IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WA.No. 482 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.11637/2008 Dated 08/03/2010 .................... APPELLANT(S): PETITIONER ------------------------ V.GOPALAKRISHNAN, VICE PRESIDENT (MEMBER), WARD NO.10. KANJIRAMKULAM GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.P.K.MANOJKUMAR RESPONDENT(S): --------------- 1. THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. V.B.ANILKUMAR, (MEMBER), WARD NO.4, KANJIRAMKULAM GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT. 3. THE KANJIRAMKULAM GRAMA PANCHAYAT, KANJIRAMKULAM, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 BY ADV. SRI.PIRAPPANCODE V.SUDHEER FOR R3 BY ADV. SRI.A.S.P.KURUP FOR R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN, Ag.C.J. & C.N.RAMACHANDRAN NAIR, J. ------------------------------- W.A.No.482 of 2010 ------------------------------- Dated this the 16th day of March, 2010 J U D G M E N T Ramachandran Nair, J. The order challenged before the learned Single Judge was that of the State Election Commissioner, disqualifying the appellant from being Member of the third respondent Panchayat, for the reason that he has caused loss to the Panchayat, in terms of Section 35(o) of the Kerala Panchayat Raj Act. The learned Single Judge upheld the impugned order and hence this writ appeal. 2. We have heard senior counsel, Sri.N.Nandakumara Menon, appearing for the appellant, Standing Counsel appearing for the Election Commission and the counsel appearing for the the second respondent, who was the complainant before the Election Commission. 3. The allegation against the appellant was that he claimed travelling allowance of Rs.125/- each for going to the WA.No.482 of 2010 2 District Planning Office, Thiruvananthapuram, on 3.2.2006 and for going to the Deputy Chief Engineer's Office on 15.3.2006, while on the very same days, there were sittings of the Panchayat Committee for which appellant claimed sitting fees of Rs.60/- each for each of the meeting. 2. The contention of the appellant is that finding against him is based on just surmise and presumption that the time available after the panchayat meeting will be inadequate to go to the destination of the authorities above mentioned and to meet them during working hours. Further contention of the appellant is that the distance between his residence and the destination in both cases is around 20 to 25 Kms. which could be covered in an hour, and, therefore, the improbability of his going prior to or after the panchayat meeting cannot be inferred. 3. Counsel for the second respondent, on the other hand, contended that the appellant took a specific case that prior WA.No.482 of 2010 3 to the commencement of the meeting itself, he visited the above two offices, which he could not have done. 4. After hearing both sides and after going through the impugned order of the Election Commission and the judgment of the learned Single Judge, we do not find, the findings of the Election Commission sustained by the learned Single Judge is tenable, because the complainant did not venture to prove with any evidence that appellant, without visiting the above offices, have claimed travelling allowance causing loss to the Panchayat . 5. In the first place, we feel the complainant or Election Commission could have taken evidence from the Officers whom the appellant is said to have visited and verified whether the appellant in fact had visited and represented the Panchayat for any matter before them. No evidence was produced or attempted to be collected either by the complainant or by the Election Commission to disprove appellant's claim. Disqualification of a member for any reason what so ever has WA.No.482 of 2010 4 serious consequences and is obviously penal in nature. We are of the view that unless there is sufficient evidence to prove the loss caused to the Panchayat, which in this case arise only if the appellant's claim of official travel is bogus, the appellant cannot be said to have acquired any disqualification warranting his removal from membership. Since the findings are based on only surmises and conjectures, we are unable to sustain the impugned judgment of the learned Single Judge upholding the order of the Election Commissioner. Accordingly, we allow the writ appeal by setting aside the judgment of the learned Single Judge and allow the writ petition, by setting aside Ext.P7 order of the Election Commissioner. P.R.RAMAN, Ag. CHIEF JUSTICE C.N.RAMACHANDRAN NAIR, JUDGE nj.