Karnataka Medical Council 2020 Elections quashed
Bengaluru: Observing that elections got vitiated owing to the 'illegal' conduct of the Returning Officer, the Kalaburagi bench of Karnataka High Court has recently quashed the Karnataka Medical Council (KMC) election held in January 2020 and directed the State and Council to work together and conduct re-election to the council within six months from the date of order.
Apart from this, the High Court bench has also directed to initiate disciplinary proceedings against the Returning Officer and has asked the State to entrust the proceedings to the Lokayukta, who would submit a report regarding the same to the State. Afterwards, the State would consider the report and pass appropriate orders regarding the matter.
Noting that the list of voters prepared by the Returning officer included many of whom are dead and observing that the officer didn't notify about the list on the KMC website as per the rules, the Court stated, "Therefore, the defense in several paragraphs of the affidavit is circumstance enough to hold that the action of the Returning Officer was illegal, highhanded, and would resultantly get vitiated by fraud."
The Court was considering a petition filed, under Articles 226 and 227 of the Constitution of India, by one member of the Council who challenged the action of the Returning Officer, in not acting upon list of members for the purpose of election to the Members of Council as furnished by the Council and sought a direction for preparation of electoral list and conduct of elections in accordance with the law.
It was further observed by the Court that previously as well, several members of the Council had approached the High Court as the elections were not being held. The rules were amended at that time and mentioned appointing a Returning Officer who was to be an officer of the Co-operation Department, not below the rank of a Joint Registrar of Co-operative Societies.
Although the Court by an order dated 17.01.2020 had directed conducting the elections only in terms of the list given by the Council, later the order was modified on 20.01.2020 and the Returning Officer was given liberty to proceed with the elections in terms of Karnataka Medical Registration Rules, 1963. Elections were held on January 25, 2020, and counting of votes was conducted on 25.01.2020.
During the proceedings of the petition, the counsel for the petitioner argued that the list of voters as prepared by the Officer neither belonged to the list given by the Indian Medical Association, Karnataka branch, nor the Karnataka Medical Council. He further argued that the Returning Officer named 37298 as voters in the election of his own volition.
It was further submitted by the counsel for the petitioner that the statute required a particular mode of publication of names which was completely violated by the returning officer as the names of the voters that he had added was notified on his own website. He further contended that despite specific directions issued by the High Court, neither the State nor the Returning Officer had produced documents or filed affidavits in compliance with the order passed by the Court.
On the other hand, the counsel for the State vehemently refuted each of these contentions further submitting that the petitioner, who even after being aware of the election process participated in the election process, had no locus to file the petition. He further submitted that the petitioner only filed the petition after losing the election and contended that the petitioner could not approbate and reprobate in accepting the process of election and later challenge the same.
The Court noted that after issuance of the calendar of events regarding the poll, the court directed on 10.01.2020 that the names of the IMA members should not be deleted and the Returning Officer was directed to consider the objections filed to the said list and pass appropriate orders.
However, the Returning Officer earlier claimed to have considered the objections on a case to case basis and added 37298 names in the voters list of the Council. In this context, the Court observed
"The way the voters were added to the list by the Returning Officer if juxta posed with the list of voters maintained by the Council would in unmistakable terms indicate that the procedure stipulated under the mandate of the Act and the Rules are given a go bye by the Returning Officer. The Returning Officer prepares the list according to his whim and fancy."
The Court also noted that the list of 37298 voters prepared by the Returning Officer also contained doctors who have died and who have left the country after surrendering their registration.
"Therefore, the list that contains registration numbers being voters who have died and have left the country cannot but be said to be a fraud on the part of the Returning Officer," noted the Court.
Further noting the casual defence on the part of the Returning Officer mentioned that the "list may contain one or two dead persons and a few who have left the country and surrendered the registration", the Court observed, "This is enough circumstance to hold the conduct of the Returning Officer was in perpetration of fraud."
