Rejith Rajendran v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933** **WP(C).No. 34406 of 2010(A)** **---------------------------------------** **PETITIONER:** - **-------------------** **REJITH RAJENDRAN, S/O.A.RAJENDRAN NAIR, AGED 37, MADATHIL HOUSE, MADATHIL NADA, THIRUVALLAM, THIRUVANANTHAPURAM-695 027.** **BY ADVS. SRI.B.S.SWATHY KUMAR, SMT.P.A.ANITHA, SMT.S.MEERA, SMT.M.G.AISHWARYA.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, STATE SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **2. INDIAN RED CROSS SOCIETY, KERALA STATE** **BRANCH, RED CROSS ROAD, GENERAL HOSPITAL JUNCTION, VANCHIYOOR P.O., THIRUVANANTHAPURAM, REP. BY ITS ADMINISTRATOR/DEPUTY SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 141.** **3. THE ADMINISTRATOR, INDIA RED CROSS SOCIETY, KERALA STATE BRANCH, RED CROSS ROAD, GENERAL HOSPITAL JUNCTION, VANCHIYOOR P.O., THIRUVANANTHAPURAM.** ## ***ADDL. R4. IMPLEADED:** **4. SMT. ANNEYAMMA, ADMINISTRATIVE ASSISTANT, INDIAN RED CROSS SOCIETY, KERALA STATE BRANCH, RED CROSS ROAD, GENERAL HOSPITAL JUNCTION, VANCHIYOOR.P.O., THIRUVANANTHAPURAM.** ***IMPLEADED AS PER ORDER IN I.A. 17114/10 DTD. 22/2/11.** **W.P.(C).NO.34406/2010-A:** ## ****ADDL. R5. IMPLEADED:** **5. SINDHU RAGHAVAN, AGED 33 YEARS, D/O. RAGHAVAN M.V., “PADMARAGAM” KNRA - 52, M.K.K. NAIR ROAD, PETTAH.P.O., THIRUVANANTHAPURAM.** ****IMPLEADED AS PER ORDER IN I.A. 941/11 DTD. 22/2/11.** **R1 TO R3 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA, ADDL. R4 & R5 BY ADVS. SMT.MANJU RAJAN, SMT.P.V.SOBHANA, SRI.REJI GEORGE, SRI.JOE JOSEPH KOCHIKUNNEL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2011, ALONG WITH W.P.(C). NO. 36263 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).NO.34406/2010-A:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **EXT.P.1: COPY OF THE ENROLLMENT CERTIFICATE IN FAVOUR OF THE PETITIONER.** **EXT.P.2: COPY OF THE RULES AND BYE LAWS OF THE R.2.** **EXT.P.3: COPY OF THE ORDER IN G.O.(RT).NO.3636/2004/H & FWD DTD. 31/12/2004.** **EXT.P.4: COPY OF THE ORDER NO. GO.(RT)2475/2008/H&FWD DTD. 18/07/2008.** **EXT.P.5: COPY OF THE ORDER IN COMPLAINT NO.451/2006 OF THE KERALA LOK AYUKTA DTD 10/06/2010.** **EXT.P.6: COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE R.2. DTD. 12/10/2010.** **EXT.P.7: COPY OF THE LETTER NO.IRCS/KSB/269/10 DTD. 29/10/2010.** **EXT.P.8: COPY OF THE COMMUNICATION DTD. 16/11/2010 FROM THE PETITIONER TO THE R.3.** **EXT.P.9: COPY OF THE LETTER DTD. 16/11/2010 FROM THE PETITIONER TO THE R.1.** **EXT.P.10: COPY OF THE FAX REPORT DTD. 16/11/2010.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R2.A: COPY OF THE LETTER DTD. 09/11/2010.** **EXT.R2.B: COPY OF THE LETTER DTD. 02/09/09.** **EXT.R2.C: COPY OF THE G.O.(RT).NO.4625/2010 DT.D 25/11/2010.** **EXT.R2.D: COPY OF THE AMENDED BYE-LAWS.** **EXT.R4.A: COPY OF THE RULES FRAMED UNDER SECTION 5 OF THE INDIAN RED CROSS SOCIETY ACT, 1920.** **EXT.R4.B: COPY OF THE RULES AND BYE-LAWS OF THE R.2.** **EXT.R4.C: COPY OF THE GOVERNMENT ORDER DTD. 31/12/2004.** ## **//TRUE COPY//** **P.S. TO JUDGE** **Prv.** ## **C.K.ABDUL REHIM, J.** --------------------------------- WP(C) Nos..34406 OF 2010 ,36263 OF 2010, 36453 OF 2010,1607 OF 2011 & 19450 OF 2011 --------------------------------Dated this the 13[th] day of December , 2011 ## **J U D G M E N T** Subject matter involved in all these writ petitions relate to management of the Indian Red Cross Society, Kerala State Branch. The Indian Red Cross Society (herein after referred to as 'the Society') is a statutory creation established through the Indian Red Cross society Act, 1920 (herein after referred to as the Act, for short) By virtue of Section 4(A) of the Act, His Excellency the President of India is the president of the Society. By virtue of Section 5, the managing body of the Society, with approval of the president is empowered to make rules for the management, functions, control, and procedure of the Society. The rule making powers include powers to frame rules enabling the managing body in supervising activities of the state branch committee. Section 12 provides powers of the branch WP(C) No.34406 OF 2010 2 committees, which prescribe that, subject to any rules made under Section 5 of the Act and subject to the supervision exercisable by the managing body of the Society, each branch committee shall have all powers to receive gift and expend all moneys received by it for its purpose either directly or through other societies or bodies. The branch committees constituted by virtue of powers conferred under Section 8 of the Act should function for achieving the objectives of the Society. The first schedule of the Act indicates that the objectives to which the funds