ORDER
Ramesh Kumar Datta, J.
1. The petitioner seeks the intervention of this Court by issuing a writ/order/direction in the nature of certiorari for quashing the order dated 26.3.2008 passed by the Chairman, Rajya Sabha in exercise of powers conferred by para-6 of the Tenth Schedule to the Constitution by which he has disqualified the petitioner in terms of para-2(1)(a) of the Tenth Schedule to the Constitution of India and for further consequential reliefs and directions.
2. The petitioner was elected to the Rajya Sabha by the Legislative Assembly of the State of Bihar in 2004 as a candidate of the Bhartiya Janata Party (BJP) which is a recognized political party and also the main opposition party in the Rajya Sabha. On 22.12.2005, the respondent No. 5, Smt. Sushma Swaraj, the Deputy Leader, BJP Parliamentary Group in the Rajya Sabha filed a petition under Rule 6 of the Members of Rajya Sabha (Disqualification on the Ground of Defection) Rules, 1985 for disqualifying the petitioner under the Tenth Schedule to the Constitution of India. It was stated in the said petition that in the last Assembly election to the Bihar Vidhan Sabha held in October-November, 2005, the petitioner for extraneous and motivated reasons decided to disassociate himself from the BJP and on 18th October, 2005 he sent a letter to the President of BJP, Bihar State resigning from the Membership of BJP and thus had voluntarily relinquished the membership of the party on whose ticket he was elected to the Rajya Sabha. It was asserted that the said letter was sent on the official letter head as a member of Parliament which not only bears his signature but the copy of the same was directed to be forwarded to all the print and electronic media. It was further alleged that thereafter the petitioner openly started campaigning against the BJP and other candidates of the National Democratic Alliance of which the BJP was a part and his tour programmes along with several other leaders of the Rashtriya Janata Dal (RJD) were regularly arranged by the RJD (the principal opposing party contesting against the BJP/NDA in the Vidhan Sabha elections) and the details of the said programmes were duly published in various newspapers in Bihar by and under the authority of RJD, Bihar and the said campaign programmes showed that he had jointly campaigned by helicopter in various constituencies along with senior leaders of the RJD; photo copies of various newspapers clippings of 5.11.2005, 10.11.2005 and 11.11.2005 were annexed with the petition. It was alleged that the petitioner openly, actively and effectively campaigned against many BJP and its NDA ally JD (U) candidates in many other different constituencies. It was also alleged that during a public meeting in the Kudhni assembly constituency on 18.10.2005 the petitioner publicly declared that after resigning from BJP he would also relinquish the membership of Parliament and submit his resignation to the Chairman which remark was published in the newspaper dated 19.10.2005, photo copy of which was enclosed. It was thus alleged that apart from resignation, his conduct also conclusively established that the petitioner had voluntarily given up the membership of BJP which had elected him as member of Rajya Sabha. Upon receipt of the petition, the Chairman directed the copy of the same with its annexures to be forwarded to the petitioner and to the leader of the BJP and leader of the opposition in Rajya Sabha requesting them to forward their comments in writing on the said petition within seven days of the receipt of the same in terms of Sub-rule (3) of Rule 7 of the Disqualification Rules.
3. In his reply to the above petition the petitioner disagreed with the charges made against him and stated that he had tendered his resignation from the primary membership of the party on 18.10.2005 in an agitated mental condition which was withdrawn by the letter dated 17.11.2005. The same was duly accepted by condoning the resignation because no action either under Sub-article (4) of Article 25 of the Constitution and Rules of the BJP party has been taken by issuing notice by the President concerned or by giving information to the Chairman of the Rajya Sabha by the leader of the Legislature Party for unseating him from the seat arrangement or by giving request of information for action for the said acts. On the other hand, it was stated that the party office bearers or the competent authority of the party had written him several letters by issuing whip and directions for voting in a particular manner in the House on a particular issue for which the evidentiary letters were annexed. He also referred to the SMS messages on several occasions on 18.11.2005, 21.11.2005, 5.12.2005, 6.12.2005 and 12.12.2005 by the Chief Whip/competent authority to attend the meeting of the party or to act according to the messages. It was further stated that the monthly subscription fee for the party at the rate of Rs. 1200/- per month was also being taken from him till 10.12.2005. The said acts, according to the petitioner, amounted to condonation of his conduct. It was also contended for the said reasons that by such acts of condonation and the conduct of the party-authorities, no voluntarily giving up membership or resignation from the party has been effected and thus no disqualification has been attracted; hence the petition should be summarily dismissed.
