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 3rd 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 ex- officio 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 31-12- 2004. 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 4th 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 4th 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 3rd respondent therein was appointed as Administrator. Contention of the petitioner is that the 3rd 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 3rd 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 3rd 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 3rd 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 4th 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 4th 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