In a path-breaking judgment, Justice V Parthiban, Madras High Court, dismissed the writ petition filed by a disqualified former Congress MLA Mr.P.Veldurai, of TN Assembly. By orders February 26, the judge ruled that the MLA was duty bound to refund the sum of Rs 21.58 lakh received by him as salaries/benefits during the period he was a member of the 13th TN Legislative Assembly in 2006.
The petition was filed by the MLA challenging the orders of the TN Legislative Assembly Secretariat seeking refund on the ground that the very candidature of the MLA having been uprooted, it followed as a matter of course that the benefits enjoyed by him, during the term he was in office, had to be given back. The election of the MLA was set aside by the Supreme Court on April 13,2011 - his nomination was hit by Sec.9-A of Representation of People's Act, 1951, for being a government contractor on the relevant date.
The petitioner sought to rely upon Sec.107 of RP Act read with Art.193 of Constitution to claim that he was protected against any claim of 'liability' or penalty for his acts and services as such MLA and he would be only liable to pay a penalty of Rs 500/- per day for attending the proceedings during his term in office.
Adverting to the role of a member of the House, the judge observed, "The post and position of a Member of the House as a representative of the people returned at hustings is totally different from being selected as an employee in government service. One is an employee and the other is a constitutional position, that of being a member of the House.
It makes all the difference and ought to, in the eye of this Court. The Member of the House stands in the election either as an independent or as a member of a party, campaigns on the basis of a manifesto or in its absence and wins the trust and confidence of the voter to represent the constituency on behalf of 'We the People'. The Member becomes MLA or Member of Parliament with pure and simple service motive. He does not apply for a job, nor is interviewed but is selected to the post in a specific category with a fixed or designated salary structure.
Further, the MLA gets elected upon a promise to serve the people as their representative and the remuneration or emoluments he gets paid cannot be equated to 'salary' of a government servant, even if it is termed as such. It is a compensation paid to the elected representative for spending his time and efforts for the benefit of the people."
In a brilliant exposition on the so called constitutional protection vis a vis Sec.107 of RP Act,1951, that the ex-MLA cannot be mulcted of any 'liability or penalty', for his term in office, the judge laid down the law in these words, "Coming to the specific argument relating to the 'liability and penalty' adverted to in Section 107 of the RP Act, the counsel for the petitioner is missing the wood for the trees. That no 'liability or penalty' shall visit the member of the House, who is disqualified, by reason of his functioning or acts as such member of House until his election was set aside, is to protect the public interest arising from the decisions of the Member of the House. They are not intended to protect the member as in the case of salaries or emoluments paid and received. The member is insulated from liability/penalty because when he serves as member of the House, he is as much a Member of the House as any other and all his acts/decisions as Member of the House may have public consequences li
ke a vote in the House on No Confidence Motion or vote for a Bill or vote it out or such acts as Member of the House, until the disqualification became final by virtue of the orders of the Hon'ble Supreme Court. This protection to insulate the member from liability or penalty as envisaged is to ensure the member of the House is meant to protect the decisions he had taken as Member since he was serving the cause of people as such member. If the decisions were called into question and/or the Member of the House is visited with liability or penal consequences, then the decisions taken by him as such member may also become invalid and void. Hence, the protective shield is for the public at large u/s 107 of the RP Act and not meant to protect the Member of the House facing the consequences of disqualification, as in this case; and certainly not to ward off the necessity to refund salaries or emoluments availed as member of the House, which he was not entitled to at all."
In fact, the critical part of the judgment of Justice V Parthiban, which stands out for those who value probity and integrity in public life, is captured in these stinging language, " To become a member of the House is not given to any and many. Only a select few are given the privilege. Fighting elections in India does not come easy. In such a scenario, the political class must realise that they are fighting elections not to earn a living like a candidate seeking public employment, but they were entering the arena of public service to serve the cause of the people whom they seek to represent. There is inevitable and unavoidable sacrifice involved and extensive mobility and work attendant to serve as a member of the House. But the expectation of the member of the House is not the salary that he is entitled to. They get paid emoluments to give them the comfort to be able to devote more time for public interest. Viewed thus, this Court is not inclined to accept the submissions of the counsel for the pet
itioner to set aside the orders seeking refund of the salaries and allowances paid to him."
In fact, the judge even wondered,".... logically, the member himself should be graceful and willing to refund the sums, even without the State seeking a refund. That will add to the wisdom and status of those fighting for such public offices. Instead, to agitate as if he had earned his salaries for services rendered - would reduce the status and position of the office of a Member of Legislature - a constitutional position - to that of a government servant - an employee - being selected to a post does not sound or seem good.
Reference was made to decisions of the Supreme Court in Moti Ram (2012) and Allahabad High Court in Smt.Anita (2012), as the nearest parallels, but the decision in P.Veldurai is the newest kid on the block and only one of its genre.
Justice V.Parthiban may have struck a timely blow to probity and integrity in public life by directing Mr.P.Veldurai ex MLA to refund the money with 2019 national elections round the corner, thus espousing the cause of We The People.
(The author is practising advocate in the Madras high court)
