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IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. CHITAMBARESH, J.
P.C. GEORGE – Petitioner
Versus
THE HON'BLE SPEAKER, KERALA LEGISLATIVE ASSEMBLY – Respondent
W.P. (C). No. 37428 of 2015
Decided On : 14-03-2016
Constitution of India, Articles 190(3), 212 and 226 - Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly - Rules 169(2) - Members of Kerala Legislative Assembly (Disqualification on Ground of Defection) Rules 1986 - Rule 8 - Resignation letter - Validity of - 'voluntary' and 'genuine' - Whether reasons are genuine or not going by plain constitutional provisions - Letter of resignation by writing of petitioner under his hand addressed to Speaker under Article 190(3)(b) of Constitution adds solemnity to it - What more is required to show that the letter of resignation is voluntary and genuine when the same is presented in person by a member of the Legislative Assembly to the Speaker - Question of disqualification of the petitioner was imminent had the Speaker not accepted his resignation within the frame work of the proviso to Article 190(3) Held, The words 'voluntary' and 'genuine' occurring in the proviso to Article 190(3)(b) only mean 'out of own free will' and 'not counterfeit' and nothing more - A suspicion that the letter of resignation is not voluntary or not genuine need arise only when the same is handed over to the Speaker by a person other than the signatory - Lack of bona fides on the part of a member of Legislative Assembly in submitting the letter of resignation is not a ground enough for its non-acceptance by the Speaker - Speaker not passing any orders on the resignation letter put in by the MLA and disqualifying him in the interregnum - Speaker acted mala fide - It is the constitutional right of the petitioner to tender his resignation as a member of Kerala Legislative Assembly under Article 190(3) of Constitution - Speaker not passing any orders on the resignation letter put in by the MLA and disqualifying him in the interregnum - The procedure adopted by the Speaker is not a mere irregularity but a conscious annihilation of the constitutional right - What is the purpose in considering the letter of resignation by the Speaker after the petitioner has vacated his office as a member of the Kerala Legislative Assembly ? The letter of resignation has only to be thrown to waste bin since the same has ceased to be of any relevance after the disqualification of the petitioner as a member of the Assembly. The procedure adopted by the Speaker is not a mere irregularity but a conscious annihilation of the constitutional right of the petitioner - It is beyond any pale of doubt that the quasi-judicial decisions of the Speaker on the resignation and disqualification of a member of a State Legislative Assembly is open to judicial review - Letter of resignation shall not be accepted only if the conditions laid down in the proviso to Article 190(3) of the Constitution are satisfied - The principle that a resignation will not come into effect unless accepted cannot be applied in the case of a member of a House of the Legislature of a State, as it is not a case of a contractual relationship between an employer and employee.
V. CHITAMBARESH, J.
1. I will rather resign than face an ignominious exit thought - a Legislator. But the Speaker kept the resignation pending and disqualified the Legislator. Was this action justified and justiciable is the short question.
2. The first respondent is the Speaker of the Kerala Legislative Assembly of which the petitioner and the second respondent (who was later elected as the Chief Whip of the Kerala Government) are members. The second respondent moved Ext. P1 petition before the first respondent for disqualifying the petitioner in terms of Article 191 of the Constitution of India. The second respondent contended that the petitioner has voluntarily given up his membership of the political party to which he belonged and hence disqualified. As many as 19 acts of the petitioner were enumerated in Ext. P1 petition to show that the petitioner has incurred disqualification as per Para (1)(a) of the Tenth Schedule of the Constitution. The most prominent amongst the items is the letter written by the petitioner to the Speaker seeking permission to vote and abstain from voting based on issues. The preliminary objection raised by the petitioner on the maintainability of Ext. P1 petition was turned down by the Speaker and affirmed by this Court in W.P. (C) No. 28870/2015. The petitioner filed Ext. R2(c) objection to Ext.P1 petition and maintained that the acts complained of do not constitute a voluntary giving up of his membership.
3. PWs 1 to 10 were examined on behalf of the second respondent and RWs 1 to 9 were examined on behalf of the petitioner in the proceedings before the Speaker which spanned for four months. The proceedings stood posted to 12.11.2015 on which date the petitioner submitted a notes of argument and also a letter of resignation in person to the Speaker. The Speaker 'kept the resignation in abeyance pending enquiry' and rendered Ext.P27 decision disqualifying the petitioner in terms of Para 6(1) of the Tenth Schedule. It appears that the resignation was not accepted by decision dated 13.11.2015 on which date only was Ext. P27 decision also taken by the Speaker. The purported decision of the Speaker on the letter of resignation was admittedly not communicated to the petitioner at any point of time and came to light from the files only.
4. The petitioner contended that there was no reason for the Speaker not to accept his resignation or even take a decision thereon well before Ext.P27 decision of his disqualification. A constitutional right inhered in him to tender a resignation as a member of the Legislative Assembly which has been trampled upon by its non-consideration at the material time. There is no point in considering his resignation well after the petitioner is disqualified and has ceased to be a member of the Legislative Assembly by disqualification. The petitioner asserted that the Speaker was a tool in the hands of his political rivals and that his action is wholly vitiated by mala-fides in the circumstances. The second respondent contended that the resignation is not voluntary or genuine and that the Speaker was justified in deferring a decision thereon pending enquiry. Whether there was an enquiry or any inputs received as regards the resignation being not voluntary and genuine is irrelevant and that the Speaker has absolute discretion. The second respondent concluded by stating that the proceedings in the Legislature of the State cannot be called in question in court and are beyond judicial review.
5. I heard Mr. P. Ravindran, Senior Advocate on behalf of the petitioner, Mr. Tom K. Thomas, Special Government Pleader on behalf of the Speaker and Mr. S. Sreekumar, Senior Advocate on behalf of the second respondent.
6. Chapter III of the Constitution of India deals with the State Legislature including the disqualifications of members and Article 190 thereof speaks of 'vacation of sea
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