4. After receiving the comments of the petitioner as also the Leader of BJP in the Rajya Sabha, the Chairman, Rajya Sabha referred the petition to the Privileges Committee of the Rajya Sabha for making a preliminary enquiry and submitting a report to him under Sub-rule (4) of Rule 7 of the aforesaid Rules. The Committee at its meeting held on 13.3.2006 decided to give an opportunity to the petitioner to represent his case and be heard personally in terms of Rule 7(7) of the Rules fixing 30.5.2006, 2.8.2006 and 27.10.2006 for his appearance but citing various reasons like Panchayat Elections, elections to Rajya Sabha, stomach disorder and Chhath Puja, the petitioner did not appear on the said three dates. He appeared for the first time on 3.11.2006 and requested that he wanted to place some additional papers for consideration of the Committee and prayed for time which was granted fixing the date on 21.11.2006. However, the petitioner filed a supplementary affidavit raising a few points on 13.11.2006 but did not appear on 21.11.2006 on account of being hospitalized in Coronary Care Unit of Ram Manohar Lohia Hospital, New Delhi. Apart from repeating what he had raised earlier, a few additional points were made in the supplementary affidavit regarding the continued receipt of SMS messages from the party-authorities even after the filing of his response to the petition till 13th March, 2006; receipt of a letter from the party regarding meeting of different cells of the parties fixed on 27.5.2006 by convenor and co-conveners, the petitioner being Incharge of Fishery Cell of BJP; non-furnishing of information to the Chairman, Rajya Sabha in Form-1 as required by Rule 3(1)(a) of the Rules regarding the names of members of the concerned Legislature Party, his suspension from the BJP Parliamentary Party by letter dated, 27.3.2006 letter dated 28.9.2006 of the Chief Whip of the BJP (Rajya Sabha) stating that he had ceased to be member of the Parliamentary BJP Party and non-submission of information regarding suspension or cession of membership to the Chairman, Rajya Sabha as a result of which no action was warranted under the Disqualification Rules. Thereafter the petitioner appeared before the Committee on 17.1.2007 and reiterated the submissions that he had made in his reply to the petition and the supplementary affidavit. The petitioner denied that he had gone anywhere for campaigning in favour of the candidates of RJD including for his son who was contesting as a candidate of RJD in the Assembly elections or having addressed public meeting in the forum of RJD. Regarding the advertisement/newspaper reports he stated that he had told about this to the leader of RJD and that he had written to concerned newspapers that his name and statements appearing therein were wrongly quoted but he could not produce any letter before the Committee stating that he would have to search for the same but admitting that none of his statements in contradiction was published in the newspapers.
5. In its report dated 20.11.2007 submitted to the Chairman, Rajya Sabha, the Committee came to the conclusion that the petitioner had incurred disqualification for being a member of the Rajya Sabha in pursuance of paragraph 2(1)(a) of the Tenth Schedule to the Constitution. The Committee was of the view that the SMS messages and letters sent to the petitioner by the BJP office bearers as also the deduction of subscription fee from his Bank Account were routine exercises and had been done in a mechanical manner by the party office bearers. The non-furnishing of information under Rule 3(1)(a) was also held to be a mere procedural infirmity having no bearing on the question and any issue. Similar was the position with respect to non-submission of information regarding his suspension. The Committee held that the question of acceptance of his resignation or his subsequent withdrawal of resignation does not bear any significance since from his conduct and also from his resignation dated 18.10.2005, he had voluntarily given up the membership of the political party as he had not indicated any coercion in sending his resignation except that it was given under agitated mental condition and in the absence of any categorical rebuttal by him he could not disprove the media reports suggesting that he had willingly allowed his name to be used for campaigning for another political party. The Committee also could not be convinced by the petitioner that his name was used by the RJD candidate for campaigning without his consent.
6. Two of the eleven members of the Privileges Committee, however, gave their separate notes of dissent.
7. After receipt of the report of the Committee, a copy of the same along with its annexures was directed by the Chairman to be sent to the petitioner and he was requested to be present in his Chamber on January, 8, 2008 at 11.30 A.M. to enable him to have an opportunity to represent his case and to be heard in person. The petitioner, however, by his letter dated 7.1.2008 requested for supply of copies of the notes of the two dissenting members of the Committee and sought time to enable him to study them and frame his views. The notes were supplied and the next date was fixed on 11th March, 2008 at 3.30 P.M. for his appearance. The petitioner did not appear on the ground of health. On 14.3.2008 he wrote to the Secretary General, Rajya Sabha enclosing his discharge report dated 13.3.2008 of Dr. Ram Manohar Lohia Hospital, New Delhi stating that he had been advised complete bed rest for a period of fifteen days and also required to report to Endocrinology Department and also report to cardiology OPD after two weeks for further check-ups and requested that next date of hearing in his case be fixed after consultation with him. By letter dated 18th March, 2008 the petitioner was afforded another opportunity to represent his case on 26.3.2008 at 11.00 A.M. The petitioner again sent letter dated 24th March, 2008 stating that his health had deteriorated in the past few weeks and again requested that the next date of hearing may be fixed after consultation with him keeping in view his health problems and did not appear on March 26, 2008. Thereafter, being satisfied that the provisions of Rule 7(7) of the Rules have been complied with, the Chairman, Rajya Sabha proceeded in the matter and passed the impugned order dated 26.3.2008. In the said order the Chairman considered the entire facts from the filing of the petition by respondent No. 5 and statements made therein as also the comments of the petitioner thereon. It is further stated that the report of the Committee was perused and thereafter the relevant part of the report containing the findings and conclusions of the Committee were also noted. On a consideration of the same he came to the conclusion that the petitioner had voluntarily relinquished the membership of the BJP by which he was set up as a candidate for election to the Rajya Sabha in the State of Bihar in 2004 and elected as Member and therefore, held that the petitioner had incurred disqualification from being a member of the House in terms of paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India and thus he had ceased to be a member of Rajya Sabha with immediate effect.
