IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 WP(C).No. 10387 of 2009(P) -------------------------- PETITIONER(S): --------------- ANAD GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, SAYOORDEVAN NAIR S.K., S/O.R.KRISHNA PILLAI, RESIDING AT VIGHNESWARA, T.C.2/1055(2), MURINJAPALAM, MEDICAL COLLEGE P.O., TRIVANDRUM. BY ADV. SRI.DILIP MOHAN RESPONDENT(S): --------------- 1. KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, LMS COMPOUND, TRIVANDRUM. 2. P.MANI, JAYAMATHA BHAVAN, THAZHANAMALA, CHULLIMANOOR P.O., TRIVANDRUM. BY ADV. SRI. MURALI PURUSHOTHAMAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON 21/05/2009, DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 10387 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st May, 2009. J U D G M E N T In this writ petition, a Grama Panchayat represented by its Secretary, challenges an order of the Kerala State Election Commission passed in a petition filed by the Chairman of its Standing Committee for Finance, under Section 155(3) of the Kerala Panchayat Raj Act, in respect of a dispute regarding the resignation of his position as Chairman of the Standing Committee and as member of Panchayat Committee. 2. The signature in the resignation letter, a copy of which is produced as Ext. P1, is not disputed by the 2nd respondent. Ext. P1 reads thus: W.P.C. No. 10387/2009 -: 2 :- The petitioner filed a petition before the Election Commission after the period of 15 days prescribed in the proviso to Section 155(3), for raising a dispute over the resignation, was over. Therefore, originally, the Election Commission declined to entertain the dispute. But, the petitioner had earlier filed another petition before the Secretary and the Secretary had forwarded the same to the State Election Commission within the prescribed time. In W.P(C) No. 27521/2008 filed by the 2nd respondent challenging the order of the Commission, this Court held that the reference made by the Secretary is a valid reference under Section 155(3) and directed the Commission to adjudicate the same. Pursuant to that judgment, the Commission adjudicated the same as R.C.No. 3/2008. 3. The dispute raised by the 2nd respondent was two fold. First was that the resignation was under threat and coercion. The second was that the resignation is not in the form prescribed under the Rules and therefore could not have been accepted by the Secretary as a valid letter of resignation as contemplated by the statutory provisions relating to resignation. 4. The first contention did not find favour with the Commission. But, on the second ground, the dispute was answered in favour of the 2nd respondent by Ext. P5 order, which is under challenge in this writ petition. 5. The contention raised by the petitioner against Ext. P5 is that even if the form used for the resignation is that prescribed in Form No. 3 of the Kerala Panchayat Raj (Standing Committee) Rules, 2000 (hereinafter referred to as 'the Standing Committee Rules'), in so far as the intention of the 2nd respondent is clear from the resignation letter, which is to resign his position as Vice President and Member of the Panchayat and the form prescribed for resignation of President, W.P.C. No. 10387/2009 -: 3 :- Vice President and Members of the Panchayat provided in the Appendix to the Kerala Panchayat Raj (Resignation of President, Vice president and Members) Rules, 2000 (hereinafter referred to as 'the Resignation Rules') is in all material particulars similar, the resignation is valid. It is further pointed out that in Section 14(1) of the Standing Committee rules, the words used are 'shall tender his resignation to the Secretary in Form No. 3 appended to these Rules', whereas in Rule 3 of the K.P.R (Registration of President, Vice President and Members) Rules, the words used are 'he may tender his resignation in the form appended to these rules to the Secretary.” According to the petitioner, under the Standing Committee Rules, the use of the form is mandatory whereas under the other Rules, it is not. 6. I have considered the arguments of the learned counsel for the petitioner and the State Election Commission in detail. 7. At the outset, I must note two important aspects which are vitally relevant for the consideration of the issues involved. The first is that the 2nd respondent is the Chairman of the Standing Committee for Finance and unlike Chairman of other Standing Committees, the Chairman of the Standing Committee for Finance is not elected, but the Vice President of the Panchayat, by virtue of Section 162(6), automatically becomes the ex-officio member and Chairman of the Standing Committee for Finance. The second is that the Kerala Panchayat Raj Act and Rules make definite, separate and elaborate provisions for resignation of President, Vice President, Members, member of Standing Committees and Chairman of Standing Committees. Section 155 of the Kerala apt Raj Act deals with resignation of President, Vice president and Members which reds thus: W.P.C. No. 10387/2009 -: 4 :- “155. Resignation of President, Vice-President or members: (1) The President or Vice President or any other member of a Panchayat may resign his office by tendering his resignation in the prescribe form to the Secretary and the resignation shall take effect from the date on which it is received by the Secretary and the Secretary shall immediately report the fact to the Panchayat and the State Election Commission. (2) The President, the Vice-President or the member who resigns shall either in person or, if such resignation letter has been attested by a Gazetted Officer, by registered post, tender or send as the case may be, his resignation to the Secretary and the Secretary shall give acknowledgment for