of the society can be applied. The various purposes includes aid to the demobilised, sick and wounded members of Armed Forces of the Union, Maternity and Child Welfare, Nursing and Ambulance work, relief for the mitigation of sufferings caused by epidemics, earthquakes, famines, floods and other disasters , establishment and maintenance of peace among all nations, provide comforts and necessary garments etc. for Hospitals and Health institutions and such other noble causes. It is evident that the State Branch of the society has been WP(C) No.34406 OF 2010 3 constituted in Kerala by virtue of Rules and Bye-laws framed, copy of which is produced as Ext.P2 in WP(C) 34406/2010. The president of the State Branch of the Society is His Excellency the Governor of Kerala. The Rules and Bye-laws of the society provides membership of various nature like patron, vice patron, life member and annual member. The membership fees prescribed are varying for different category. The membership fee collected has to be shared between the national managing body, the State Branch, and the District Branches, in different proportions stipulated in the Rules and Bye- laws. As per Ext.P2, management of the affairs of the State Branch is vested on an Executive Committee which consists of the President , Chairman, Vice Chairman, Hon: General Secretary, Joint Secretary and Hon: Treasurer. As per Ext.P2, the President is the Governor and the Chairman is the Health Minister of Kerala. Other dignitaries will be elected. The committee includes the above said office bearers along with elected Presidents and Secretaries of Junior Red Cross and Youth Red Cross, and WP(C) No.34406 OF 2010 4 members elected from the General body meeting as well as five members nominated by the State Executive committee. It is admitted by all parties that till the year 2004,an elected Executive Committee was administrating affairs of the state Branch of the Society in Kerala. The dispute in these writ petitions arise out of the supersession (dissolution) of the Executive Committee of the State Branch. **2.** First among the writ petitions, W.P.(C) No.34406/2010 is filed by a person who claims to be the life member of the State Branch. He is seeking directions commanding respondents 1 to 3 to conduct elections to the Executive Committee of the State Branch. Inter alia he seeks direction against the 3[rd] respondent, who is the Administrator appointed, to restrain from enrolling any new member in the State Branch. Ext.P3 in that writ petition is the Government Order through which the Executive Committee of the State Branch was dissolved. It is stated therein that the Government have received several complaints against he then Hon: General Secretary, Sri Arumanoor Nirmalanandan about WP(C) No.34406 OF 2010 5 the arrogant behavior, discrimination to employees based on caste, non-payment of salary to the employees, serious financial irregularities etc: with respect to which the Chairman had suggested an immediate enquiry. The Hon:Joint Secretary had requested His Excellency the Governor of Kerala to intervene. But His Excellency the Governor of Kerala desired an appropriate action on the basis of request received from the Secretary General of the national society, and ordered an enquiry into the matter by the District Collector, Trivandrum. The District Collector in his report recommended to dissolve the present Executive Committee and for appointment of an Administrator from the Government inorder to set right the administration and conduct of smooth election of a fresh Executive Committee. His Excellency the Governor of Kerala in his capacity as exofficio president of the State Branch had accepted the recommendations and accordingly the Executive Committee of the State Branch was dissolved and an Additional Secretary to the Government in the Health and Family Welfare WP(C) No.34406 OF 2010 6 department, was posted as Administrator of the State Branch. Ext.P3 Government Order was issued in this regard on 31-122004. Even though the Administrator was appointed for conducting smooth election of the Executive Committee, no election was not conducted till the year 2008, for reasons best known to the Government alone. It is stated that the Government had issued various orders appointing different officials, both working and retired, as Administrators, in between. Ultimately, through Ext.P4 issued on 18-07-2008, the Government have appointed an adhoc Executive Committee with nominated Hon:General Secretary and members. The reasons stated in Ext.P4 is that the election to the Executive Committees of the State Branch can be conducted only after amending the Rules and Bye-laws, based on Indian Red Cross Society Act and till such time it is essential to have an adhoc committee to organise the activities of the State Branch. 