8. Mr. Y.V. Giri, learned Senior counsel appearing for the petitioner submits that the impugned order is not a judgment on full consideration of the issues involved and the evidence available on the record. It is argued that the Chairman, Rajya Sabha was required to apply his independent mind like a judicial authority and then pass an order by assigning his own reasons which he has not done. It is also contended that he has not considered the minority reports available on the record which consideration was a must. For the said reasons, according to him, the impugned order is not a judgment or order as expected to be passed by a Tribunal in exercise of functions which have been held to be of a judicial nature and therefore, it is perverse and violative of the principles of natural justice and fair play. It is urged by learned Counsel that the Chairman has surrendered his judgment to the view of the Privilege Committee and he has not considered the defence of the petitioner although a detailed defence was filed and thus the order suffers from complete non-application of mind. Neither the resignation letter nor the letter of withdrawal of resignation was considered.
9. It is the contention of learned Counsel that the resignation letter dated 18.10.2005 has to be seen in its proper context under which it is not so much a voluntary giving up of the membership of the Party but an attempt to provide a larger focus so as to improve the functioning of the party and also in the context that the same was withdrawn on 17.11.2005 much before filing of the complaint by respondent No. 5 on 22.12.2005. He also refers to various letters and documents showing the action of the party functionaries that they continued to treat him as a member of the Party by sending letters and notices to him and deducting his subscription. All these, according to learned Counsel for the petitioner, amounts to a condonation of the action of the petitioner by the Party functionaries which is further reinforced by the fact that at no point of time the resignation of the petitioner had been accepted by the authorities of the Party. It is urged that the action of the BJP leaders in not informing the Chairman, Rajya Sabha in terms of Rule 3, etc. of the Rules amounts to acceptance of the withdrawal of resignation by the petitioner and condoning his activities if any and they forfeit their right to proceed for his disqualification. It is argued that if the leaders of the BJP have themselves violated the Disqualification Rules they cannot be allowed to use that forum against the petitioner and at least this aspect should have been considered by the Chairman in his order. The non-consideration of the same makes the order perverse and liable to be set aside. Learned Counsel also submits that it was wrongly held by the Committee of Privileges that the onus of disproving the allegations lies on the petitioner when nothing has been proved by the other side.
10. It is submitted by learned Counsel that the Tribunal has failed to consider the relevant laws cited and the issues involved in terms of the said decisions. Placing reliance on the case of Ravi S. Nayak v. Union of India and Ors. : [1994]1SCR754 , it is submitted that the whole conduct of the petitioner post facto his resignation was relevant for the purpose of coming to the conclusion whether he had voluntarily given up his membership of a political party but the same was not considered. The relevant part of para-11 of the said judgment is quoted below:.The words 'voluntarily given up his membership' are not synonymous with 'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.
11. On the question of conduct, it is also the submission of learned Counsel that the petitioner not having taken up membership of any other political party coupled with withdrawal of resignation, goes a long way to show that he neither gave up nor had any intention to give up the membership of his political party. In support of the same learned Counsel relies upon a decision of the Supreme Court in the case of G. Vishwanathan v. Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras and Anr. : [1996]1SCR895 , the relevant part of paras 11 and 14 of which are quoted below:
11 ...The further question is when does a person 'voluntarily give up' his membership of Such political party, as provided in para 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member.
14 ...If he of his own volition joins another political party, as the appellants did in the present case, he must be taken to have acquired the membership of another political party by abandoning the political party to which he belonged or must be deemed to have belonged under the explanation to para 2(1) of the Tenth Schedule. Of course, courts would insist on evidence which is positive, reliable and unequivocal.
12. On the question of violation of natural justice learned Counsel relies upon the decision of the Supreme Court in the case of S.L. Kapoor v. Jagmohan and Ors. : [1981]1SCR746 of which, after quoting from Jackson's Natural Justice (1980 Edn.), it was held as follows:
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.
13. Learned Counsel relies on the case of Jagjit Singh v. State of Haryana and Ors. : AIR2007SC590 wherein it has been held that undoubtedly the proceedings before the Speaker who is also a Tribunal have to be conducted in a fair manner and by complying with the principles of natural justice. He also seeks support on this issue on the judgment in the case of K.L. Tripathi v. State Bank of India and Ors. : (1984)ILLJ2SC .
14. With respect to the order being bad for non-assigning of reasons, learned Counsel relies upon a Supreme Court decision in the case of The Simens Engineering & . v. The Union of India and Anr. : AIR1976SC1785 in the relevant part of para-6 of which judgment it has been held as follows:
Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned Counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai v. Testeels Ltd.
