IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 WP(C).No. 20117 of 2009(H) PETITIONER: ADVOCATE FRANCIS V ANTONY,PRESIDENT, KADAPRA GRAMA PANCHAYATH,RESIDING AT VADAKKEPARAMPIL HOUSE,PARUMALA P.O., THIRUVALLA,PATHANAMTHITTA. BY ADV. SRI.T.P.PRADEEP RESPONDENTS: 1. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. DISTRICT MISSION CO-ORDINATOR, PATHANAMTHITTA. 3. SECRETARY,KADAPRA GRAMA PANCHAYATH, NIRANAM P.O.,PATHANAMTHITTA. 4. THOMAS P.OOMMAN,PALLUVIRUTHIL VEEDU, NIRANAM KIZHAKKUMBHAGOM P.O., THIRUVALLA,PATHANAMTHITTA. 5. P.O.THOMAS, MEMBER KADAPRA GRAMA PANCHAYATH, PUTHENPARAMPIL HOUSE,KADAPRA, NIRANAM P.O.,THIRUVALLA,PATHANAMTHITTA. ADDL.R6 IMPLEADED: 6. KERALA STATE ELECTION COMMISSION, REPRESENTED BY SECRETARY, CORPORATION OFFICE BUILDING COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM. ADDL.R6 IS IMPLEADED AS PER ORDER DATED 7.12.2009 IN I.A.NO.13906 OF 2009. R5 BY ADV. SRI.V.MANOJ KUMAR R4 BY ADV.SRI.BABU CHERUKARA R3 BY ADV.SMT.RESHMI JACOB ADDL.R6 BY ADV.SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R2 BY ADV. SRI.V.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE COMMON ORDER OF THE FIRST RESPONDENT DATED 6.6.2009. EXT.P2 TRUE COPY OF THE PETITION NAMELY 449/2008 DATED 9.5.2008. EXT.P3 TRUE COPY OF THE PETITION NAMELY 657/2008 DATED 2.7.2008. EXT.P4 TRUE COPY OF THE REGISTRATION CERTIFICATE BEARING REG.NO.P.389/02 DATED 26.6.2002. EXT.P5 TRUE COPY OF THE MEMORANDUM OF ASSOCIATION AND BYELAWS. EXT.P6 TRUE COPY OF THE APPRECIATION ISSUED BY THE GOVERNMENT OF KERALA DATED 9.6.2005. EXT.P7 TRUE COPY OF THE MINUTES PREPARED BY THE CHARGE OFFICER. EXT.P8 TRUE COPY OF THE NEW BYELAWS AS PER G.O.(P) NO.222/08/LSGD DATED 8.8.2008. RESPONDENTS' EXHIBITS: EXT.R5(a) TRUE COPY OF THE RESOLUTION NO.V OF KADAPRA GRAMA PANCHAYATH DATED 28.1.2008. EXT.R5(b) TRUE COPY OF THE REPORT OF THE RETURNING OFFICER DATED 14.2.2008. EXT.R5(c) TRUE COPY OF THE PETITION FILED BY THE 5TH RESPONDENT DATED 18.2.2008. EXT.R5(d) TRUE COPY OF THE PETITION OF A.D.S. MEMBERS DATED 20.2.2008. EXT.R5(e) TRUE COPY OF THE DECISION NO.VII (1) OF KADAPRA GRAMA PANCHAYATH DATED 11.4.2008. EXT.R5(f) TRUE COPY OF THE DISSENTING NOTES SUBMITTED BY THE FIFTH RESPONDENT. EXT.R5(g) TRUE COPY OF THE DISSENTING NOTES SUBMITTED BY THE MEMBER OF GRAMA PANCHAYATH WARD NO.1 DATED 15.4.2008. EXT.R5(h) TRUE COPY OF THE PETITION FILED BY THE ADS MEMBERS OF WARD NO.X OF THE KADAPRA GRAMA PANCHAYATH DATED 19.4.2008. EXT.R5(i) TRUE COPY OF THE COMPLAINT FILED BY SMT.JANAMMA SREEDHARAN BEFORE THE DISTRICT MISSION CO-ORDINATOR, PATHANAMTHITTA DATED 30.5.2008. EXT.R5(j) TRUE COPY OF THE ORDER ISSUED BY THE OMBUDSMAN DATED 21.8.2008. EXT.R5(k) TRUE COPY OF THE REPORT OF THE DEPUTY DIRECTOR OF PANCHAYATH, PATHANAMTHITTA. EXT.R5(l) TRUE COPY OF THE ENQUIRY REPORT DATED 3.10.2008 FILED BY THE ADDITIONAL DIRECTOR OF PANCHAYATH. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 20117 OF 2009 H ------------------------------------------------------ Dated this the 31st day of March, 2011 JUDGMENT Ext.P1 order dated 6.6.2009 passed by the Ombudsman for Local Self Government Institutions, Thiruvananthapuram in O.P.Nos.657 of 2008 and 449 of 2008, is under challenge in this Writ Petition filed by the first respondent in those Original Petitions. 2. The petitioner in the Writ Petition was the President of Kadapra Grama Panchayat at the relevant time. The fourth respondent, Thomas P.Oomman, filed O.P.No.449 of 2008 (Ext.P2) before the Ombudsman alleging maladministration by the petitioner in his capacity as the President of the Panchayat. The fifth respondent, P.O.Thomas, filed O.P.No.657 of 2008 (Ext.P3) for a similar relief alleging maladministration by the petitioner and others. The Ombudsman by Ext.P1 order allowed both the Original Petitions. The Ombudsman held that the acts of the petitioner amounted to maladministration as defined in Section 271F(e) of the Kerala Panchayat Raj Act. A copy of the order was directed to be sent to the State Election Commission for appropriate action. W.P.(C) NO.20117 OF 2009 H :: 2 :: 3. The allegation levelled against the petitioner was that being the President of the Panchayat, after inaugurating the meeting to elect the office bearers of the Kudumbasree Community Development Society on 13.2.2008, the petitioner submitted a panel of nine persons and declared that they were unanimously elected. The Returning Officer namely, the Agricultural Officer, did not discharge her functions as Returning Officer. The petitioner denied the allegations and stated that he inaugurated the meeting for the election of the office bearers of Kudumbasree Community Development Society on two earlier occasions and the officers were unanimously elected without contest on the basis of the consensus arrived at among the members of the General Body. During the present election also, such a consensus was arrived at and there was no contest in the election. The election was made unnecessary because of the consensus among the voters who participated in the meeting. 