3. A member of the State Branch of the society had challenged the action of Government in Ext.P4 before the WP(C) No.34406 OF 2010 7 Kerala Lok Ayuktha. In Ext.P5 order, the Lok- Ayuktha found that the appointment of the Administrators was only by way of an interim arrangement made with a view to have the administration of the State Branch done properly till a new Executive Committee is elected. The reasoning mentioned in Ext.P4, that the election can be conducted only after amending the Rules and Bye-laws was not accepted by the Lok Ayuktha. Holding that, so far the elections of the Executive Committee was conducted on the basis of Rules and Bye-laws in vogue and holding that there is no basis for stating that the election can be conducted only after amending the Rules, it is held that the appointment of the ad-hoc committee cannot be sustained. The Lok -Ayuktha directed constitution of a new Executive Committee through elections, to be conducted by the administrator, and directed that the Executive Committee constituted through Ext.P4 need not take charge. It is also evident that, by virtue of an interim order of stay granted by the Lok Ayuktha, the ad-hoc committee constituted under Ext.P4 has not taken charge and WP(C) No.34406 OF 2010 8 the Administrator was continuing in charge of the state branch. 4. WP(C) 36263/2010 is filed by another member of the state branch. One among the prayers is for a direction for preparation of a voters list and to conduct elections to the Executive Committee. The petitioner inter alia seeks direction for preparation of the voters list including all members of the society on the basis of identity cards held by them, without insisting of production of certificates or letters evidencing payment of 'moiety' to the national society. Such a prayer is made on the basis of a dispute which arose stating that only those members who got membership certificate from the national society alone are entitled to vote in the election. The certificate of membership will be issued by the national committee only on receipt of the 'moiety' (share) out of membership fee of the member concerned. According to the petitioner, the conditions for membership will be fulfilled as and when the applicant remits the membership fee and the Executive committee issues the Identity Cards. Insistence for WP(C) No.34406 OF 2010 9 membership certificate from the national society is not sustainable, and any such insistence will result in avoiding a good number of members. It is contended that the remittance of 'moeity' is the look out of the Administrators of the state branch or district branch as the case may be, and any failure of such remittance cannot be taken as a ground for denying rights of those member who were enrolled after remittance of the enrollment fee, is the contention. I will adjudicate upon the above dispute a later, after dealing with the issue regarding challenge against Ext.P4 Government Order and the directions sought for with respect to conduct of elections. Inter alia the petitioner is challenging the action of the Administrator in enrolling new members, after dissolution of the Executive Committee 4. In WP(C)No.34406/2010 the challenge is mainly against enrollment of member by the Administrator. It is noticed that, by virtue of a interim order issued by this court on 16/11/2010, the Administrator was directed not to enroll any new members. An allegation is raised to the effect that. WP(C) No.34406 OF 2010 10 Further to the interim order, the Administrator had manipulated records and enrolled 153 members The issue regarding validity of memberships enrolled by the Administrator will be dealt with separately. 5. WP(C) 36453/2010 is filed by another member of the state branch seeking directions for convening general body meeting of the state branch and for approval and implementation of the Rules formulated as per Ext.P6, letter of the national society. Inter alia the petitioner is seeking to restrain enrollment of new members by the Administrator and also for conduct of election to the Executive Committee. Ext.P6 in the said writ petition is a letter issued by the Secretary General of the national society, dated 02/09/2009. The said letter is addressed to the Governor of Kerala, who is the president of the state branch. It is evident that new Rules for the State/Union Territories /District branches of the society have come into force with immediate effect on being duly approved by the Honorable President of the Society (His Excellency the President of India) and communicated by