A person receiving honorarium from a public corporation is deemed an employee under S.86 of the Kerala Municipality Act, justifying disqualification from holding office as Councillor.

1. This writ petition is filed by the petitioner seeking to quash Ext.P7 order passed by the Kerala State Election Commission in O.P.No.51 of 2017 dated 29.06.2018, whereby the petitioner is disqualified to continue as a Councillor of Kayamkulam Municipality, in accordance with the provisions of S.86 of the Kerala Municipality Act, on the basis of a complaint filed by a voter in Ward No.8 [mistakenly shown as Ward No.18 in the writ petition] of Kayamkulam Municipality, which ward was represented by the petitioner in the writ petition. Brief material facts for the disposal of the writ petition are as follows:

2. Petitioner was elected as Councillor, Ward No.8 of Kayamkulam Municipality in the election held on 05.11.2015. While representing so, petitioner was appointed as Director and Chairman of the Board of Directors of the Kerala Agro Industries Corporation, Thiruvananthapuram, as per Government Order dated 27.12.2016, evident from Ext.P1. The Kerala Agro Industries Corporation is a company incorporated under the Companies Act, 1956, and at the time of incorporation of the company, the State Government was a signatory to the Articles of Association. Art.62 of the Articles of Association enables the Chairman to preside over the general meeting and by virtue of Art.63, the Chairman can adjourn the meeting. So also, as per Art.66, the Chairman has a right for a second / casting vote. Therefore, according to the petitioner, the Chairman has only the powers delineated in the Articles of Association.

3. The Government have also issued order dated 09.09.2013, enumerating the duties and functions of the Chairman in Public Sector Undertaking and prescribing honorarium, sitting fee, use of vehicle etc., evident from Ext.P2. By virtue of Ext.P2, all Chairmen of Public Sector Undertakings are entitled to a honorarium of Rs.20,000/- per month and a sitting fee of Rs.500/- for attending the Board meeting and a car with driver is provided for official tour exceeding 1500 k.ms. per month, which shall be with the approval of Board of Directors.

4. While so, 1st respondent filed a petition as O.P.No.51 of 2017 before the 2nd respondent, under S.92 of the Kerala Municipality Act, 1994 [for brevity, 'the Act, 1994'], alleging that the petitioner accepts honorarium as the Chairman of the above specified Corporation while holding the post of Councillor of the Municipality, and hence disqualified from continuing as the Councillor of the Kayamkulam Municipality, evident from Ext.P3 complaint. Petitioner has submitted Ext.P4 objection, contending that petitioner as a Councillor is only getting honorarium, and as a Chairman of the Corporation, he was getting only honorarium and that apart, petitioner is not an officer or employee of the company and cannot be a deemed employee because of the acceptance of honorarium.

5. The 1st respondent was examined as PW1 and marked Exts.A1 to A4. Ext.A1 is the election identity card of the 1st respondent and Ext.A2 is the voters list of Ward No.8 of Kayamkulam Municipality. Ext.A3 is a letter dated 22.05.2017 from the Public Information Officer, Kayamkulam Municipality, informing that petitioner has received an honorarium of Rs.31,060/-. Ext.A4 is an information from the Public Information Officer, Kerala Agro Industries Corporation dated 23.05.2017, intimating that petitioner has not received any salary and received honorarium at the rate of Rs.20,000/- per month. Petitioner was examined as RW1, however, no documents are marked.

6. After appreciating the documents, pleadings and the rival submissions ma