the receipt of the same. (3) If any dispute regarding any resignation arises, it shall be referred to the State Election Commission for decision and its decision thereon shall be final. Provided that no dispute, referred after the expiry of fifteen days from the date on which the resignation takes effect shall be entertained by the State Election Commission.” Sub-sections (5), (6) and (7) of Section 162 relate to Chairmen of Standing Committees and resignation thereof, which read thus: “(5) The Chairman of every standing committee, except the standing committee for finance, shall be elected by the members of the respective standing committee from among themselves. (6) The Vice-President shall be an ex-officio member and Chairman of the Standing Committee for finance and the President shall be an ex-officio member of all Standing Committees without the right to vote. (7) A member other than an ex-officio member of a Standing Committee and the Chairman of a Standing Committee other than the Standing Committee for finance may resign the membership or chairmanship of a Standing Committee as the case may be by tendering resignation to the Secretary in the prescribed form and the resignation shall take effect from the date on which it was received by the Secretary and the Secretary shall inform the fact immediately to the President and the Panchayat.” 8. Rule 14 of the Kerala Panchayat Raj (Standing Committee) Rules, 2000, deal with power to resign which reads as follows: W.P.C. No. 10387/2009 -: 5 :- “14. Power to resign:- (1) A member of a Standing Committee not being an ex-officio member thereto or the Chairman of a Standing Committee except that of the Standing Committee for Finance, who intends to resign under sub-section (7) of Section 162 shall tender his resignation to the Secretary in Form No.3 appended to these rules. (2) The person who intends to resign shall sign the resignation letter before the Secretary and entrust it directly to the Secretary and in case under any circumstance it becomes impossible to do so, the resignation letter shall be sent to the Secretary by registered post after it is attested by a Gazetted Officer of the State Government Service. (3) Immediately on receipt of a proper resignation letter the Secretary shall, record on it the date and time of its receipt and as to whether it was received direct or by post and affix his signature thereon and shall give an acknowledgment receipt direct or by post, as the case may be, to the person concerned. (4) Resignation shall come into force with effect from the date of receipt of the resignation letter by the Secretary and the Secretary shall, forthwith, inform the matter to the President and the Panchayat and publish it on the Notice board of the Panchayat.” Form No. 3 prescribed in Rule 14 (1) reads thus: FORM 3 [See sub-rule (1) of Rule 14] LETTER OF RESIGNATION. I, . . . . . . . . . . . . . . . . . . . . . Chairman/[member] of the Standing Committee for . . . . . . . . . . . . . of . . . . . . . . . . . Village/Block/District Panchayat hereby voluntarily resign the said Chairmanship/[membership]. Place : . . . . . . . . . . Date: . . . . . . . . . . . Signature, Name and address. W.P.C. No. 10387/2009 -: 6 :- Signature, name and Official address of the attesting . . . . . . . . . . . . . . . . . . . . . . Gazetted Officer (To be filled in only in case the . . . . . . . . . . . . . . . . . . . . . . letter of resignation cannot be delivered in person to the Secretary of the Panchayat) To be filled in by the Secretary of the Panchayat This letter of resignation has been signed before me by Shri. . . . . . . . . . . . . . . . and delivered to me in person at . . . . . . . . . . (hour) on . . . . . . . . . . . (date)/I received this letter of resignation by registered post at . . . . . . . . . (hour) on . . . . . . . . . . (date). Signature of the Secretary with date. Acknowledgment of the receipt of resignation letter. (To be filled in and given to the concerned person by the Secretary) I have received the resignation letter of Sri. . . . . . . . . . . resigning from the Chairmanship/membership of the Standing Committee for . . . . . . . . . . of . . . . . . . . . . Village/Block/District Panchayat at . . . . . (hour) on . . . . . . . (date) directly/by post. The resignation has come into force with effect from the aforesaid date. Place: . . . . . . . . . . Date: . . . . . . . . . . Signature, name and address. 9. In respect of President, Vice President and Members, separate rules are framed for resignation itself, as the Kerala Panchayat Raj (Resignation of President, Vice President or Members) Rules, 2000. Rule 3 thereof prescribes the mode of resignation thus: “3. Resignation of President, Vice-President or Members:- (1) If the President or Vice-President or a Member of a Panchayat W.P.C. No. 10387/2009 -: 7 :- intends to resign his office under Section 155 of the Act, he may tender his resignation in the form appended to these rules to the Secretary. (2) The person intending to resign shall sign the resignation letter before the Secretary and tender it in person to the Secretary and in any event it is not possible to do so, the resignation letter shall be got attested by a Gazetted Officer in the State Government service and sent to the Secretary by registered post. (3) Every resignation letter received by the Secretary not complying with the conditions under sub-rule (2) shall be rejected after recording the reasons thereof. (4) The Secretary shall immediately on receipt of a proper resignation letter, write down the time and date of its receipt, the fact whether it was received in person or by post on the letter and sign it and give an acknowledgment receipt in person or sent the