the WP(C) No.34406 OF 2010 11 Ministry of Health and Family Welfare, Government of India. Through the said letter it was requested that the rules may be implimented in all branches in various States and Union territories. The petitioner points out that apart from the fact that the Lok-Ayuktha had set aside the appointment of the Ad-hoc Committee, this court in another writ petition, W.P.C No.30026/2008, had issued directions to the state branch of the Society to convene General Body in terms of the Bye-laws and to conduct elections to the Executive Committee, as expeditiously as possible, at any rate, within 6 months form the date of the production of the copy of the judgment. The Complaint raised in the writ petition is to effect that, inspite of such direction and inspite of the amendments of the Rules and Bye laws as evidenced from Ext.P6, no effective steps have been taken to conduct elections and to constitute the Executive Committee. 4. WP(C) 1607/2011 is filed by another member seeking to quash Ext.P3 produced therein, through which the Government have accorded sanction to the Administrator to WP(C) No.34406 OF 2010 12 appoint an Official who retired from the Co-operative Department as Senior Inspector/ Auditor / Assistant Registrar, for a period of 3 months, for the purpose of conducting elections to the Executive Committee. It is alleged that by virtue of Ext.P3 order, the 4[th] respondent therein was appointed as a Returning Officer. The petitioner is seeking to quash such appointment. Learned Government Pleader appearing on behalf of respondents 1 to 3 submitted that the appointment of the 4[th] respondent has not taken effect. Therefore, I am of the view that the issue raised in that writ petition does not deserve further consideration. 5. WP(C)19450/2011 is filed by yet another member challenging Ext.P3 order through which the 3[rd] respondent therein was appointed as Administrator. Contention of the petitioner is that the 3[rd] respondent is a retired Joint Secretary of the Finance Department, and he is a person with respect to whom there were serious allegations regarding manipulations and misuse of the affairs of the society in constituting a district branch atThiruvananthapuram District, WP(C) No.34406 OF 2010 13 and in conducting unauthorised programmes. It is alleged that the 3[rd] respondent was indulging with others in collecting money from public for programmes under the pretext of targeting of aims and objectives of the society and therein misusing the name of the society for his personal gains . It was also contended that hitherto Government had appointed only persons who are in service and the appointment of a retired person as an Administrator could not be justified. In detailed counter affidavit filed on behalf of the 3[rd] respondent all such allegations were refuted. Various documents were produced to show that, even on previous occasions, retired officials from Government were appointed as Administrators. Many other documents were also produced to show that the district branch of the Society was functioning in Trivandrum and that the 3[rd] respondent is the secretary of the district branch nominated by the District Collector . However, it is noticed that the implementation of Ext.P3 was stayed by this court through an interim order, dated 18/7/2011. Learned Counsel for the petitioner pointed out that, through a further WP(C) No.34406 OF 2010 14 order this court had clarified the interim order permitting the Govt to make ad-hoc arrangement for daily administration of the state branch of the Society. It is submitted that Sri.V.Sarath Chandra Nair, joint secretary, Health and Family Welfare Department is now discharging duties of the Administrator. 6. On behalf of the Government a common counter affidavit has been filed in the above writ petitions. It is stated that, identity cards will be issued to those persons who suit the prescribed membership fee, by the district branches as well as the state branches. But only persons who hold certificates issued from the national society alone are treated as true members. It is further stated that, after the Administrator had taken charge, steps were initiated for conducting elections to the Executive Committee. But it was found that up to date electoral roll or details of membership were not available, and therefore steps were taken to collect such details from all district branches. So also steps were taken to collect details regarding payment of 'moiety' to the WP(C) No.34406 OF 2010 15 national society. Referring to the judgment in WP(C) No. 30026/08 it is stated that, conduct of election within 6 months, steps were taken to finalise the voters list . Accordingly requests were forwarded to District Branches to furnish list of members and the Government was requested to accord sanction for appointment of a Returning Officer. In the meanwhile, during 2008, the then Administrator made a request to the Government to constitute an Executive Committee. Accordingly an ad-hoc Committee was constituted. It is conceded that there was no proper records available with respect to payment of 'moiety' to the national society, up to December 1994. It is also stated that, even though the district branches have paid the 'moiety' share to the state branch, the then General Secretary had not remitted the amounts to the headquarters. According to the Government, the bye laws now in force is not impartial and the same is inconsistent with the Rules framed by the national society. The conditions stipulated in the existing Bye-laws with respect to eligibility for becoming Office bearer of the WP(C) No.34406 OF 2010 16 state branch is not impartial and accordingly new Rules as per Ext.R2(d) was forwarded by the national society. It is further stated that for preparing the electoral roll necessary details have not yet been received from the district branches and therefore the directions contained in the order of the Lok -Ayuktha as well as the directions of this court in the judgment in WP(C) No.30026/2008 could not be complied with, the counter affidavit enumerates various activities under taken by the present Administrator, aimed at achieving objectives of the society. 7.The additional 4[th] respondent impleaded in WP(C) No.34406/10 had also filed a counter affidavit producing the new Rules and Bye-laws framed by the national society which is applicable for all state branches and union territories. He is also supporting the cause for having fresh election conducted to the Executive Committee at the earliest in accordance with the new Rule and Bye- laws formulated. 8. From the facts and circumstances prevalent as revealed from the pleadings in these writ petitions, this court WP(C) No.34406 OF 2010 17 is fully convinced that the society constituted with noble aims and objectives, to which His Excellency the President of India is the president at the national level and His excellency the Governor of Kerala is the president at the state level, is being maladministered at the whims and fancies of various officials in a dictatorial manner. It is evident that functioning of the society has been converted as a platform for ventillation all sort of political rivalries without having any due regard to the noble causes for which the society was constituted. It is evident that the executive heads of the state government has also not taken any keen interest to have the branch of the Society functioned in an upright and appropriate manner to achieve the noble goals intented through the aims and objectives of the society. It is clearly evident that, interference with functioning of the Executive Committee became warranted on the basis of serious allegations raised against the then Secretary General . On the basis of an enquiry conducted. Ext.P3 order was issued (in W.P.C. 34406/10) appointing an Administrator, “to set right the WP(C) No.34406 OF 2010 18 administration and to conduct a smooth election of a fresh Executive Committee”. It is the sad state of affairs that, inspite of such an order issued as early as in December,2004, the Administrator continued for a pretty long period of 7 years, without conducting the elections to the Executive Committee. It is evident that an attempt was made from the side of the Government to appoint an Ad-hoc Committee by nominating members, presumably in accordance with their whims and fancies, totally ignoring the provisions of the statute through which the society was constituted and totally ignoring the Rules and Bye- laws of the society. Inspite of setting aside such an order by the Lok- Ayuktha and inspite of specific directions issued by this court to conduct the elections, the matter was indefinitely delayed even there after, for a considerably long period. It is sure that the situation prevalent will not fetch any positive results in the functioning of the society or in the conduct of its activities in a befitfull manner in achieving the aims and objectives . Therefore, in exercise of equity and good conscience, I WP(C) No.34406 OF 2010 19 express my strong opinion that elections to the Executive Committee of the state branch need be conducted at the earliest possible, giving due regard to the provisions of the Act and the Rules and Bye-laws framed by the national society. 