Rejith Rajendran v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 6TH DAY OF JUNE 2013/16TH JYAISHTA 1935** ## **WA.No. 289 of 2012** **------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) NO.34406/2010 oOF HIGH COURT OF KERALA DATED 13-12-2011** **..........** ## **APPELLANT/PETITIONER:** **---------------------------------------** **REJITH RAJENDRAN, S/O. A.RAJENDRAN NAIR, MADATHIL HOUSE, MADATHIL NADA, THIRUVALLAM, THIRUVANANTHAPURAM-695 027.** **BY ADVS. SRI.B.S.SWATHI KUMAR SMT.M.G.AISHWARYA** ## **RESPONDENT(S)/RESPONDENTS 1 TO 3 & 5:** **--------------------------------------------------------------------** ## **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-695 141, REP. BY ITS ADMINISTRATOR/DY. SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM.** ## **3. THE ADMINISTRATOR,** **INDIAN RED CROSS SOCIETY, KERALA STATE BRANCH, RED CROSS ROAD, GENERAL HOSPITAL JUNCTION, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 141.** ## **4. SINDHU RAGHAVAN,** **D/O. RAGHAVAN M.V., PADMARAGAM, KNRA-52, M.K.K.NAIR ROAD, PETTAH P.O., THIRUVANANTHAPURAM.** **R1 BY GOVERNMENT PLEADER SRI.P.I.DAVIS R2 &R3 BY ADV. SRI.BLAZE K.JOSE, SC, INDIAN RED CROSS SOCIETY R4 BY ADVS. SRI.REJI GEORGE SRI.GOPAKUMAR G. (ALUVA)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2013, ALONG WITH WA. NO.566/2012 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **Manjula Chellur, C.J. & K. Vinod Chandran, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 289, 566, 574 & 1492 OF 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of June, 2013 ## **JUDGMENT** ## **Manjula Chellur, C.J.** These appeals are directed against the judgment dated 13.12.2011 in W.P.(C) No.34406 of 2010 and other connected matters. Though several writ petitions were disposed of by a common judgment, so far as the appeals are concerned, they are directed against the judgment in W.P.(C) Nos. 34406 and 36263 of 2010. 2. The entire controversy revolves around the management of the Indian Red Cross Society Kerala State Branch. Now as on today the management of the Indian Red Cross Society Kerala State Branch is entrusted to an administrator appointed by the Government as per the directions of this Court. Since 2004 no elections were conducted to the managing body of the Society. There were allegations of mismanagement and misappropriation of funds levelled against the office bearers and some of the Executive WA Nos. 289, 566, 574 & 1492 of 2012 -:2:- Committee members. W.P.(C) No.34406 of 2010 came to be filed challenging Ext.P3 order of Government through which the Executive Committee of the State Branch was dissolved. 3. It is necessary to narrate, in brief, the facts that led to the dissolution of Executive Committee. Several complaints came to be lodged against the Honorary General Secretary bringing to the notice of the Government regarding his behaviour of showing discrimination in the treatment shown to the employees based on caste etc., non-payment of salaries and serious financial irregularities. Chairman had suggested an immediate enquiry. The Honorary General Secretary requested His Excellency the Governor of Kerala who was the Honorary President of State Branch to intervene. His Excellency the Governor of Kerala initiated appropriate action on the basis of request received from the Secretary General of the National Society and ordered an enquiry into the matter to be conducted by District Collector, Thiruvananthapuram. In the report, the District Collector recommended dissolution of the existing WA Nos. 289, 566, 574 & 1492 of 2012 -:3:- Executive Committee and for appointment of an administrator in order to set right the administration and also to conduct election for fresh Executive Committee smoothly. This recommendation was accepted by His Excellency the Governor of Kerala as ex-officio President and accordingly Executive Committee of the State Branch was dissolved and an Additional Secretary, Government of Kerala was appointed as Administrator to administer the day to day activities of the Kerala State Branch. 4. In spite of such appointment of Administrator, however, no elections came to be conducted therefore writ petitions were filed seeking writ of mandamus directing the concerned to conduct elections. Meanwhile, in order to have functioning of the Kerala State Branch, an ad hoc committee came to be appointed by the Government by virtue of an order at Ext.P4 dated 18.07.2008, wherein the Honorary General Secretary and also members were nominated. The reason for this was, the Government was of the opinion that the election to the Executive Committee to the State Branch can be conducted WA Nos. 289, 566, 574 & 1492 of 2012 -:4:- only after amending the rule and bylaws based on Indian Red Cross Society Act and therefore ad hoc committee must come into existence to organise the activities of the State Branch. 5. Unfortunately even this Ext.P4 Circular ordering appointment of ad hoc committee also came to be challenged before the Lok Ayukta, Kerala. The Kerala Lok Ayukta by Ext.P5 order found that appointment of administrator by way of an interim arrangement is with a view to have the administration of the Branch till the Executive Committee is elected. However, Lok Ayukta was of the opinion that appointment of ad hoc committee was incorrect and not justifiable and opined that the Administrator shall continue in charge of the State Branch. 6. So far as W.P.(C) No. 36263 of 2010, the main bone of contention was with regard to nonconducting of elections to the Executive Committee and the question is with regard to the preparation of voters list. According to the petitioners, unless payment of moiety to the National Society is complied with, there cannot be induction of any member to the State Branch who WA Nos. 289, 566, 574 & 1492 of 2012 -:5:- could have a valid membership. They further contend, those members who got membership certificate from the National Society alone were entitled to vote in the election. Such certificate of membership by the National Committee could be issued only after the receipt of moiety i.e., payment of a particular portion of amount as share out of the membership fee of the member concerned. They further allege that unless an applicant remits the membership fee and the Executive Committee issues the Identity Cards, no member could be validly inducted as member, therefore, membership certificate from the National Society alone is not correct. There was also a contention that whether payment of moiety alone would decide the induction of a particular member as a member to the State Branch. 