15. It is further argued by learned Counsel that the reasons not having been assigned in the impugned order it is not open to the respondents to defend the same on the basis of their own reasonings in the course of hearing of the writ petition and the order must stand or fall only on the basis of reasons assigned therein. In support of the same he relies upon the decision of the Constitution Bench in the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. : [1978]2SCR272 of which is quoted below:
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji : [1952]1SCR135 :
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older:
16. It is submitted by learned Counsel that the need for compliance of Rule 3 of the Disqualification Rules is not a bare formality because unless the particulars required in the rule are furnished how would the Chairman know regarding a member having voluntarily given up the membership of his political party and having thus rendered himself liable for any action in case a petition is filed in that regard. It is the contention of learned Counsel that the Chairman has to determine a lis when the complaint is made before him and he can only do so by considering all aspects of the matter and the entire evidence available on the record and his position is not the same as that of a disciplinary authority since he is a tribunal and adjudicator who has to pass judicial order on an independent application of mind and not merely by surrendering his judgment to the opinion of the majority view of the Parliamentary Enquiry Committee as has been done in the present matter without considering the views of the two dissenting members.
17. Mr. J.S. Doabia, learned senior counsel appearing for the Union of India, on the other hand, contends that the date of resignation is alone relevant in considering the question of voluntarily giving up of the membership of one's political party and not any future date. It is submitted that any action of either the petitioner or his political party subsequent to the same would be of no effect and wholly irrelevant. Learned Counsel submits that the salutary provisions of the Tenth Schedule to the Constitution are meant to inculcate discipline in the Legislators and any decision on the issue of disqualification on the ground of defection must constantly keep the same in view. It is argued that a letter of resignation submitted voluntarily is the only relevant fact to be taken into consideration in the present matter and the only relevant issue and in the said context there is no statement by the petitioner that he had not resigned voluntarily or that he had done so under threat or coercion, rather he only speaks of confusion and agitation of mind.
18. Referring to the various paragraphs of the impugned order, learned Counsel points out that the said order takes into consideration the fact that the complaint against the petitioner was that he had resigned from his Party and had actively campaigned for a rival political party in the elections to the Legislative Assembly and further note has been taken of the case of the petitioner in para-4 of the order and thereafter in para-8 the Chairman, Rajya Sabha has considered and quoted the findings of the Privileges Committee. Ultimately in the said order, after taking into account the facts of the case and the report of the Privileges Committee, he has come to the conclusion that the petitioner had voluntarily given up the membership of his political party. It is contended that in view of the simple issue of fact involved, which fact was not controverted by the petitioner himself, it could not be said that the order suffers from any non-application of mind. Consideration in the order of the cases of the parties and thereafter consideration of the findings in the report of the Committee takes the order out of the purview of a case of non-application of mind or surrendering to the views or opinion of the Committee.
19. In support of the aforesaid propositions, learned Counsel relies upon a Constitution Bench judgment of the Supreme Court in the case of Rajendra Singh Rana and Ors. v. Swami Prasad Maurya and Ors. : AIR2007SC1305 of which lays down as follows:
As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. Therefore, the act that constitutes disqualification in terms of para 2 of the Tenth Schedule is the act of giving up or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up, by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the legislator. Similarly, the fact that the party could condone the defiance of a whip within 15 days or that the Speaker takes the decision only thereafter in those cases, cannot also pitch the time of disqualification as anything other than the point at which the whip is defied. Therefore in the background of the object sought to be achieved by the Fifty-second Amendment of the Constitution and on a true understanding of para 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. It is really a decision ex post facto. The fact that in terms of para 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision-making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible. We are, therefore, of the view that the contention that (sic it is) only on a decision of the Speaker that the disqualification is incurred, cannot be accepted. This would mean that what the learned Chief Justice has called the snowballing effect will also have to be ignored and the question will have to be decided with reference to the date on which the membership of the legislature party is alleged to have been voluntarily given up.
20. It is the further contention of learned Counsel that on the facts of the case, considering the repeated opportunities provided to the petitioner by the Committee of Privileges in the course of enquiry and the conduct of the petitioner in not being present on most of the dates fixed by the Committee as also the fact of three opportunities having been provided by the Chairman, Rajya Sabha to represent his case by personally appearing in the matter and the petitioner having avoided to attend on any of those dates, firstly seeking the reports of the two dissenting members of the Privileges Committee and thereafter on the ground of illness, shows that there has been no failure in complying with the principles of natural justice. However, it is submitted by learned Counsel that even if it is found by this Court that the principles of natural justice have been violated then considering the single issue involved, namely, submission of letter of resignation voluntarily without any threat or coercion by the petitioner, this Court can decide the matter as was done by the Apex Court in Rajendra Singh Rana's case (supra) where the Court went to the extent of taking a decision to disqualify the petitioners for the first time even without the Speaker of the UP Assembly having considered the matter, on the ground that the term of the Assembly was coming to an end and an immediate decision by the Court was warranted for protection of the constitutional scheme and constitutional values so that those who are guilty of defection do not continue to hold public office without authority of law.
21. Learned Counsel also cites in this regard the decision of the Constitution Bench of the Supreme Court in the case of Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. : (1994)ILLJ162SC of which it was held that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights; they are not incantations to be invoked nor rites to be performed on all and sundry occasions irrespective of the fact whether prejudice has been caused or not. In the context of non-supply of report of the Enquiry Officer by the Disciplinary Authority in departmental proceedings, it was held that the Court itself should give an opportunity to the concerned employee to show how his case was prejudiced because of such non-supply and only upon a finding that it would have made a difference to the result in the case, the matter should be remanded to the disciplinary authority to continue the enquiry from the stage of furnishing the enquiry report.