9. A prime question which arises for consideration, upon which the parties are in dispute, is regarding the eligibility of members to participate in the general body meeting and to vote for the executive committee. Sri.B.S.Swathikumar, learned counsel appearing for the petitioner in WP(C). No.34406/10, contended that those members with respect to whom 'moiety' has been remitted to the national society and with respect to whom membership certificates were issued by the national society, alone are entitled to participate in the election of the general body. This aspect is disputed by Sri.Lal George, learned counsel appearing for the petitioner in WP (C).No.36263/10, as well as by Sri.Reji George learned counsel appearing for the additional 4[th] respondent in WP(C). No.34406/10. Pointing out to clause (iv) of the Rules and WP(C) No.34406 OF 2010 20 Bye-laws of the state branch as it existed at the time when the Administrator was appointed, it is argued that those who pay the required membership fee will become members. According to Sri.Lal George the payment of membership fee as well as issuance of identity card will conclude the attainment of membership and that will entitle the member to have full right in the society. A perusal of the wording of clause (iv) of Rules and Bye-laws will be beneficial in this regard. Rule (iv) reads as follows; “ Those who pay the required membership fee for different categories of membership will become members. Anti social elements will not be given membership. Payment of membership fee mentioned above will not be the only criteria for membership. The Executive Committee or its nominee reserves the right to deny membership to an applicant on genuine reasons.” From the above Rule it is evident that, payment of membership fee will entitle a person to become a member, but payment of membership fee alone is not the actual WP(C) No.34406 OF 2010 21 criteria. On the other hand, the Executive Committee has to approve the membership. Going by the process prevailing, it is evident that on accepting the application and on payment of requisite membership fee the Executive Committee will issue Identity Cards, approving such membership. Therefore I am of the view that issuance of membership certificate by the national society on accepting 'moiety' is not a sine qua non for permitting exercise of the rights of any member to have participation in the activities of the society or to participate in the election general body. There are chances of delay occurred in remittance of the 'moiety' by the concerned branch. But any such delay or failure on the part of the State Branch or District Branch should not defect the interest of member enrolled. Therefore, I hold that those members whose applications for membership were accepted by the concerned branch, on receipt of requisite membership fee, and with respect to whom Identity Cards were issued, are entitled to participate in the general body and to vote in the elections to be conducted. WP(C) No.34406 OF 2010 22 10. There exist a further dispute regarding the right of the members enrolled by the Administrator for voting in elections. It is evident that there is serious challenge raised against the action of the Administrator in enrolling new members, even after the Lokayukta had set aside appointment of the ad-hoc committee and directed conduct of election. Sri.Swathikumar had drawn my attention to various interim orders issued by this court in WP(C).No.34406/2010 to contend that, even after this court restrained the Administrator from enrolling new members, on 16.11.2010 many new members were enrolled by the Administrator. Sri.Lal George had drawn my attention to Ext.P3 in (WP(C). No.34406/2010) and contended that the Administrator was appointed only to set right the administration of the society and to conduct smooth election of the Executive Committee. Therefore, it was totally illegal and beyond the scope of his jurisdiction to enroll any new member, is the contention. In this regard my attention was drawn to the decision of the Honourable apex court in **Joint Registrar of Co-Operative** WP(C) No.34406 OF 2010 23 **Societies vs. T.A.Kuttappan (2002(2) KLT 480 (SC)** . Referring to sections 32 and 33 of the Kerala Co-operative Societies Act 1969, the Honourable Supreme Court held that the power of Administrator to exercise functions of the committee will not include power to enroll new members. The Honourable apex court opined that a Co-operative Society is expected to function in a democratic manner through an elected committee of management and that committee alone is empowered to enroll new members .Even though provisions akin to section 32 and 33 of the Kerala Co-operative Societies Act enabling appointment of an Administrator in lieu of the Executive