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. 248 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.2976/2010 Dated 30/01/2010 .................... APPELLANT(S): PETITIONER --------------------- AMBIKA SAMDEV,MEMBER, WARD NO.2, POOVAR GRAMA PANCHAYAT,THIRUVANANTHAPURAM DIST. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): RESPONDENTS ----------------------- 1. KERALA STATE ELECTION COMMISSIOIN, REPRESENTED BY ITS SECRETARY,KERALA STATE ELECTION COMMISSIOIN,THIRUVANANTHAPURAM. 2. K.JAYAKUMAR, KOLLAMVILAKATHU VEEDU, ARUMANNOOR, POOVAR-PO,THIRUVANANTHAPURAM DIST. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD 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.248 of 2010 ------------------------------- Dated this the 16th day of March, 2010 J U D G M E N T Ramachandran Nair, J. The writ appeal is filed against the judgment of the learned Single Judge confirming the order passed by the State Election Commission disqualifying the appellant from being a member of the Panchayat, for the reason that the appellant caused loss to the Panchayat, within the meaning of Section 35 (o) of the Kerala Panchayat Raj Act. 2. We have heard the counsel appearing for the appellant, standing counsel appearing for the Election Commission, and the counsel appearing for the second respondent, who filed the complaint against the appellant before the Election Commission. 3. The allegations are that the appellant claimed a total amount of Rs.6,600/- from the Panchayat towards 2 travelling allowance and sitting fees during the period 16.1.2006 to 5.8.2008. 4. The admitted facts are that the appellant was elected as the Member of the Panchayat in which she was working simultaneously as a helper in Anganawadi. It is clearly stated in the order of the Election Commission that there is no bar against an Anganawadi worker seeking election and becoming a member. The finding of the Election Commission is that the Member of the Panchayat can simultaneously work as Anganawadi employee and he/she can claim all allowances in terms of the Rules, from the Panchayat. 5. The appellant some time in 2008 became the President of the Panchayat and after becaming President, she has taken leave and has not attended the Anganawadi where she was working as a helper. The case of the complainant,second respondent, is that the Anganawadi records show attendance on all dates on which the appellant has claimed sitting fee and travelling allowance as member of the 3 Panchayat for travelling to various places in connection with the official work of the Panchayat. The second respondent heavily relied on corrections made in the attendance register of the Anganawadi which prove that after marking the attendance, the appellant has shown those markings as casual leave. In other words, the specific case of the second respondent is that after attending the Anganawadi and signing the attendance register, the appellant, without attending the Panchayat meetings and without undertaking journeys for the Panchayat had claimed sitting fees and travelling allowances. However, the contention of the appellant is that there is no positive evidence what so ever produced by the second respondent or obtained by the Election Commission to prove that the appellant has not attended any of the meetings or has not undertaken any of the travel for which she has claimed allowances. Further, contention of the counsel for the appellant is that whatever manipulation, if any, done in the attendance register maintained by the Anganawadi, cannot be attributable to appellant who was only a helper and has got no access to the records maintained by the Anganawadi. We 4 find force in the contentions of the appellant because besides relying on corrected entries in the attendance register as well as in the Panchayat records, the second respondent or the Election Commission has not conducted any enquiry or established the allegation that the appellant has not really attended the meetings or visited any of the Government offices, pertaining to which she claimed allowances from the Panchayat. 7. As stated earlier, the Rules permit the Panchayat Member to continue as an Anganawadi employee even after being elected as a Member of the Panchayat. In other words, one person can simultaneously hold both the posts. There is also a finding by the Election Commission that the work under both the posts could be handled simultaneously which is permissible by the Rules as well. In the circumstances, irrespective of whether there is erasion or correction in the attendance register of the Anganawadi or the Panchayat, we feel loss caused to the Panchayat should be proved with positive evidence, which is not done in this case. In fact, no evidence 5 has been collected from any of the officers to prove the allegation that the appellant has not made official visits representing the Panchayat. Hence, we are of the view that the orders issued by the Election Commission based on surmises and presumption to disqualify the appellant is not tenable and the learned Single Judge was not justified in upholding the same. We, therefore, allow the writ appeal, by setting aside the judgment of the learned Single Judge and allowing the writ petition by vacating Ext.P4 order issued by the Election Commission. P.R.RAMAN, Ag. CHIEF JUSTICE C.N.RAMACHANDRAN NAIR, JUDGE nj.