Case: Jagjit Singh Vs. State Of Haryana

4. Writ Petition No.287 of 2004 (Jagjit Singh) and Writ Petition No.292 of 2004 (Karan Singh Dalal). The petitioner contested election as a candidate of National Congress Party (NCP) and was the only elected member of the party in the Assembly. The case of the petitioner is that on 28th December, 2003 due to organizational difficulties and differences with the central leadership of NCP which is primarily based in Maharashtra/Meghalaya, the workers/leaders of the NCP at Haryana decided to cause a split by passing a unanimous Resolution. The split was recognized by central leadership of NCP. On split, a new political party named Democratic Dal of Haryana was formed. The petitioner on 29th December, 2003 filed application before the Speaker placing the factum of split and formation of the new party on record. On 31st December, 2003, respondent No.3 filed a complaint before the Speaker under paragraphs 2 and 6 of the Tenth Schedule of the Constitution of India seeking disqualification of the petitioner on the ground that he has voluntarily defected from NCP and formed/joined Democratic Dal of Haryana. On 17th March, 2004, Speaker issued notice to petitioner calling for his comments to the allegations made against him. However, notice could not be served on the petitioner. The case of petitioner is that on 30th April, 2004 merger of Democratic Dal of Haryana took place with Indian National Congress in accordance with law and, therefore, the case is covered by Paragraph 4 of the Tenth Schedule. In this view, no proceedings for disqualification could be initiated or continued. A further notice dated 23rd April, 2004 was also issued to the petitioner. A fresh notice dated 18th May, 2004 was issued calling upon the petitioner to file reply on or before 4th June, 2004 that was served on the staff of the petitioner on 31st May, 2004. The petitioner on 4th June, 2004 filed an application before respondent no.2Speaker placing on record certain facts and praying for extension of time by four weeks to file reply. On 23rd June, 2004, request of the petitioner for adjournment of proceedings beyond 28th June, 2004 was rejected by the Speaker who heard the arguments and listed the matter for further proceedings for 24th June, 2004. On 24th June, 2004, proceedings were adjourned to 25th June, 2004 for orders. Further case of the petitioner is that the Speaker on 24th June, 2004, called him on his mobile phone and stated that if petitioner decides to abstain from voting in election of Rajya Sabha on 28th June, 2004, his disqualification can be avoided. The impugned order was passed on 25th June, 2004.The facts of writ petition No.292 of 2004 are almost similar with the only difference that the petitioner here was member of another political party, namely, Republican Party of India (RPI). All other facts including the dates, grounds,and thereafter manner of service of the notice are almost similar.W.P.No.291 of 2004 (Dev Raj Dewan) and W.P. Nos.290,The petitioner in Writ Petition No.291 of 2004 was elected as an independent member of the Assembly and as such supported from outside the Government of Indian National Lok Dal Party headed by respondent No.5, as Chief Minister for more than four years from February, 2000 to June, 2004. The case of the petitioner is that on 14th June, 2004, he withdrew his support to Government of respondent No.5 and declared his outside support to Indian National Congress in the State of Haryana. On 15th June, 2004, a complaint was filed against him by respondent No.3 under paragraphs 2 and 6 of the Tenth Schedule of the Constitution on the ground that petitioner had joined the Indian National Congress.8.Complaints were also filed against petitioners in Writ Petition Nos.290,g their disqualification on similar grounds. The Speaker, respondent No.2, issued notice to the petitioner on 16th June, 2004 for submitting comments on 24th June, 2004. The application dated 23rd June, 2004 filed by respondent No.3 before Speaker to place on record additional evidence was taken up by the Speaker on 24th June, 2004. The copies of application dated 23rd June, 2004 for placing on record additional evidence, affidavit of Ashwani Kumar along with transcripts of interview on Zee TV and Haryana News and the alleged page of Congress Legislature Party Register dated 16th June, 2004 were handed over by the Speaker to the counsel for the petitioner at 3.30 p.m. on 24th June, 2004 with a direction to file reply thereto by 10 a.m. on the next date i.e. 25th June, 2004. On 25th June, 2004, petitioner filed a short reply to the main petition alleging malafides against the Speaker and the Chief Minister and denying that he joined Indian National Congress. A reply was also filed on that date to the application stating that fair opportunity to contest the proceedings had not been granted and the evidence is concocted and manipulated. An opportunity was