Committee, is absent either in the Act or in the Rules and Bye-laws of the Indian Red Cross Society, the broader principle laid by the hon'ble apex court can be adopted on the fact situation prevailing herein. This is especially because of the fact that the appointment of an Administrator is a power vested on the President of the Society under section 4 E of the Act. The President can supersede the managing body when there is gross failure in WP(C) No.34406 OF 2010 24 the management of the society or when it is revealed that the managing body is acting in a manner which is prejudicial to the objectives of the society. In the case at hand it is revealed that the order appointing the Administrator was issued only on the basis of the recommendations of His Excellency the Governor of Kerala, after being satisfied that there exist reasonable circumstances to supersede the committee. Therefore, I am of the view that it is a pure provisional arrangement made in exercise of powers conferred under section 4 E. It is also pertinent to note that on the facts of the case, constitution of an ad-hoc committee was attempted by the State Government, which was nullified through order of the LokAyuktha, as early as on 10.6.2010. The order of the LokAyukta reiterated that it is highly necessary that the new Executive Committee is to be constituted and for that purpose the election has to be held. Administrator was directed to conduct the elections as early as possible. That being the position, enrollment of any new member, atleast after the date of the order of the LokAyukta cannot be WP(C) No.34406 OF 2010 25 justified in any manner. Under such circumstances I hold that those members enrolled to the State branch of the society, before the date of Ext.P5 order of the Lok Ayuktha and with respect to whom the Executive Committee /Administrator had granted approval and issued with Identity Cards, alone are entitled to vote for the elections to be conducted with respect to the state branch. Yet another area of dispute is regarding amendment to the Rules and Bye-laws of the state branch. It is evident that Ext.P2 produced in WP(C). No.34406/10 was the Rules and Bye-laws of the state branch which was in force .In the counter affidavit of Additional 4[th] respondent in W.P.(C) No.34406 of 2010 the new Rules and Bye-laws are produced as Ext.R4(b). It indicate that the original Rules and Bye-laws were amended on two occassions on 29.1.1998 and on 19.1.2002. Such amendments are clearly reflected on a comparison of Ext.P2 and Ext.R4(b). It is evident that, new rules for the State/Union territory/District branches was formulated by the national society in exercise of power vested by virtue section 5 of the WP(C) No.34406 OF 2010 26 Act, for framing such Rules. Copy of the new Rules framed by the national society is produced as Ext.R2(d) along with counter affidavit of respondents 2 and 3 (in W.P.(C) No.34406 of 2010). (It is also produced as Ext.R4(a) along with the counter affidavit of additional 4[th] respondent in WPC.No.34406/10.) It is further evident that the said Rules was forwarded by the national society to the President of the state branch, under Ext.R2(b) covering letter, dated 2.9.2009. The contents of that letter will indicate that the Rules framed for the State/Union Territory/District branches of the society which came into force on getting approval from the Honourable President of the Society (His Excellency the President of India) was forwarded for implementation at all branches . Contentions of respondents 1 and 2 are to the effect that, the Bye-laws are not impartial and it is inconsistent with the Rules framed by the national headquarters of the society. It is contended that such byelaws will only safeguard interest of certain persons. It is stated that the Secretary General of the society had informed that a WP(C) No.34406 OF 2010 27 new Bye-laws has been introduced. But in paragraph 16 of the counter affidavit it is conceded that new Ext.R2(b) is the new Rules directed to be incorporated by the national society. On a perusal of the provisions in the Act it is evident that only the national society is conferred with powers for making Rules as per section 5. Section 5 contemplates that the managing body of the national society is empowered to frame rules with respect to regulation and procedure of the society and the managing body. It also empowers the national society to frame Rules with respect to the procedure for election of members by the state branch committee. No where in the Act it is evident that the State branch or any other branch of the society is empowered to frame any Rules. Therefore it is evident that the Rule making