Mary John vs Vallathol Nagar Grama Panchayath and Others

P. Shanmugam, J.—Both these Original Petitions are filed under Article 226 of the Constitution of India by the same, Petitioner. The prayers in these petitions are to quash the orders disqualifying the Petitioner from the membership of the Panchayath and for a declaration to declare that Section 35(k) of the Kerala Panchayath Raj Act, 1994, hereinafter referred to as the Act, to the extent of limiting the period of absence for disqualification to "if within the satid period not less than three meetings have been held" is arbitrary and unconstitutional.

Petitioner is a resident of Vallathol Nagar Grama Panchayath. She is a well-known social worker, professional artist and an organiser. She was elected as a member of the Panchayath from Ward No. III which was reserved for women during October, 1995 as an independent candidate. The Panchayath has 10 seats out of which six were won by the L.D.F. and the other three seats were won by candidates from B.J.P., Muslim League and Congress one each.

During August and September, 1997 in connection with the 50th Anniversary of Indian Independence Celebrations abroad Petitioner was invited to Spain and Italy. In the last Panchayath committee meeting held on 20th August 1997 she had informed of her leaving abroad to all the members including the Panchayath Secretary. She was told by the Secretary that there is no need for any written application for seeking permission if the tour is less than three months. Therefore, the Petitioner took back the application which she wanted to submit for the permission to be absent in the committee meetings for three months. She left India on 23rd August 1997 and she could be back only on 2nd October 1997. On coming back she was shocked to rcceive a letter dated 31st October 1997 informing her that she cannot continue as a member as per Section 35 of the Act. Petitioner was asked to approach the Panchayath Committee u/s 37(2) of the Act, if she is advised. She submitted a reply Ext. P-7 on 5th November 1997. However, the Committee rejected the said application by Ext. P-8. Petitioner challenged the orders in Exts. P-6 and P-8 in O.P. No. 21154 of 1997. The impugned orders were stayed in C.M.P. No. 37965/97 and she was continuing as a member. Petitioner was again to leave India in pursuance to an invitation to participate in a seminar to be held in London on 22nd February 1998. This time she submitted an application dated 18th February 1998 for permission for her absence and she left India on 19th February 1998. However, on coming back to India she received a letter dated 13th April 1998 stating that she had not attended the four Panchayat Committee meetings held on 26th February 1998, 12th March 1998, 18th March 1998 and 23rd March 1998 and four Panchayath Standing Committee meetings held on 26th February 1998, 10th March 1998, 16th March 1998 and 21st March 1998 and that she had automatically lost her membership of the Panchayath u/s 35(k) of the Act. Petitioner immediately submitted a representation, Ext. P-8, dated 17th April 1998 to the Panchayath seeking to cancel the letter dated 13th April 1998. Petitioner filed the second O.P. No. 7861/98 seeking to quash Ext. P-7 communication dated 13th April 1998 of the Special Grade Secretary of the Panchayath and to declare that Section 35(k) of the Act to the extent stated above is arbitrary and unconstitutional.

In both Original Petitions counter-affidavits have been filed on behalf of the State and the Panchayath. In O.P. No. 7861/98 a memo has been filed by the Government Pleader to adopt the counter filed in O.P. No. 21154/97. The fact that the Petitioner did not attend the four Panchayath Committee meetings initially on 4th September 1997, 17th September 1997, 4th October 1997 and 15th October 1997 and subsequently on 26th February 1998, 12th March 1998, 18th March 1998 and 21st March 1998 is not disputed. On both occasions the case of the Petitioner is that she had sought for permission for her absence. For the first spell of absence, according to her, she was informed that no written permission is needed and therefore she took back application for leave. For the second spell she had in fact given a written request for leave. The first Respondent''s counter states that "there was no discussion or communication by the Petitioner in the meeting". The further averment that she was told that she need not give any written application if the tour is for less than three months is a statement of legal consequence. Of course the Secretary of the Panchayath has specifically denied the averments in both counters.