sought toAshwani Kumar and also to lead evidence. On the same date at 1.00 p.m. the impugned order was passed. The facts in the other three cases are almost identical. According to the petitioners, there is no material for coming to the conclusion that they joined Indian National Congress. They attribute malafides to respondent Nos.2 and 5. According to them, the sole purpose of respondent No.2 was to deprive them of their right to exercise their franchise in the Rajya Sabha elections to help the son of the Chief Minister. They also dispute the correctness of the T.V. and newspaper reports to the effect that they have all joined Indian National Congress. The contention is that joining a political party is different from extending outside support to it. They contend that in a similar manner the petitioners without joining the party of respondent No.5, for nearly 4 years were extending his Government outside support and now their decision to extend outside support to Indian National Congress cannot and does not amount to joining the said political

Reasoning: The principles of natural justice cannot be placed in such a rigid mould. The court, on facts of a case despite denial of opportunity to lead evidence, may come to the conclusion that reasonable opportunity has been afforded to the person aggrieved. The principles of natural justice are flexible and have to be examined in eachdefection a member cannot be permitted to get away with it without facing the consequences of such defection only because of mere technicalities. The substance and spirit of law is the guiding factor to decide whether an elected independent member has joined or not a political party after his election. It would not be a valid plea for a person who may have otherwise joined a political party to contend that he has not filled up the requisite membership form necessary to join a political party or has not paid requisite fee for such membership. The completion of such formalities would be inconsequential if facts otherwise show that the independent member has joined a political party. The facts of the four cases of independent elected members are required to be examined in the light of theseto those reports, the leader of the Opposition in the State Assembly had stated that these members were taken to Congress President and had joined the said party. Copies of the news items as appearing in "The Tribune", "The Times of India", "Hindustan Times", "Punjab Kesari" and "Dainik Jagran" were filed with the complaints. It was further alleged that besides the news reports appearing in the print media, actions of these members joining the political and legislature parties of Indian National Congress were widely reported by the electronic media including Zee News television channel, Aaj Tak television channel and Haryana News of Punjab Today televisionis evident from the above facts that the petitioners declined to watch the recording, failed to show how and what part of it, if any, was not genuine but merely made general denials and sought permission toAshwani Kumar and opportunity to lead evidence.The sufficiency of the time granted depends upon the facts and circumstances of each case. Having regard to the facts as noticed hereinbefore, we are unable to accept the contention that in the present case, the petitioners were not granted sufficient time to meet the case against them. It has to be remembered that the specific averment in respect of materials filed had already been made in the complaint dated 15th June, 2004. The material filed on 23rd June, 2004 was supplementary to further support the allegations in the complaint dated 15th June, 2004. The petitioners despite grant of opportunity had declined to watch the recorded interview. It is one thing to watch the interview, point out in what manner the recording was not genuine but instead of availing of that opportunity, the petitioners preferred to adopt the course of vague denial. Under these circumstances, the Speaker concluded that "there is no room for doubting the authenticity and accuracy of the electronic evidence produced by the petitioner". The SpeakerSpeaker, thus, held that in view of the irrefutable and overwhelming documentary and electronic evidence, no other conclusion was possible than that on 14th June, 2004 these independent members of Haryana Vidhan Sabha joined the Congress Party. He has also referred to the documentary evidence regarding CLP meeting held on 16th June, 2004 in the form of original sheet of proceedings register of CLP containing the signatures of the petitioners. In respect of the signatures also, the Speaker has noted that the signatures of the petitioners on the original sheet of the CLP proceedings are the same as their signatures on the Vakalatnama filed by their counsel as is clear after comparison. It was strenuously contended by learned counsel for the petitioners that the Speaker while passing the impugned orders