M KANAGARAJ Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) This writ petition is filed by the petitioner praying to call for the records of the the election notification dated 04.02.2019 issued by the second respondent and the consequential notification dated 08.02.2019 and the advertisement given in Maalai Malar Daily dated 08.02.2019 by the fourth respondent in so far it relates to the election to the sixth respondent society from the stage of scrutiny of nomination and the lists dated 12.02.2019 and 13.02.2019 issued by the eighth respondent in Annexure-9 and under rule 52 (9) (d) and (f) publishing the valid and eligible list of nominations and final list of contesting candidates respectively and declaring that the respondents 9 to 19 have been elected unopposed, quash the same and consequently direct the second and fourth respondents to issue a fresh election notification for holding election for the sixth respondent society from the stage of scrutiny of nominations, by allowing all the candidates who have filed nominations to contest the election after allowing the candidates who want to withdraw the nominations, in a fair, free and transparent manner, strictly as per law and in accordance with rules and to take action against the eighth respondent for committing illegality and violation of Rules in collusion with the respondents 9 to 19.

(2.) The petitioner is working as a Technical Staff in the cadre of Senior Tradesman in State Express Transport Corporation, Chennai. According to the petitioner, earlier, he was elected as General Secretary of the State Express Transport Employees Union, which is affiliated to CITU. It is contended that out of the 5660 employees working in the State Transport Corporation, 2407 employees are members of the State Express Transport Employees Union, to which the petitioner was the General Secretary. Further, around 3000 employees of the State Express Transport Corporation are members of the sixth respondent society which is managed and administered by a Board of Directors consisting of 11 members and two of such elected members of the Board will be elected as President and Vice-President. According to the petitioner, the term of office of the 11 elected Board of Directors of the sixth respondent society expired even on 30.03.2018. Therefore, on 05.03.2018, a election notification was issued to conduct election for various societies, including the sixth respondent society, but it was cancelled. Subsequently, the fourth respondent issued a fresh election notification on 21.04.2018 to hold election to the Board of Directors of various Housing Cooperative Societies including the sixth respondent society. As per the notification, the date and time for filing of nomination, scrutiny of nomination and withdrawal of nomination was fixed and the election was slated to take place on 07.05.2018. Pursuant to the notification, on 30.04.2018, the petitioner was waiting in the office of the sixth respondent to get nomination forms from the fifth respondent, who is the Returning Officer. However, the fifth respondent, who came to the office of the sixth respondent at 11.30 am, left the office within 30 minutes without issuing nomination forms to the intending candidates, including the petitioner, who was standing in the queue. Even though the petitioner waited for the fifth respondent to return back, he did not turned down till the end of the day. Since the date fixed for submission of the nomination form is to expire on 30.04.2018, but the fifth respondent did not issue the nomination form, the petitioner has given a complaint to the Inspector of Police, D-1, Triplicane Police Station on that date namely 30.04.2018 at 1.30 pm. A copy of the complaint was also submitted to the second respondent/Election Commissioner in person and requested to take action against the fifth respondent. The petitioner, along with other supporters also held a demonstration condemning the act of the fifth respondent/Returning Officer in leaving the office of the sixth respondent without issuing nomination forms. In order to defuse the simmering tension, the second respondent called the fifth respondent over phone and enquired about his absence, however, the fifth respondent falsely replied as if he was available in the office and distributed 24 nomination forms to the intending candidates. Thus, according to the petitioner, the fifth respondent, conveniently issued the nomination forms only to the members of the Union purportedly with an instruction to submit only 11 nomination forms for getting elected to the 11 posts. In the above circumstances, the petitioner filed WP No. 11799 of 2018 praying to declare the notification dated 21.04.2018 issued by the fourth respondent for conducting election to the sixth respondent society as void and for a direction to the respondents 1 to 4 herein to conduct the election to the sixth respondent society in a free and fair manner by allowing the petitioner and other intending candidates to file nominations and to contest the election. Further, a Public Interest Litigation was filed before the Madurai Bench of this Court in which interim order was granted restraining the election commission from declaring the election conducted to various co-operative societies since there were large scale irregularities in holding elections. Ultimately, the said Writ Petition No. 11799 of 2018 filed by the petitioner was heard along with the batch of writ petitions and disposed of on 03.08.2018. By the said order dated 03.08.2018, the Division Bench of this Court constituted a committee headed by the Retired Judge of this Court for four regions in Tamil Nadu and directed the Committee to enquire into the complaints and grievance of the petitioners therein, including the complaint, if any, given by the candidates or voters.

(3.) According to the petitioner, as per the directions issued by this Court in the order dated 03.08.2018, the petitioner has filed a petition before the Honourable Committee for Chennai Region on 30.09.2018 and it was taken on file as Complaint No. 49 of 2018. The Committee, after hearing the parties and on the basis of the statement made by the Returning Officer, passed an order dated 30.10.2018, setting aside the election conducted to the sixth respondent and ordered for fresh election to be conducted from the stage of filing the nomination and to conduct the election freely and fairly. Challenging the order dated 30.10.2018 passed by the Committee, the respondents 2 to 4 therein filed WP No. 32373 of 2018 and sought for an interim direction to allow them to function as Board of Directors of the sixth respondent society. During the pendency of WP No. 32373 of 2018, as per the direction of the Committee, the second respondent ordered for fresh election to the sixth respondent society from the stage of filing nominations. Subsequently, on 08.02.2019, the election schedule was notified by the fourth respondent as per which the date of election was notified as 18.02.2019. Further, as per the order dated 08.02.2019, the fourth respondent appointed the seventh respondent as Returning Officer for the sixth respondent society. In response to the notification, 11 candidates belonging to the State Express Transport Employees Union (CITU) filed their nominations on 11.02.2019. According to the petitioner, totally 45 persons, including 12 nominations filed by him and the erstwhile directors of the sixth respondent society were submitted for scrutiny and all such nominations have been filed before the last date notified for submission of nomination viz., 12.02.2019. However, the nominations filed by the petitioner and others were not scrutinised by the seventh respondent until 2 p.m on 12.02.2019. Therefore, the petitioner sent an e-mail to the second respondent requesting him to take action. The nominations were supposed to be scrutinised between 10 am and 4 pm on 12.02.2019 but the office of the Returning Officer in the sixth respondent society was kept locked. However, at about 4.30 pm, the eighth respondent suddenly came to the society premises along with the police force and declared himself to be the new election/Returning Officer for the sixth respondent society. When the petitioner demanded to show the appointing order, he did not produce the same. The eighth respondent also put up a list in the notice board of the society at 6 pm by including the names of only 14 candidates who belong to the ATP Union and the names of the candidates belonged to the Petitioner Union were omitted. Though the eighth respondent came to the premises of the sixth respondent society at about 4.30 pm on 12.02.2019 after the time fixed for scrutiny of nomination, he did not call the petitioner and other candidates inside the office of the sixth respondent for scrutiny also did not allow the petitioner to enter into the office. In the above circumstances, a complaint was given by the trade union to the second respondent on 13.02.2019 and requested to stop the scheduled proceedings for withdrawal of nomination on 13.02.2019 purportedly on the ground that the members of ATP Union are attempting to get the 11 candidates belonging to their union get elected unopposed. Further, the petitioner also sought for information as to whether the appointment of the seventh respondent as Returning Officer was revoked and in his place the eighth respondent was appointed as Returning Officer, but he was not furnished with any information. In the above circumstances, the petitioner has filed the present writ petition for the relief as stated supra.