22. Mr. Jitendra Singh, learned Senior counsel for respondent No. 5 on whose petition the proceedings for disqualification were initiated, contends that the proceedings for disqualification are sui generis and not adversarial litigation. There is no lis between the petitioner and the person complained against; once a complaint petition is entertained, even the Chairman has no jurisdiction to permit withdrawal of the same but must decide it. In support of the same, learned Counsel relies upon a decision of the Supreme Court in the case of Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Ors. : AIR2005SC69 of which it has been held as follows:.There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in the CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of a House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under Sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires.
23. Next, it is argued by learned Counsel that the scope of judicial review in the proceedings of a present nature is very limited in view of the finality clause and the deeming fiction contained in para-6 of the Tenth Schedule. It is urged that infirmity and irregularity in procedure is not a ground for assailing the same and for the said reasons the reliance by learned Counsel for the petitioner on non-compliance with certain provisions of the Disqualification Rules can be of no avail. It is submitted that the limited grounds for interference in judicial review are confined to jurisdictional error only i.e., infirmity based on violation of constitutional mandate, mala fide, noncompliance of rules of natural justice and perversity. In this regard he relies upon a decision of the Constitution Bench in the case of Kihoto Hollohan v. Zachillhu and Ors. : [1992]1SCR686 , in para Nos. 96 and 109 of which it was held as follows:
96. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be. The words 'proceedings in Parliament' or 'proceedings in the legislature of a State' in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures.'
109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Paragraph 6, the scope of judicial review under Articles 136 and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fide, non-compliance with rules of natural justice and perversity.
24. He further relies upon the decision of the Supreme Court in Ravi S. Naik's case (supra), in para-18 of which it was held as follows:.We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan case.
25. The further contention of learned Counsel is that the disqualification conies into force or becomes effective on the happening of the event, namely, voluntary giving up of the membership of the party and is not to be construed on the basis of any future event. In this connection, he relies upon aforesaid decision of M.P. Singh's case (supra), wherein the said proposition was laid down in para-7 as also in the case of Rajendra Singh Rana (supra) as quoted above.
26. It is further argued that for reasons stated in the letter of resignation dated 18.10.2005 the petitioner tendered his resignation and also sent copy of the same to the print and electronic media for wide publicity. It is further pointed out that the said resignation was reported in the media, as annexed in the petition filed by respondent No. 5 before the Chairman as also his active participation in the campaign. In this regard learned Counsel refers to para-8 of the report of the Privileges Committee which had given opportunity to the petitioner to produce any evidence of denial of his participation in the campaign or having written to the newspapers concerned but none could be produced by him. It is further submitted that while much has been sought to be made by the petitioner of certain routine communications made to the members by the party authorities in a mechanical manner but there is no whisper in the writ petition that after 18.10.2005 the petitioner went to attend any meeting of the party and was permitted to do so. It is also pointed out by learned Counsel that the specific facts mentioned in paras 5 to 12 of the complaint petition by respondent No. 5 have not been denied rather in para-6 of his reply before the Chairman, the petitioner has made a vague and non-specific denial only and reiterated condonation of his action by the Party.
27. In view of the aforesaid facts which stare in the face, it is urged by learned Counsel for respondent No. 5 that no conclusion can be drawn that the order in question is perverse. It is further submitted by learned Counsel that more than required opportunity was given to the petitioner at the stage of enquiry by the Privileges Committee as also before the Chairman after the report of the Committee was received by him. The petitioner chose not to appear before the Privileges Committee on majority of dates and did not appear at all before the Chairman nor sent his authorized representative. It is contended that the petitioner had submitted a detailed reply to the petition and further a supplementary affidavit before the Privileges Committee covering each and every point that he had to raise in the matter. Even in the writ petition nothing more than what was submitted in those two affidavits have been raised and the petitioner does not say as to what further he would have said in the matter had he been afforded a personal hearing at his own sweet will and time. In this regard learned Counsel points out that the petitioner had conveniently got himself admitted in the hospital on the very date on which he was required to be present before the Chairman, i.e., 11.3.2008 on a complaint of giddiness and sweating two days back which as per the discharge report was probably on account of hypoglycemia induced and he was also discharged on 13th March 2008 and there is nothing in the discharge report to show that his condition was so serious on 11.3.2008 that he could not have presented himself before the Chairman. It is thus, submitted by learned Counsel that disqualification as per para 2(1)(a) of the 10th Schedule is sufficiently proved by the letter of resignation dated 18.10.2005 of the petitioner which was admittedly not under any coercion and which was sent also to the media, and the same is also reflected by the subsequent conduct which is more than adequate material leading to the irresistible inference of voluntarily giving up the membership of the party as required by the said paragraph and thus the conclusion drawn in the impugned order would be the only irresistible one.