has relied upon his personal knowledge which is wholly impermissible for a tribunal and contrary to the principles of fair play and violative of principles of natural justice.The principles laid down in the above case, have no application to the facts of the present case. The two situations have no similarity. The Speaker has only noticed that he has had various opportunities to see the petitioners in the Assembly and those shown in the recording are the same persons. We are unable to find fault with this course adopted by the Speaker. There is also nothing wrong or illegal in comparing signatures and coming to the conclusion that the same are that of the petitioners. These proceedings before the Speaker are not comparable with the arbitration proceedings beforeare of the view that the Speaker has not committed any illegality by stating that he had on various occasions seen and heard these MLAs. It is not a case where the Speaker could transfer the case to some other tribunal. The doctrine of necessity under these circumstances would also be applicable. No illegality can be inferred merely on the Speaker relying upon his personal knowledge of having seen and heard the petitioners for coming to the conclusion that persons in the electronic evidence are the same as he has seen and so also their voices.From the facts and circumstances of the case and the conduct of the petitioners, it can be reasonably inferred that they were only interested in prolonging the proceedings beyond 28th June, 2004, the date fixed for Rajya Sabha elections. The argument that the Speaker passed the impugned order in haste as voting for Rajya Sabha elections was fixed for 28th June, 2004 is a double edged one since the petitioners were interested in prolonging the proceedings beyond 28th June, 2004 and the Speaker wanted to decide before it, if the petitioners had incurred disqualification under the Tenth Schedule.Undoubtedly, the Speaker has to comply with the principles of natural justice and cannot pass an order on the basis ofbut in the present case, it cannot be held that the impugned order suffers from any such infirmity. We are unable to accept the contention that the petitioners were not given a fair deal by the Speaker and principles of natural justice have been violated. It was also contended that paragraph 2(2) of the Tenth Schedule deserves to be strictly construed. The submission is that the word join in Paragraph 2(2) deserves a strict interpretation in view of serious consequences of disqualification flowing therefrom on an order that may be made by the Speaker.We are of the view that to determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a member joining a political party. At the same time,of formalities with a view to defeat the intent of paragraph 2(2) is also of no consequence. The question of fact that a member has given up his independent character and joined, for all intent and purposes, a political party though not formally so as to incur disqualification provided in paragraph 2(2) is to be determined on appreciation of the material on record. Applying this test here, it cannot be held that the Speaker committed any illegality in coming to the conclusion that the petitioners had joined the Indian National Congress. The conclusions reached by the Speaker cannot be held to be unreasonable, assuming that two views were possible.41. Under the aforesaid circumstances, we are unable to find any illegality in the impugned orders holding that the petitioners (in Writ Petition Nos. 290, 291, 293 and 294 of 2004) have incurred disqualification as provided in paragraph 2(2) of the Tenth Schedule of the Constitution of India. Now, we revert to the disqualification of the petitioners in Writ Petition Nos. 287 and 292 of 2004. It is not disputed that these petitioners have joined Indian National Congress. As already noted, these petitioners were lone members representing their respective parties in the Legislative Assembly. The Speaker in their cases has held that the protection of paragraph 3 of the Tenth Schedule is not available to a single member party. According to the petitioners, they are covered by the protected umbrella of paragraph 3 of the Tenth Schedule. The petitioners have been disqualified by the impugned order in exercise of power under paragraph 2(1) and paragraph 6. Paragraph 2(1) is subject to paragraphs 3, 4 and 5.42.In the present case, the question is of interpretation of paragraph 2(1) and paragraph 3 of the TenthWhether to vest such power in the Speaker or Election Commission or any other institution is not for us to decide. It is only for the Parliament to decide. We have noted this aspect so that the Parliament, if deemed appropriate, may examine it, bestow its wise consideration to the aforesaid views expressed also having regard to the experience of last number of years and thereafter take such recourse as it may deem necessary under the circumstances.