The Petitioner has raised serious allegations of mala fide against the Respondents. According to her, she being a lady independent member, the political parties are trying to unseat her and to have a re-election in the ward taking advantage of her absence. She also pleaded discrimination in the sense that a Muslim member has been absent more than six months and a Congress member is not present whereas she alone was discriminated for her alleged absence without permission.

Though the allegation of mala fides were denied in the counter, the Secretary of the Panchayat has referred to extraneous and totally unconnected allegations against the Petitioner besides making it on personal level. It is stated as thus: "The attempt of the Petitioner is to cling to the post against the popular will even after acquiring the disqualification". On the Medical Certificates produced by the Petitioner to support her extension of stay the Secretary states thus ''in this connection it is pertinent to mention that the Petitioner and her husband are facing prosecution for issuing bogus certificates to candidates from foreign countries to the effect that they have undergone theatrical classes and have completed certain courses. The veracity of Exts. P-1 and P-1(a) certificates are to be viewed under the cloud of the forgery practised by the Petitioner and her husband". The Secretary of the Panchayat is a Government servant u/s 179 of the Act and his functions are set out u/s 182 of the Act. The allegation of mala fide was made against the President of the Panchayat and the committee. However, the Secretary files counter on their behalf and has made irrelevant and unwarranted comments which are quite out of place. This only strengthens the case of the Petitioner that Panchayat President and the committee are actuated by bias and mala fide consideration.

However, the most substantial point raised and argued in these Original Petitions is as to the constitutional validity of Section 35(k) of the Act. For the purpose of analytical appreciation of the case the relevant portions of Section 35 of the present Act as well as Section 20 of the old Act are extracted below:

Section 35 Section 20

Disqualifications of members.-Subject to the provisions of Section 36 or Section 102, a member shall cease to hold office as such, if he-. "Disqualification of members.-Subject to the provisions of Section 22, a member shall cease to hold office as such if he-.

(a) * * * (a) * * *

(k) absents himself without permission of the Panchayat concerned from its meetings or any committee thereof for a period of three consecutive months reckoned from the date of the commencement of his term of office, or of the last meeting which he attended, or of the restoration to office, as member under Sub-section (1) of Section 37, as the case may be, or, if within the said period, not less than three meetings have been held, absents himself from three consecutive meetings held after the said date: (m) absents himself from the meetings of the Panchayat for a period of three consecutive months reckoned from the date of the com-mencement of his term of office, or of the last meeting which he attended, or of his restoration to office as member under Sub-section (1) of Section 21, as the case may be, or if within the said less than three meetings have been held, absents himself from three consecutive meetings held after the said date:"

Three changes are made in the New Act:

(1) A member can obtain permission for absence.

(2) Absence from any committee meeting is also counted for disqualification.

(3) The absence of three consecutive meetings within the period of three months.

In other words under the New Act instead of "if less than three meetings are held within three months". The word "not" is added which makes absence of three meetings within the period of three months, a disqualification.

The requirements of Section 35(k) of the Act for disqualifications are as follows: (1) A member should absent himself without permission; (2) absence for a period of three consecutive months and (3) if within this period not less than three meetings were held and the Petitioner absenting from these consecutive meetings.

As per the earlier provision and from the first limb of the present Section 35(k) of the Act it is clear that minimum period of absence for disqualification is three months. As per the previous Act, if less than three meetings are held within three months, the period for reckoning absence from disqualification is extended beyond three months. However, under the present Act by the introduction of the word "not", a member will be disqualified if he has not attended three meetings held in short intervals within the period of three months. In other words the emphasis for absence was on the period, namely three months under the old Act and under the present Act the emphasis is on the meetings and not on the period.

As per Section 35(k) of the Act absence from any three consecutive meetings of the committee can also be, a round for disqualification. Under the Kerala Panchayath Raj Act, there are five committees.

(a) Panchayath Committee u/s 16 of the Act.

(b) Standing Committe u/s 161 of the Act.

(c) Constitution of Functional Committee u/s 163 of the Act.

(d) Sub Committees and Ward Committees u/s 164 of the Act.

(e) Joint Committee u/s 165 of the Act.