4. The Kadapra Grama Panchayat Kudumbasree Community Development Society is a society registered under the Travancore- Cochin Literary, Scientific and Charitable Societies Registration Act, W.P.(C) NO.20117 OF 2009 H :: 3 :: 1955. Ext.P5 is the bylaws of the Society. It provides for the Kudumbasree Ayalkoottam (the basic unit), Kudumbasree Area Development Society as the ward level association and Kudumbasree Community Development Society as the panchayat level association. The Kudumbasree Community Development Society consists of all the members of the other ward level and basic units. The office bearers are to be elected in the meeting convened for the purpose of election. The office bearers have to act under the supervision of the panchayat. The election was scheduled to be held in the hall of the panchayat office building. The meeting was presided over by P.O.Thomas, the fifth respondent. He was the Vice President of the panchayat. The petitioner, who was the President of the Panchayat, inaugurated the meeting. An Agricultural Officer in the nearby agricultural office was appointed as the Returning Officer by the panchayat. A lady Village Extension Officer shall be the Charge Officer of the Kudumbasree Community Development Society, as per the bylaws. The Charge Officer was also present at the meeting. 5. There is dispute as to what transpired when the meeting was convened. According to the petitioner, after the inauguration of W.P.(C) NO.20117 OF 2009 H :: 4 :: the meeting, a panel of nine persons as office bearers was suggested and there was no opposition from any of the members of the Kudumbasree Community Development Society, though an objection was raised by the fifth respondent. According to the petitioner, the objection raised by the fifth respondent is not relevant at all, the fifth respondent being not a member of the electorate and a person who could not be a candidate for election. According to respondents 4 and 5, the petitioner obstructed the process of election and clandestinely made the records to make it appear that nine persons were unanimously elected at the meeting of election. According to respondents 4 and 5, there was no election at all and the Returning Officer was not allowed to function as such. They contended that the Returning Officer reported the matter to the Secretary of the Panchayat. 6. Before the Ombudsman, documents were made available as per the interim order passed by the Ombudsman. Reports were also called for from the Deputy Director of Panchayats and the Additional Director of Panchayats. PWs.1 to 4 and RWs.1 and 2 were examined before the Ombudsman. PW1 is the Secretary of the Grama Panchayat. PW2 is the Returning Officer. PW3 is the W.P.(C) NO.20117 OF 2009 H :: 5 :: Secretary of the Panchayat who took charge later in point of time. PW4 is the District Mission Coordinator of Kudumbasree Mission. RW1 is a member of Ward No.7 of Kadapra Grama Panchayat. RW2 is the Chair Person of Kudumbasree Community Development Society, who was elected in the election meeting held on 13.2.2008. 7. The Ombudsman relied on the evidence of PW2, the Returning Officer. It was held that her evidence is reliable and her version can be believed. The Ombudsman also held that evidence of RW1 and RW2 cannot be accepted. The Ombudsman accepted the evidence of PW2 to the effect that she was ready to conduct the election but she could not conduct the election because of the illegal acts of the President of the Panchayat (the petitioner herein), who nominated nine members. She also stated that the petitioner herein took the said nine persons to the first floor of the building where the office of the President was situated. 8. I have perused the evidence of the witnesses and the documents produced along with the Writ Petition, counter affidavit and reply affidavit. PW2 stated in evidence that on 13.2.2008, the date of election itself, she intimated the Secretary of the Panchayat W.P.(C) NO.20117 OF 2009 H :: 6 :: about what transpired at the meeting. She filed a report before the Secretary, which was received by the Secretary only on 18.2.2008. Ext.R5(b) is the report submitted by the Returning Officer to the Secretary of Kadapra Grama Panchayat. The report reads as follows: W.P.