28. On the question of opportunity granted being sufficient, learned Counsel refers to the facts of M.P. Singh's case (supra) as stated in para-19 of the judgment wherein on two consecutive dates, namely, 22.6.2004 and 25.6.2005 the petitioner of that case failed to appear before the Chairman of the Bihar Legislative Council, on the second date on the ground that he had fallen sick and prayed for ten days further time, and it was held by the Apex Court on the said facts that it would show that the Chairman of the Bihar Legislative Council had afforded ample opportunity to the petitioner but he himself did not avail of it. In this regard learned Counsel also relies upon the observations made by the Apex Court in the case of Ravi S. Naik (supra) in paras 20, 21 and 22 which are quoted below:
20. Principles of natural justice have an important place in modern Administrative Law. They have been defined to mean 'fair play in action' (See: Maneka Gandhi v. Union of India : [1978]2SCR621 , Bhagwati, J.) As laid down by this Court: 'They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men' (Union of India v. Tulsiram Patel : (1985)IILLJ206SC . An order of an authority exercising judicial or quasi-judicial functions passed in violation of the principles of natural justice is procedurally ultra vires and, therefore, suffers from a jurisdictional error. That is the reason why in spite of the finality imparted to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decision is subject to judicial review on the ground of noncompliance with rules of natural justice. But while applying the principals of natural justice, it must be borne in mind that 'they are not immutable but flexible' and they are not cast in a rigid mould and they cannot be put in a legal strait-jacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case.
21. The approach of the English courts has been thus summed up by Prof. Wade:
The judges, anxious as always to preserve some freedom of manoeuvre, emphasize that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter. 'The so-called rules of natural justice are not engraved on tablets of stone'. Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. 'In the application of the concept of fair play there must be real flexibility'. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. (H.W.R. Wade; Administrative Law, 6th Edn. P. 530) Similarly Clive Lewis has stated:
The fact that the applicant has suffered no prejudice as a result of the error complained of may be a reason for refusing him relief. It is necessary to keep in mind the purpose of the public law principle that has technically been violated, and ask whether that underlying purpose has in any event been achieved in the circumstances of the case. If so, the courts may decide that the breach has caused no injustice or prejudice and there is no need to grant relief. The courts may, for example, refuse relief if there has been a breach of natural justice but where the breach has in fact not prevented the individual from having a fair hearing.
(Clive Lewis: Judicial Remedies in Public Law (1992) p.2901
In the words of Lord Wilberforce:
A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain. (Malloch v. Aberdeen Corpn. (1971) 2 All ER 1278 at p. 1294) 22. The approach of the courts in India is no different. In A.M. Allison v. B.L. Sen : (1957)ILLJ472SC , it has been laid down that while exercising the jurisdiction under Article 226 of the Constitution the High Court has the power to refuse the writs if it was satisfied that there has been no failure of justice.
29. Learned Counsel further argues that the submission that the petitioner did not join any political party is wholly irrelevant as the same is not a necessary ingredient of para 2(1)(a) of the Tenth Schedule and all that is required is voluntary giving up of the membership of one's party.
30. Learned Counsel has also referred to the decision in the case of Union of India and Anr. v. G. Ganayutham : (2000)IILLJ648SC on the question of perversity of an order relying upon paragraphs 12, 13 and 14 thereof and as to what is unreasonable or irrational. Para 12 of the said decision is quoted below:
This case is treated as laying down various basic principles relating to judicial review of administrative or statutory discretion. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the Judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. 1947 2 All ER 680 (KB at p. 229 : All ER p. 682). It reads as follows:.It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another. Lord Greene also observed (KB p. 230: All ER p. 683).It must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable.... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. Therefore, to arrive at a decision on 'reasonableness' the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four coiners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
31. It is also contended that in view of the admission of the basic fact regarding the voluntary resignation by the petitioner, it cannot be held that the conclusion of having voluntarily given up his membership of the party arrived at in the impugned order is unreasonable or one which no reasonable man could make. In support of the same learned Counsel relies upon the observations made in para 43 of the judgment of the Supreme Court in K.L. Tripathi v. State Rank of India and Ors. : (1984)ILLJ2SC which is quoted below:
It may be mentioned that the facts in that case were different. In the instant case though reasons have not been expressly stated, these reasons were implicit namely, the nature of the charges, the explanation offered and the reply of the appellant to the show cause notice. These appear from a fair reading of the order impugned in this case. It, further, appears that there was consideration of those facts and the decision was arrived at after consideration of those reasons. It is manifest, therefore, that absence of any denial by the appellant, indeed admissions of the factual basis and nature of the explanation offered by the appellant were considered by the authority to merit the imposition of the penalty of dismissal. Such a conclusion could not, in the facts and circumstances of the case, be considered to be unreasonable or one which no reasonable man could make.