power is exclusively vested on the national society. Further under section 12 of the Act it is stated that powers of each branch committee is subject to the provisions of the Rules made under section 5 and also subject to the powers of supersession exercised by the Managing body of the national society. Therefore it is evident that the WP(C) No.34406 OF 2010 28 state branch of the society is at an obligation to adopt the Rules framed by the national society, in exercise of the powers under section 5 of the Act. Ext.R2(b) as well as Ext.R2 (d) will clearly indicate that the national society had framed and approved Rules which are applicable to the State/Union Territory/ District branches and had requested the state branch to implement those Rules. That being the position the state branch of the society is bound to follow Ext.R2(d) Rules and to conduct elections to the Managing committee as well as to the Executive committee contemplated under Ext.R2(d) Rules, in accordance with the constitution prescribed therein. 11.Sri. Lal George, learned counsel for the petitioner in WP(C).No.36263/2010, raised contention referring to clause 48 of Ext.P2 (in WPC.No.34406/2010) that any amendment to the rules can be made only by the Annual or Extra General Body meeting and such amendment need be duly approved by the Indian Red Cross Society Head quarters. But in clause 48 itself it is stated that the decision of the executive committee of the state branch shall in all essential and policy WP(C) No.34406 OF 2010 29 matters will be supreme and subject to all the Rules and Regulations issued from time to time by the headquarters of the Indian Red Cross Society. As opined above, while considering statutory provisions constituting the society, it is evident that the rule making power is vested only with the national society and its managing body. Therefore there is no meaning in contending that the power to amend the Rules is vested with the executive committee of the state branch. Further, even going by clause 48 an approval by headquarters of the society at the national level is required . Hence, I am of the firm decision that the elections need be conducted in accordance with Ext.R2(d) Rules. 12.It is evident that the LokAyukta had already set aside constitution of the ad-hoc committee. Thereafter another Administrator was appointed as evident from Ext.P3 (in WP (C).No.19450/2011). But the appointment was stayed through an interim order of this court in W.P.(C)No.19450 of 2011, on 18.7.2011. Subsequently this court permitted the Government to depute another official to discharge duties of the WP(C) No.34406 OF 2010 30 Administrator. In view of the findings rendered in the foregoing paragraphs, I take note of the fact that as per the provisions of Ext.R2(d) Rules and Bye-laws it is for the President of the state branch , His Excellency the Governor of Kerala, to take decision for conduct of elections to the Managing body as well as the Executive committee of the state branch of the society. In order to enable such a decision and for conduct of the elections, the State Government should take all necessary steps. It is made clear that the Government will be at liberty to appoint any senior official of the with approval of the Governor, preferably a senior IAS Officer not below the rank of Principal Secretary to the Government, as Administrator for the conduct of elections of the State Branch of the Society. It is also open to the Government to render service of any other official for conduct of the elections in accordance with the Rules and Bye-laws which are in force. As observed above the elections shall be conducted in accordance with provisions of Ext.R2(d) Rules and Bye-laws and by permitting participation of members who WP(C) No.34406 OF 2010 31 were issued with Identity cards before the date of the order of LokAyukta (10.6.2010). 13.All earnest efforts should be taken to conduct the elections and to permit the elected bodies to start functioning at the earliest possible. All positive steps in this regard shall be completed by the Government within a period of four months from the date of receipt of a copy of this judgment. It is made clear that in view of the directions issued above, the interim arrangement permitted through order dated 19.8.2011 issued in WP(C).No.19450/11 shall continue till the new Administrator is appointed as directed above. 14 **.** All these writ petitions, except W.P.(C)NO.1607 OF 2011 are disposed of on the above terms. W.P.(C)No.1607 of 2011 is dismissed as infructuous. ## C.K.ABDUL REHIM,JUDGE ## pmn/ WP(C) No.34406 OF 2010 32 WP(C) No.34406 OF 2010 33 **C.K.ABDUL REHIM JUDGE** ## **smm** WP(C) No.34406 OF 2010 34