Section 162(4) provides for an automatic inclusion of woman member to the Standing Committee. The meetings of the Panchayath shall be held at such intervals as may be prescribed u/s 161 of the Act. Therefore, it is quite possible that the meetings of the Panchayath as well as the various committee meetings can be held simultaneously or even on days with close proximity. As a matter of fact in this case itself it can be seen from Ext. P-7 dated 13th April 1998 that the Petitioner was alleged to have been absent for the committee meeting as well as the Panchayath meeting held on the same day, i.e. 26th February 1998. The dates of those meetings held are given below:

Sl. No. Meetings of Dates of meetings held

Standing Committee Meetings 26-2-1998 10-3-199816-3-1998 21-3-1998 2. Panchayat Committee Meetings 26-2-1998 12-3-1998 18-3-1998 21-3-1998

It these meetings of two bodies can be reckoned for the purpose of disqualification, a person can be disqualified within 12 days for not attending of the Panchayat as well as the committee meetings taken together. That is in between 26th February 1998 and 10th March 1998.

Now the question that arises for consideration is whether the latter portion of section 35(k) of the Act is arbitrary, unreasonable and unconstitutional. The contention of learned Counsel for the Petitioner is that more and more administrative and financial powers are given to the Panchayaths under the new Act which brings in increasing political activity and rivalry. There is an attempt to eliminate and marginalise minority members or independent members. No procedure has been prescribed for obtaining permission for absence. Permission can be denied or granted on personal and political considerations. No prescribed period of notice is formulated for the various committee meetings. Therefore, it is quite possible to hold committee meetings at short notice and intervals and disqualify a member for their absence. If a member is unable to attend even due to accident or illness for short periods of 10 or 20 days where it may not be practical even to apply for permission there is automatic disqualification u/s 35(k) of the Act if three meetings are held during that period. This is not contemplated under the Constitution of India while giving more powers and wider participation to the members of the Panchayat.

The counter filed by the State do not meet any of the points raised by the Petitioner. Ground Nos. D, E, and F in O.P. No. 21154/97 and Ground Nos. A, D, E, and F specifically dealt with the validity of Section 35(k) of the Act. Apart from stating that there is no ambiguity in Section 35(k) of the Act none of these grounds have been replied to.

Learned Additional Advocate General, Mr. Yousef submitted that the intention of the legislature is that the elected members should be responsible to the Panchayat. He further submitted that the Panchayat Committee is a continuing body and it is mandated to meet twice a month as per Section 161 of the Act with a provision for obtaining permission for absence. He also referred to the preamble to the Kerala Panchayat Raj Act, 1994 wherein it is stated that the Act is intended for Securing a greater measure of participation of the people in planned development and in local governmental affairs, and the statement of objects and reasons by Act 13 of 1994 which is as follows:

In order to enshrine in the Constitution certain basic and essential features of Panchayat Raj Institutions, to impart certainty, continuity and strength to them, the Parliament has added a new part relating to Panchayats in the Constitution by the Constitution (Seventy-third Amendment) Act, 1992.

Learned Additional Advocate General contended that the change brought out in the new Act is in consonance with the objects and reasons. According to him, it is possible to read down the provision of absence in reference to meeting of Panchayat alone without combining it with committee meetings. The provision is not unreasonable or illegal.

A reference to analogous provision relating to Parliament and State Legislature members may be useful. Article 101 deals with the disqualification of members of Parliament. Sub-clause (4) of Article 101 of the Constitution states that no person can be the member of the House of Parliament for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant. Similarly Article 190 of the Constitution provides for vacation of seats if for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant. Therefore in case of disqualification of a Member of Parliament and Legislature the House will have to declare the seat vacant. But in the case of Panchayat disqualification takes place automatically since a member shall cease to hold the office on absenting himself for three consecutive meetings. There is no opportunity to a member to explain her absence before the disqualification takes place. In other words there is no pre-decision notice or hearing or consideration by the Panchayat for disqualification. Section 37(2) of the Act deals with only restoration of a member after disqualification on his application. Therefore, while testing the validity of the section on the ground of reasonableness it is pertinent that a member can be disqualified for not attending both the committee as well as the panchayat meetings which could be held within 15 days and for absence justifiably or not since there is automatic cessation of membership. This disqualification is handed down to the member who has been elected without a notice or opportunity or a decision. The challenge to the provision is confined to on two grounds, viz., the section is unreasonable and arbitrary and that the provision is violative of principles of natural justice. The absence of an opportunity and violation of principles of natural justice before depriving a member of his membership could be taken as additional ground of arbitrariness.

In Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, the Supreme Court was dealing with the statutory regulation empowering the Corporation to terminate the services of their employees after giving one month''s notice or pay in lieu of notice. It was held that the impugned regulation which confers powers on the authority to terminate the services of a permanent and confirmed employee without giving any opportunity of hearing is wholly arbitrary, uncanalised and unrestricted violating principles of natural justice as well as Article 14 of the Constitution. The procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. The Supreme Court in that judgment rejected the contention to read down the provisions in order to make it constitutionally valid by separating and excluding the part which is invalid stating that where the plain and literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulation is that it confers arbitrary, uncanalised, unbridled, unrestricted power without recording any reasons and without adhereing to the principles of natural justice as envisage in Article 14 of the Constitution the same cannot be read down to save the said provision from constitutional invalidity by bringing or adding words in the said legislation. In interpreting the provisions of the Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning that it can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity. It was further held that where the language of the regulation is so crystal clear that no two interpretations are possible to be placed on it, it is not permissible to read in it any meaning other than what is clearly sought to be conveyed.

While agreeing with the majority view Ramaswamy, J. has held that the statement of law, Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, , namely "the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard of norm which is not arbitrary, irrational or irrelevant. The action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory", would apply for legislation too. It was observed that "this statement of law, though was made in the context of contractual relations, it is a general law with width and amplitude which permeates the entire spectrum of actions, legislative as well as executive". (emphasis added)

In R.M.D. Chamarbaugwalla Vs. The Union of India (UOI), the Supreme Court held that when a question arises as to the interpretation to be put on an enactment, what the Court has to do is to ascertain "the intent of them that make it'''' and that must of course, be gathered from the words actually used in the statute. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act.

In Minerva Mills Ltd. and Others Vs. Union of India (UOI) and Others, it was held by the Supreme Court that where the express words of the statute are clear and intended to give power without limitation, the statute cannot be saved by reading into them words and intendment of a diametrically opposite meaning and content. In Sindri v. Union of India AIR 1981 S.C. 344 the Supreme Court held that the concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, the Constitutional Bench held that the principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise it should be no procedure at all and the requirement of Article 21 would not be satisfied.

In E.P. Royappa Vs. State of Tamil Nadu and Another, Bhagwati, J. observed that "in fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14".

In State of Tamil Nadu and Others Vs. Ananthi Ammal and Others, the Supreme Court held that when a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. In AIR India Vs. Nergesh Meerza and Others, the Supreme Court held that even though the conditions imposed regarding the retirement and termination may not be violative of Article 14 on the ground of discrimination but if it is proved to the satisfaction of the court that the conditions laid down are entirely unreasonable and absolutely arbitrary, then the provisions will have to be struck down.

What is the test of reasonableness? In The State of West Bengal Vs. Anwar Ali Sarkar, Their Lordships observed:

...can fair minded, reasonable, unbiased and resolute men, who are not awayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair....

The classification of members, absenting for three meetings are grouped for the purpose of disqualification. The Supreme Court in The State of West Bengal Vs. Anwar Ali Sarkar, formulated two conditions for a permissible classification to avoid infringment of Article 14 of the Constitution of India as follows:

(1) That the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and

(2) that the differentia must have a rational relation to the object sought to be achieved by the Act.