32. He also relies upon a similar view expressed in the case of Tata Cellular v. The Union of India (1994) 6 SCC 651.
33. It is also submitted by learned Counsel that the giving of separate reasons are not necessary where the authority passing the order has before it the detailed enquiry report, with the reasons and conclusions of which it concurs. It is submitted that the Chairman has quoted at length the finding arrived at by the Privileges Committee in its report and thereafter only on consideration of facts recorded by him also in his order and agreeing with the conclusions in the report he has passed the said order. In support of the same learned Counsel relies upon the decision of the Apex Court in the case of Tara Chand Khatri v. Municipal Corporation of Delhi and Ors. : (1977)ILLJ331SC of which is quoted below:
The second limb of the third contention raised on behalf of the appellant which also overlooks the decisions of the Constitution Bench of this Court does not commend itself to us. In this connection, we would like to make it clear that while it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition a little too broadly to say that even an order of concurrence must be supported by reasons. It cannot also, in our opinion, be laid down as a general rule that an order is a non-speaking order simply because it is brief and not elaborate. Every case, we think has to be judged in the light of its own facts and circumstances. Reference in this connection may be made with advantage to a catena of decisions. In Bimal Kumar Pandit's case it was categorically laid down by the Constitution Bench of this Court that it was not a requirement of Article 311(2) that in every case, the punishing authority should in its order requiring the civil servant to show cause give not only the punishment proposed to be inflicted on him but also the reasons for coming to that conclusion. In that case, it was clarified that the view is not justified that the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delinquent government servant.
34. It is urged by learned Counsel for respondent No. 5 that a writ of certiorari cannot be granted unless there is an error of law apparent on the face of the record and if the error is not self-evident and has to be established by lengthy and complicated arguments, then the same is not fit for interference by a writ of certiorari. In support of the said proposition, learned Counsel relies upon two decisions of the Supreme Court in the case of Satyanarayan Laxminarayan Hegde and Ors. v. Mallikarjun Bhavanappa Tirumale : [1960]1SCR890 and Biswabahan Das v. Gopen Chandra Hazarika and Ors. : 1967CriLJ828 .
35. I have considered the lengthy submissions of learned Counsels for the petitioner and the respondents and the large number of decisions cited by them in support of their stand. However, on a consideration of the provisions of Article 102(2) read with the Tenth Schedule to the Constitution and the facts involved in the present case, I am of the view that the issues involved are quite straight forward and simple and fully covered by the decisions of the Apex Court on the point. Article 102(2) and para 2(1)(a) of the Tenth Schedule to the Constitution are in the following terms:
102(2). A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.'
'2. Disqualification on the ground of defection.- (1) subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House-(a) if he has voluntarily given up his membership of such political party;
36. It is thus evident that Clause (2) of Article 102 inserted by the Constitution (52nd Amendment, 1985) has introduced an additional ground of disqualification on account of defection. For the said purpose it has provided a separate machinery as compared to the decision on the other grounds of disqualification. In the case of a member of the Rajya Sabha the issue of disqualification can only be decided by the Chairman under paragraph 6(1) on a reference being made to him for his decision. Clauses (a) and (b) of paragraph 2(1) of the Tenth Schedule to the Constitution provide for the two different sets of circumstances in which a member of the House may become liable for being disqualified. The first ground, with which we are concerned in the present matter, is, as laid down in Clause (a), if he voluntarily gives up his membership of the political party to which he belongs. The second ground, as provided in Clause (b), for which a member of the House may incur disqualification is if he votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, etc.; in the second case it is open to the political party in question to condone such voting or abstention by the member concerned but only within 15 days from the date, of such voting or abstention and not thereafter. In a case of voluntary giving up of the membership of the political party, there is no provision for any condonation of such action by the political party concerned. It is thus evident that a disqualification on the ground of voluntary giving up of membership is entirely to be decided on the basis of the action or conduct of the member himself.
37. In the present case it is an undisputed fact that the petitioner did tender his resignation from the BJP on whose ticket he had been elected to the Rajya Sabha. The petitioner claims that he has subsequently withdrawn his resignation a month later on 17.11.2005 and the said claim is not disputed. His further contention is that by not formally accepting his resignation at any time and certainly before the date of filing of the petition for disqualification on 22.12.2005 and by other acts as enumerated above, his party had condoned his action and thus he could not be treated to be disqualified. The claim of the respondents, on the other hand, is that his act of resignation voluntarily and without any threat or coercion is sufficient for him to incur disqualification on 18.10.2006 itself, irrespective of what he did or what his political party did thereafter. The subsequent conduct of the petitioner of making the announcement in a public meeting duly reported in the newspaper as also his programmes of campaigning with other senior leaders of the opposing party, RJD, in the Vidhan Sabha elections, which programme was also reported in the newspapers showing his name apparently on the top in the advertisements, which though denied but no evidence was shown of any denial of the same in any newspaper, goes to show that by his conduct also he had during the period of campaigning for elections to the Bihar Legislative Assembly not only disassociated himself from his party, BJP, but was also actively working for the rival party, RJD. Thus on both counts it is a clear cut case of voluntarily giving up membership of his political party by the petitioner making himself liable for disqualification on the ground of defection.