7. During the pendency of the writ petitions, an interim direction was granted on 16.11.2010 directing the administrator not to enroll any new member. Therefore, it is borne on record that subsequent to the dissolution of Executive WA Nos. 289, 566, 574 & 1492 of 2012 -:6:- Committee several members were inducted through the Administrator till 16.11.2010. It is also placed on record that subsequent to the interim order issued by the Court, some members were inducted numbering 153, according to the writ petitioners. 8. The learned Judge, after taking into consideration of the relevant facts and circumstances rightly concluded that payment of moiety is only a commitment between the State Branch and the National Committee and it has nothing to do with a particular member. Once the State branch collects membership fee and issues identity cards, the duty of the applicant to become a member is fulfilled. Whether moiety amount is paid or not by the State Branch to the National Committee it is the look out of the State Branch, therefore, the contention raised by the writ petitioners that payment of moiety alone would decide validity of the membership was rejected. While opining so, the learned Judge opined that the cut off date to consider the validity of the membership should be taken as 10.06.2010; the date of the WA Nos. 289, 566, 574 & 1492 of 2012 -:7:- order of Lok Ayukta nullifying the constitution of ad hoc committee attempted by the State Government. We need not go into the controversy whether Lok Ayukta was justified in such action of nullifying constitution of ad hoc committee by the State Government. As on today the said ad hoc committee is not in existence. On the other hand, though an Administrator from the rank of Additional Secretary came to be appointed from time to time, ultimately in the last occasion, the Court directed that one of the senior most officers who happens to be an Administrative Assistant in the Kerala State Branch of Red Cross Society was appointed as the Administrator and he is in charge of the entire administration as on today. 9. The fact remains, right from 2004 till date no elections are conducted to the Executive Committee. Different administrators at different point of time are in charge of the affairs of the society. Though the administrator was directed to conduct elections as early as possible, on account of the filing of the writ petitions it cannot be done. After disposal of the writ WA Nos. 289, 566, 574 & 1492 of 2012 -:8:- petitions by the learned Single Judge, aggrieved by the judgment, wherein the learned Judge said, members who were inducted up to 10.06.2010 alone could be taken as valid members for exercising vote in the elections, these four writ appeals came to be filed. The narrow question for our consideration is whether the date for inducting members to the State Branch has to be restricted to 10.06.2010 or 16.11.2010. 10. As a matter of fact the challenge before the Lok Ayukta was with regard to formation of ad hoc committee and nothing else. As already stated above, the Government did not attempt again to constitute an ad hoc committee. In view of appointment of administrator we need not take into consideration 10.06.2010 as cut off date, as Lok Ayukta nullified the ad hoc committee. It is nobody's case that ad hoc committee has started inducting members. As a matter of fact they never took charge to administer the affairs of the Society. Therefore, even if members were inducted subsequent to dissolution of the Executive Committee by virtue of orders of His Excellency, the WA Nos. 289, 566, 574 & 1492 of 2012 -:9:- Governor of Kerala, only administrators who were appointed from time to time granted membership and issued identity cards. There was a positive direction not to enroll any new member subsequent to 16.11.2010 and not 10.06.2010. So far as the membership list maintained by the Kerala State Branch they have furnished said list which consists of 11,354 members as on 16.11.2010. All these persons admittedly were issued with identify cards. 11. The question is whether the learned Single Judge was justified in saying that there is lack of authority on the part of the administrator to enroll a member. The learned Single **-** Judge placing reliance on **Joint Registrar of Co operative Societies v. T.A. Kuttappan** [2002(2) KLT 480 (SC)] opined that administrator also lacked power to exercise functions of committee while referring to the provisions of Sections 32 and 33 of the Kerala Co-operative Societies Act enabling appointment of administrator in lieu of Executive Committee. However, as such provisions are lacking in the bye-laws or rules of Indian Red WA Nos. 289, 566, 574 & 1492 of 2012 -:10:- Cross Society opined that as laid down in the above judgment by the Apex Court that administrator did not have the power to exercise functions of the Committee. 12. Having regard to the special statute governing the Co-operative Societies and in the absence of such statute which governs the functioning of Indian Red Cross Society, we cannot compare them with the rules and bye-laws of Indian Red Cross Society Act. The very purpose of appointing an administrator was on account of dissolution of Executive Committee. As a matter of fact the Administrator was none other than an IAS officer from the Government of Kerala. Till the senior most Administrative Assistant of the State Branch of the Society was nominated, the memberships if at all done by the administrators would come to 644. After 16.11.2010, no new member is inducted. In the absence of such provision like Co-operative Societies Act either in the rule or bye-laws of Indian Red Cross Society, we are of the opinion, the law laid down in the above case cannot be applied to the facts of the present case. WA Nos. 289, 566, 574 & 1492 of 2012 -:11:- Therefore, all the members who were enrolled and having identity cards as indicated in the list furnished by the administrator were validly inducted till 16.11.2010. They are entitled to exercise their vote in the election to the Executive Committee. The present Administrator shall look into the provisions i.e. rules and bye-laws amended by the National Society so far as conducting the elections to the Society State Branch and proceed with the matter in accordance with the new rules which are in force. We also fix a time frame of three months from the date of judgment within which such elections have to be conducted by the administrator of the State Branch of the Society. Accordingly, the Writ Appeals are disposed of. **Manjula Chellur, Chief Justice.** **K. Vinod Chandran, Judge.** ttb/07/06 WA Nos. 289, 566, 574 & 1492 of 2012 -:12:-