The main legal point established in the judgment is that the suspension of a sentence does not absolve a candidate of the guilt or the conviction, and the disqualification remains until the conviction is reversed, or the offence is pardoned, or a period of three years has elapsed from the date of expiration of the sentence.

Dama Seshadri Naidu, J.

Facts:

1. The petitioner, being a member of the third respondent Bank, is a contesting candidate in the ensuing election to the managing committee of the Bank. In response to Exhibit P1 notification issued on 07.01.2016, many members have offered their candidature to contest the election and accordingly filed their nominations.

2. The second respondent, the Returning Officer, having processed all the nominations, published Exhibit P2 final list of contesting candidates. Before the Returning Officer could publish Exhibit P2, at the stage of scrutiny, the petitioner had filed his objections concerning the candidature of respondents 5 and 6, who have suffered a conviction, as can be seen from Exhibit P3 judgment of the appellate court. Though their sentence was suspended by this Court through Exhibit P4 in a revision, the petitioner has contended before the Returning Officer that in terms of Rule 44 of the Kerala Co-operative Societies Rules (the Rules), respondents 5 and 6 have suffered a disqualification and their nominations should not be accepted.

3. As can be seen from the record, the Returning Officer passed Exhibit P5 order holding that the documents produced by the petitioner along with his objection are neither attested nor certified and that those documents are vague and 'ununderstandable'. Aggrieved, the petitioner has filed the present writ petition.

Rival Submissions:

Petitioner's:

4. Sri.P.C.Sasidharan, the learned counsel for the petitioner, has submitted that Rule 44(1)(c)(ii) of the Rules is categoric that unless the sentence is reversed, or the offence is pardoned, or three years has elapsed from the date of expiration of the sentence, no candidate who has been sentenced for an offence involving moral turpitude should be allowed to contest. According to him, Exhibit P4 suspension of sentence alone cannot absolve respondents 5 and 6 of the guilt or the conviction and that the stigma stands attached to them.

5. As regards the maintainability of the writ petition, the learned counsel has contended that in the light of the indisputable fact that respondents 5 and 6 have already earned a disqualification, accepting their nominations on any technicality is unconscionable. He has submitted that he has in presenti no alternative remedy, much less an efficacious one.

6. In elaboration of his submissions, the learned counsel has contended that the petitioner's remedy under Section 69 of the Act would come into picture only once the election is over. According to him, the petitioner's waiting till the election is over and then disputing the candidature of respondents 5 and 6 is a mere rigmarole. It is more so in the face of the indisputable fact that they did suffer the disqualification. Non-suiting the petitioner at this juncture, according to the learned counsel, only results in duplication of the election process and also needless expenditure to the respondent Bank, both of which are eminently avoidable.

7. In support of his submissions, the learned counsel has placed reliance on Damodaran v. Joint Registrar, 1989 (1) KLT 858, Santhosh v. Joint Registrar, 1994 (2) KLT 141, Nalinam v. Joint Registrar, 2011 (2) KLT 991, Abraham v. Returning Officer, 1993 (1) KLT 548 and Pankajaksha Panicker v. Venugopalan Nair, 1993 (2) KLT 641.

Respondents 5 & 6's:

8. Sri.V.G.Arun, the learned counsel for respondents 5 and 6, has, on the contrary, submitted that Section 8 of the Representation of Peoples Act, 1951 ('the RP Act'), contains an analogous provision, but with a certain distinction. According to him, Section 8 of the RP Act has employed a particular expression `conviction', whereas Rule 44 of the Rules has only used the expression 'sentence'.

9. In elaboration of his submissions, the learned counsel has submitted that in terms of Section 8 of the RP Act, the Courts have rightly insisted and accordingly clarified that the stigma attached in the wake of conviction could be removed only by way of suspension