In Sri Venkata Seetaramanjaneya Rice and Oil Mills and Others Vs. State of Andhra Pradesh etc., the Supreme Court laid down the guiding principles of interpretation of a statute. It was held that the court must attempt to ascertain the intention of the Legislature by considering all the relevant provisions of the statute together and should not read the provision in an isolation. In dealing with this vexed question, sometimes it is necessary also to enquire whether the conclusion would hamper the working of the statute or would lead to the anomalous position that the statute may loss its efficacy. In Ram Dial and Others Vs. The State of Punjab, while dealing with the provisions of Punjab Municipalities Act empowering the State Government to disqualify a sitting member on reasons of public interest the Supreme Court held that the provision was discriminatory and struck down as it is hit by Article 14 of the Constitution. Of course the Supreme Court held that one of the provisions provides for notice and hearing while the other does not and, is, therefore, more drastic and arbitrary.

The preamble to the Act states that the New Act is enshrined to establish a three-tier system for securing a greater measure of participation. The object of the Act is to impart certainty, continuity and strength. Section 161 of the Act states that the Panchayath shall meet at least once a month. The first limb of Section 35(k) of the Act allows the members to absent from the meetings for three consecutive months whereas the sccond limb of the section restricts the absence for three consecutive meetings. Since there is no restriction to the number of meetings a Panchayath or its committee can hold and absence in three meetings taken individually or jointly would disqualify a member. Thus the provision made in the first limb regarding three consecutive months period is taken away or becomes meaningless by the later portion of the section. If the word ''not'' is not there then the meaning is in consonance with the earlier portion, ie. if for instance only two meetings were held in the three months period, then in order to disqualify the member there must be three consecutive meetings after three months. I find no reason in including the word ''not'' so as to confine to three meetings making earlier portion of the section ineffective. Further for absenting from the meeting of the committees a member is deprived of membership of Panchayat. Section 35 of the Act states that "a member shall cease to hold office". Member is defined u/s 2(xxiv) of the Act as the member of a Panchayat at any level. Membership in a committee sometimes are ex-officio. Under Sub-section (3) of Section 162 of the Act, President and Vice- President shall be ex-officio members of all standing committee. Sub-section (4) of Section 162 states that one person shall be from the Scheduled Caste or Scheduled Tribe and one shall be a woman. There is possibility of deprivation of Panchayath Committee membership if they are absent from the committee meetings. The term of office of a member of a Panchayath is five years as per Section 149 of the Act read with Article 243E of the Constitution of India. A member who has been elected for a term of five years can be disqualified for absenting 15 days automatically. There is possibility of holding three meetings within 14 days as in this case. Panchayath meeting was held on 26 February 1998, committee meetings were held on 26th February 1998 and another on 10th March 1998. Again Panchayath meeting was held on 12th March 1998. This provision cannot help greater measure of participation or continuity of membership. There may have to frequent election to fill up the vacancies, if the provision is enforced.

Unlike in a case of the Legislature where they decide about the vacancy here the provision operates automatically and the Secretary informs the cessation of membership. This provides no opportunity to the member before the deprivation to put forth his justification for his absence or non-absence. The only course is to go for an enquiry before the Election Commission u/s 36(1) or restoration u/s 37(1) of the Act. This, in my view, unreasonably and arbitrarily restricts the right of a member of a Panchayat.

The object of wider participation and continuity as envisaged under the Panchayath Act is defeated by introduction the word ''not'' in the later portion of Section 35(k) and including and combining the meetings of committee for purpose of absence. In the light of the clear language there is no possibility of excluding the meetings of the committee or combining it with the Panchayath meeting as suggested by Additional Advocate General.

Considering the serious conditions required for disqualification under Clause (a) to (j) to Section 35 of the Act the legislature would not have intended that an absence of member for three consecutive meetings which is possible within the 15 days to deprive the membership of a duly elected member. The differentia that is, the basis of classification and object of the Act are distinct things. The differentia should have nexus with the object and it should also intelligible. The classification here is arbitrary and clearly unreasonable.

For the above reasons I hold Section 35(k) of the Act to the extent includes and combines committee meetings and limiting the period of absence for disqualification to "if within the said period not less than three meetings have been held" is violative of Article 14 of the Constitution of India and hence unconstitutional. In other respects Section 35(k) of the Act is valid and enforceable. Consequently Exts. P-7 and P-8 in O.P. No. 7861/98 and Ext. P-6 in O.P. No. 21154/97 are quashed and the Original Petitions are allowed.