring the election dispute. Accordingly, the impugned judgment to that extent is set aside.”(emphasis supplied) The invalidation of the act of the Returning Officer who accepted the nomination even if on doubtful grounds would certainly impede the process of election and does not in any WA340/2016 -: 10 :- manner smoothen it. The proper remedy of the first respondent was to call in question the election to the managing committee after it is held by raising a dispute under Section 69 (2)(c) of the Act. We set aside the impugned judgment and dismiss the writ petition wherein a declaration was granted that the appellants are 'disqualified from contesting the election'. The writ appeal is allowed. No costs. Sd/- V. CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/300718