38. It was clearly held by the Apex Court in the Constitution Bench decision in Rajendra Singh Rana's case (supra) that the act of disqualification occurs on a member voluntarily giving up his membership of his political party and the fact that the decision in that regard is taken at a later date does not change the fact that the decision on the question has to be taken not with reference to the date of decision by the Speaker but with reference to the date on which the membership of the party by the legislator is alleged to have been voluntarily given up. Thus, the only relevant point or date so far as the present mailer is concerned, is 18.10.2005 when the petitioner submitted his resignation; his subsequent withdrawal of the resignation or the action or inaction of his party, BJP, after that date can be of no consequence so far as the issue of disqualification is concerned. On the question of voluntary giving up of the membership of the party, there is no relevance of any condonation of the said act by the Party concerned. The petitioner admits that he had resigned although subsequently in his reply he sought to give reason that it is not in letter and spirit because the reasons and compulsions given in the letter are obvious and the same was due to his agitated mental conditions at the relevant time. The question of mental condition of the petitioner is a matter directly within his own personal knowledge which can neither be proved nor disproved by any one else but the very fact that he did not choose to withdraw his resignation immediately after having given the same and waited for nearly one month, after or near the end of the campaigning for the elections to the Bihar Legislative Assembly, goes to show not an agitated state of mind but a cool calculation in the matter for reasons best known to him. In any case, the act of resignation is sufficient for the invocation of the disqualification provisions against the petitioner and even if nothing else is proved in the matter, the same would be quite sufficient for his incurring disqualification.
39. In this context, the observations of the Apex Court in Ravi S. Naik's case (supra) that the words 'voluntarily given up his membership' are not synonymous with 'resignation' and have a wider connotation and that a person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party and further even in the absence of a formal resignation from a membership an inference can be drawn from the conduct of a member that he has given up his membership of the political party to which he belongs, do not at all support the case of the petitioner nor lead to the conclusion that the question of voluntarily giving up the membership is to be proved on the basis of the conduct alone. What has been laid down in Ravi S. Naik's case (supra) really amounts to saying that even if there is no formal resignation, an inference of voluntarily giving up membership can be drawn from the conduct of a member. The natural corollary of the said observations is that where there is a case of formal resignation without any threat or coercion then the same is sufficient for incurring disqualification and nothing more is required. It is only where no formal resignation is submitted and yet acts are committed by a member of the House which are inconsistent with his continuing as a member of his political party, then such act or conduct of the member is to be taken into consideration and on the basis of the evidence necessary conclusion drawn. In the case of a resignation without any threat or coercion being admitted there is no requirement at all of any further proof regarding the subsequent conduct of the member in question as in the present matter.
40. However, even the said subsequent conduct of the petitioner on the basis of the materials on the record, as borne out from various newspaper reports, which he was unable to disprove by any cogent evidence either before the Committee or the Chairman by producing even a single proof of having issued a letter in contradiction or denial of the newspaper report, only go to show that even if he had not voluntarily tendered his resignation from the party, he would be liable for disqualification under para 2(1)(a) of the Tenth Schedule on account of such conduct alone.
41. So far as the order being assailed on the ground that it does not consider in detail all the issues involved and evidence available, including the minority view expressed by two members of the Privileges Committee, and the various case laws cited on behalf of the petitioner, the same does not appear to have any force. It is evident from a perusal of the impugned order that the facts of the case starting from the petition for disqualification, the reply of the petitioner to the same and the report of the Privileges Committee were all considered by the Chairman, Rajya Sabha. In his order he has not only referred to the fact that he has perused the report of the Committee but quoted the relevant part of the findings and conclusions arrived at by the Committee and only thereafter, he has drawn his conclusion that the petitioner has incurred the disqualification under para 2(1)(a). Although undoubtedly the Chairman is a Tribunal as held by the Constitution Bench in Kihoto Hollohan's case (supra) yet it has to be borne in mind that he is not a regular court of law and not expected to write his order like a Judge. All that this Court has to see, while exercising the limited powers of judicial review that it has in such matters, is whether he has considered the relevant matters or not before coming to the conclusion that he has. He is not expected to pass a detailed order dealing with all the submissions made by various parties and to quote at length all the decisions that have been cited on their behalf. If it is clear from the order that he was aware of what he had to decide, and has applied his mind to the issue in question and thereafter reached his conclusion that would be sufficient for this Court in its writ jurisdiction not to interfere with his findings and conclusions. Learned Counsel for the petitioner has completely failed in showing as to how the Chairman has misdirected himself in the matter or failed to take into account any relevant material or relied upon irrelevant matters before he reached the conclusions as he has. If the only issue relevant for the decision in the present matter, as held by this Court above, is the question as to whether resignation of the petitioner was without any threat, coercion or compulsion and the said fact is not denied by the petitioner then this Court fails to see how there has been, on the basis of admission of the said fact by the petitioner himself, any non-application of mind by the Chairman in coming to the conclusion of voluntary resignation and therefore voluntarily giving up of the membership of his Party by the petitioner.
42. So far as giving of separate reasons are concerned, in a matter like the present one which has been preceded by a detailed enquiry by the Privileges Committee under the Rules framed in this regard, and a detailed enquiry report has been submitted giving the reasons for coming to the conclusion on the different facts and issues, and the Chairman having agreed with the said view of the Privileges Committee, then the mere fact that he refers to and quotes the relevant assigning of reasons in a matter of the present nature.
43. This Court also does not find any force in the submission of learned Counsel for the petitioner regarding non-compliance of the principles of natural justice and finds substance in the submissions to the contrary made on behalf of the respondents. It is evident from the facts of this case that sufficient opportunity was given to the petitioner both at the stage of enqui