Another aspect that pointed towards the fraud on the part of the Returning Officer was that the Karnataka Medical Registration Act, 1961 required publication of voters list on the website of the Council. The Officer had prepared a separate list and the rules would require that list to be published on KMC website. However, the Returning Officer published his own voters list on his website created for the purpose of election. In this context, the Court noted that the Returning Officer has, "without a shadow of doubt usurped the powers conferred on the Council for preparation of list of voters in Rule 4 of registered medical practitioners and in terms of Section 26 as available in the register maintained by the Council under Section 12 of the Act."
After perusing the affidavit and order filed by the Returning Officer, the Court noted that contrary to the Officer's claim that he had considered each and every objection individually, "A reading of the order does not indicate that the Returning Officer has even considered one objection let alone thousands of objections."
The High Court bench further noted,
"It is not in dispute that the list so prepared contains many of whom are dead is produced along with the objections to the application seeking vacation of interim order to which as a counter no objections are filed but is orally contended that the Returning Officer was well within his powers to notify the list on his website... This is again contrary to the Act and the Rules."
"Therefore, the defense in several paragraphs of the affidavit is circumstance enough to hold that action of the Returning Officer was illegal, highhanded and would resultantly get vitiated by fraud, as one acting contrary to the statute adding number of voters which is neither claimed by IMA not indicated in the affidavit as IMA members claimed 67000 voters names are to be included and the Returning Officer in his affidavit deposes that 24000 and add voters had to be included but what is actually included is a figure that springs from nowhere – 37298 voters, which undisputedly contains names of dead members as voters. Therefore, it should be held that the conduct of the Returning Officer is in perpetration of fraud in the conduct of elections," Stated the order.
Further, the Court mentioned that the Returning Officer and the State completely ignored that the Court after considering the affidavit filed by them and after considering the objections filed had directed on 17.02.2021 to produce documents before the Court. However, no documents were furnished.
Therefore, the Court ruled,
"All the circumstances narrated hereinabove would lead to a solitary conclusion that the process of election is vitiated by fraud on the part of the Returning Officer and the resultant elections conducted on 23.01.2020 would be rendered unsuitable."
While considering the objection that the petitioner had no locus of filing the petition after the election process was complete, the Court observed that the writ petition on this subject was filed long before the elections could commence.
Finally, arriving at the conclusion, the Court mentioned,
"It is, without a shadow of doubt, in terms of the preceding analysis, that the entire election is vitiated on account of fraud played by the Returning Officer. The Returning Officer, who has a duty to act according to the Rules, has not used, but abused his office. Such public servants, if left off the hook, without any penalty being imposed for deliberately acting blatantly contrary to the statute treating the entire election process as his personal fiefdom, would become an abdication of a duty of this Court."
Further, noting that the State and the Returning Officer made submissions in unison and have defended themselves mutually, the Court noted,
"Any direction to the State to hold disciplinary proceedings against the Returning Officer would be an exercise in futility. In my considered view, the State should be directed to entrust the conduct of disciplinary proceedings against the Returning Officer to the Lokayukta, who shall conduct an inquiry and submit its report to the State for appropriate action."
"It is beyond cavil, the action of the Returning Officer, is conceived in fraud and delivered in deceit. The defence that the Returning Officer seeks to put forth contending that he is innocent officer following the law is only a masquerade to cover up his fraudulent activity. This court in its exercise of its jurisdiction under Article 226 cannot turn a blind eye to such fraudulent acts," noted the court.
"It is, by now, too well settled a principle of law that fraud unravels everything and obliterates every solemn act," the court observed.
Ultimately, allowing the writ petition, the High Court bench passed the following orders-
(a) Final voters list published on 10.01.2020 by the Returning Officer is quashed and as a consequence of which, elections conducted on 23.01.2020 and results declared on 25.01.2020 also stand quashed.
(b) Respondent/State and the Council are directed to work in tandem and conduct re-election to the Council.
(c) The re-election should be completed within an outer limit of six months from the date of order.
(d) The State is directed to entrust the disciplinary proceedings against the Returning Officer to the Lokayukta who shall conduct proceedings as per the law and submit the report to the State. The State after considering the same would pass appropriate orders.
(e) The proceedings against the Returning Officer shall be concluded within 9 months from the date of order.
To view the original order, click on the link below.