(C) NO.20117 OF 2009 H :: 7 :: 9. The first opportunity where the Returning Officer could say that she was prevented from discharging her functions as Returning Officer was when she submitted the report to the Secretary of the Panchayat. In Ext.R2(b) report, there is nothing to indicate that she was prevented by the petitioner or anybody else from discharging the functions as Returning Officer. On the other hand, the report only indicates that the President of the Panchayat suggested the names of nine persons and the Chair Person and and Vice Chair Person were also selected. In these circumstances, the Returning Officer stated in the report that she had no role to play as Returning Officer. She did not say that she could not discharge her functions as Returning Officer, but she categorically stated that there was no necessity to exercise the function as the Returning Officer as the names of nine persons were suggested and accepted. Ext.R1(b) report was not considered by the Ombudsman. On the other hand, the version of PW2 in evidence was relied on to arrive at the conclusion that the petitioner is guilty of maladministration. 10. It is also relevant to note here that the incident took place on 13.2.2008. O.P.No.449 of 2008 was filed by the fourth respondent, Thomas P.Oomman, before the Ombudsman only on W.P.(C) NO.20117 OF 2009 H :: 8 :: 9.5.2008. P.O.Thomas, the fifth respondent herein, filed O.P.No.657 of 2008 before the Ombudsman only on 2.7.2008. The specific case of the petitioner is that the fifth respondent is instrumental for instigating the fourth respondent to file O.P.No.449 of 2008. Later, apprehending that the fourth respondent would not continue to oblige the fifth respondent, the fifth respondent filed O.P.No.657 of 2008. It is also the specific case of the petitioner that the fifth respondent was the Vice President of the Panchayat for a term as agreed between the ruling parties and after the agreed term he did not lay down the office. The fifth respondent is not in good terms with the petitioner. Even on earlier occasions, the fifth respondent had filed petitions against the petitioner in respect of the conduct of election. It is stated that the petitioner was conscious of the same and he participated in the meeting of the election and all the formalities were complied with. 11. The Ombudsman did not consider the sequence of the events which took place and the time lag between the date of election and the date of filing of the Original Petitions. The specific case of the petitioner is that the evidence of the Returning Officer cannot be believed on the ground that she is also a sympathiser of a W.P.(C) NO.20117 OF 2009 H :: 9 :: political party and she is supported by the fourth respondent, who also belongs to the same political party. The Returning Officer was under the threat of transfer and she wanted to oblige the fourth respondent for avoiding the transfer. It is true that these are allegations made against the Returning Officer. But, such allegations make the necessity of scrutinizing the evidence of the Returning Officer with great care. In such a process, we have to see whether her version that she was prevented from discharging her functions as Returning Officer is to be accepted. In that context, the first reaction of the Returning Officer, expressed in the form of the report submitted immediately after the election, is to be taken note of. There is no allegation at all in that report against the petitioner or anybody else. There was no case for the Returning Officer that the election could not be held and she was prevented from conducting the election and therefore, a fresh election is required. There is also no case that she could not conduct the election because of the obstruction caused by the petitioner or any other person. In these circumstances, I am of the view that the Ombudsman was not justified in holding that the petitioner is guilty of maladministration. The finding that the petitioner is guilty of maladministration would result in serious consequences. Such a finding could be arrived at W.P.(C) NO.20117 OF 2009 H :: 10 :: after meticulously considering the material documents and evidence in the case. Taking the version of PW2 alone, was not a substitute for such a process. For the aforesaid reasons, Ext.P1 order passed by the Ombudsman is quashed and O.P.Nos.449 of 2008 and 657 of 2008 filed by respondents 4 and 5 are dismissed. (K.T.SANKARAN) Judge ahz/