same by post, as the case may be, to the person concerned. Explanation:- acknowledgment receipt sent through post does not include an acknowledgment receipt of the Postal Department. (5) The resignation shall take effect from the date on which the resignation letter is received by the Secretary and the person resigned shall hand over the charge of his official functions, records and properties of the Panchayat to the President or the Vice-President or the person holding charge of the President or the Secretary, as the case may be.” 10. The manner in which the legislature and the rule making authority have dealt with the subject of resignation itself suggests that the provisions are not merely directory but mandatory in nature. Distinct, separate and elaborate procedure is prescribed to ensure that the decision to resign is not casually made by impulse or without sufficient deliberation, which should precede such a decision. The people have reposed their confidence in a member to rule them for five years by electing him. A re-election involves spending of a lot of public money. Therefore, the momentous decision to resign involving waste of public money should not be lightly taken. It is to ensure W.P.C. No. 10387/2009 -: 8 :- that the decision to resign is not taken lightly that the legislature and the rule making authority have taken care to lay down the manner in which and procedure complying with which such person shall resign. Here it may further be noted that the statute further prescribes for resolution of dispute regarding the resignation by the State Election Commission. 11. It is settled law that when a statute prescribes that a particular thing should be done in a particular manner, it shall be done only in that manner and if not , not at all. The Chairman of the Standing Committee for Finance is not elected like other Standing Committee Chairpersons. His membership in the Standing Committee for Finance is also not by election like other standing committee members. The Vice-President of the Panchayat, by virtue of his position as Vice President, automatically becomes the ex-officio member and Chairman of the Standing Committee for Finance. Therefore, as is made clear in Section 162(7), the Chairman of the Standing Committee for Finance cannot resign his position either as member or Chairman of the said Standing Committee. Consequently, Rule 14(1) of the Standing Committee Rules also specifically excludes resignation by Chairman of the Standing Committee for Finance under that Rule. It, therefore, necessarily follows that the Chairman of the Standing Committee for Finance cannot resign in Form No. 3 appended to the Standing Committee Rules. The necessary corollary is that any resignation by the Chairman of the Standing Committee for Finance in Form No. 3, if done, would be invalid. In this case not only is Ext. P 1 resignation in Form No. 3 of the Standing Committee Rules, the same purports to resign his position as Chairman of the Standing Committee for Finance, which is clearly not contemplated by the Act and the Rules. W.P.C. No. 10387/2009 -: 9 :- 12. By the second part of Ext. P1 resignation letter, the 2nd respondent purports to resign his Panchayat Committee membership also. Section 155 of the Act prescribes the manner of resignation of Vice-President and Members. The 2nd respondent does not purport to resign his Vice-Presidentship. But members also should tender their resignation in the prescribed form. The form for the same is prescribed by Rule 3 of the Resignation rules, which is in the Appendix to the Rules, and reads thus: “LETTER OF RESIGNATION I, . . . . . . . . . . . . . . . the elected President/Vice- President/Member of . . . . . . . . . . Village/Block/District Panchayat hereby voluntarily resign the Presidentship/Vice- Presidentship/Membership of the Panchayat. Place: Signature Date: Name and address. Signature, Name, Official . . . . . . . . . . . . . . . address and seal of the . . . . . . . . . . . . . . . Gazetted Officer attesting. (To be filled in only in the case where the resignation letter cannot be delivered in person to the Secretary). (To be filled in by the Secretary) This resignation letter has been signed by . . . . . . . . . . before me and delivered in person to me at .. . . . . . . . (time) on . . . . . . . .(date)/Received this resignation letter by post at . . . . . . . (time) on . . . . . . . (date). Signature of the Secretary. Acknowledgment Receipt of Resignation letter (To be filled in by the Secretary and given to the person resigned) Received by me the resignation letter of Sri. . . . . . . . . . . resigning the Presidentship/Vice-Presidentship of the W.P.C. No. 10387/2009 -: 10 :- Village/Block/District Panchayat at . . . . . (time) on . . . . . (date) in person/by post. The resignation has come into force with effect from the above said date. Place: Secretary, Date: . . . . . . . . . Panchayat.” Ext. P1 is admittedly not in the form prescribed under the Kerala Panchayat Raj (Resignation of President, Vice-President or Members) Rules, 2000 and therefore is not acceptable as a valid letter of resignation as mandated by the Act and Rules. Since I have held that the statutory provisions and the form to be used are mandatory, the use of words 'shall' and 'may' in the two provisions, do not make any difference and the word 'may' should be read as 'shall'. 13. Since Ext. P1 is not a letter of resignation submitted as prescribed by the Statute, the same is not acceptable as a valid resignation and the same is liable to be rejected. For the abovesaid reasons, I do not find any infirmity in Ext. P5 decision of the State Election Commission and therefore the writ petition is dismissed. S. Siri Jagan, Judge. Tds/