Judgment :- Radhakrishnan, Ag. C.J. Question that is posed for consideration in this case is whether a voter can invoke section 36 (1) of the Kerala Panchayat Raj Act calling upon the State Election Commission to decide as to whether a member has become disqualified under section 35(k), especially when that member has already become disqualified and that order has attained finality so far as that member is concerned. 2. Ussain, the third respondent, was elected as member of Ward No.6 of Kunnamangalam Grama Panchayat, but on account of his consecutive absence for four times in the Welfare Standing Committee Meeting of the Panchayat he entailed a disqualification under section 35(k) of the Act. Secretary of the Panchayat issued Ext. P1 notice dt.2-6-2006 under Section 37(2) of the Act informing him of his disqualification under section 35(k) of the Act. Ussain then filed a petition before the Panchayat under section 37(2) of the Act seeking restoration of his membership. Committee of the Panchayat dismissed the same vide Ext.P3 decision. Ussain then filed a petition under section 36(1) of the Act before the Election Commission which was numbered as OP.No.23 of 2006, which was later dismissed as not pressed. Therefore so far as Ussain is concerned, the order of disqualification under section 35(k) has become final. Question that has come up for consideration in this case is whether a voter can still challenge the order of disqualification by invoking section 36 (1) of the Kerala Panchayat Raj Act calling upon the State Election Commission to decide as to whether third respondent Ussain has become disqualified under section 35(k) of the Act, especially, when order of disqualification as far as third respondent is concerned, has attained finality. Learned single Judge answered the question in the affirmative placing reliance on a bench decision of this court in Rajan v. Kerala State Election Commission, (1999 (3) KLT 601) and took the view that section 36 of the Act has conferred the right on any other member of the Panchayat and on a voter of the Panchayat to move the Election Commission, since the loss of membership of even a member would lead to altering the majorities in the Panchayat and it is a matter of serious consequence not only to the member concerned but also to the entire Panchayat. Learned single Judge therefore held that the election petition filed by 4th respondent voter before the Election Commission is maintainable. Aggrieved by the same this appeal has been filed. 3. Sri. K. Ramakumar, counsel appearing for the appellants submitted that the learned single Judge has committed an error in holding that the petition filed by 4th respondent before the Election Commission is maintainable under section 36(1) of the Panchayat Raj Act. Counsel submitted that third respondent has already entailed disqualification and the order of disqualification has become final. Counsel submitted that the petition preferred by the 3rd respondent for restoration of his membership under section 37(2) of the Act was dismissed by the Panchayat Committee and also the application preferred by him under section 36(1) of the Act before the Election Commission was also dismissed as not pressed. Counsel therefore submitted that since the order of disqualification has attained finality, a voter cannot invoke subsection (1) of section 36 of the Panchayat Raj Act for a declaration that third respondent has not entailed disqualification. Sri. V.G. Arun, counsel appearing for 4th respondent tried to sustain the order of the learned single Judge and reiterated his contentions. 4. We are afraid that the learned single Judge has not properly appreciated the scope of section 36 of the Kerala Panchayat Raj Act. We may extract the said provision for easy reference: “ 36. Determination of subsequent disqualification of a member:- (1) Whenever a question arises as to whether a member has become disqualified under Section 30 or Section 35 except clause (n) thereof after having been elected as a member, any member of the panchayat concerned or any other person entitled to vote at the election in which the member was elected, may filed a petition before the State Election Commission, for decision. Provided that, the Secretary of the Officer authorized by the Government in this behalf may refer such a question to the State Election Commission for decisions. (2) The State Election Commission, after making such enquiry as it considers necessary in the petition referred to in or the reference made thereunder in sub-section (1) whether so however that the State Election Commission may pass an interim order as to whether a member may continue in office or not till a decision is taken on the petition or the matter involved in the reference. (3) A Petition or reference referred to in sub-section (1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when trying a suit” Election Commission was called upon to decide the question as to whether a member has become disqualified under section 30 or section 35 (k) only when a question arises as to whether he has become disqualified or not. Once that question has attained a finality in the sense that question does not arise, the question of invoking section 36(1) by any member of the Panchayat or any other person entitled to vote at the election in which the member was elected, does not arise. Any member of the Panchayat or any other person entitled to vote at the election in which the member was elected can filed a petition before the Election Commission for a decision under section 36(1) whenever a question arises as to whether a member has become disqualified under section 30 or section 35 except clause (n). Further the proviso to section 36(1) also it may be noted, says that the Secretary or the Officer authorized by the Government in that behalf may refer such a question to the State Election Commission for decisions. Section 36 therefore confers powers on the State Election Commission to decide that issue on a reference made by the Secretary or Officer authorized by the Government in that behalf or by any member of the Panchayat concerned or any other person entitled to vote at the election in which the member was elected, if such a question arises for decision. 5. 5. Section 35 of the Kerala Panchayat Raj Act, 1994 deals with disqualification of members which says that subject to the provisions of Section 36 or Section 102, a member shall cease to hold office as such if he absents himself without the permission of the Panchayat concerned from its meeting or the meeting of the Standing Committee thereof for a period of three consecutive months reckoned from the date of commencement of his term of office or of the last meeting that he attended, or of the restoration to office as member under sub-section (1) of Section 37, as the case may be, or if within the said period, only in less than three meetings of the Panchayat or of the Standing Committee as the case may be, have been held, absents himself from three consecutive meetings held after the said date. 6. Section 37 deals with restoration of membership which we extract hereunder for easy reference. “37. Restoration of membership.- (1) Where a person ceases to be a member of a Panchayat at any level under Section 31 or clause (a) of Section 35, he shall be restored to office for such portion of the period for which he was elected as may remain unexpired at the date of such restoration, if and when the sentence is annulled on appeal or revision or the disqualification caused by the sentence is removed; and any person elected to fill the vacancy in the interim shall, on such restoration, vacate office. (2) Where a person ceases to be member under clause (K) of Section 35 the Secretary of the Panchayat concerned shall at once intimate the fact in writing to such person and report the same at the next meeting of the Panchayat. (2) Where a person ceases to be member under clause (K) of Section 35 the Secretary of the Panchayat concerned shall at once intimate the fact in writing to such person and report the same at the next meeting of the Panchayat. If such person applies for restoration to the Panchayat on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Panchayat may at the meeting next after the receipt of such application restore him to his office of member: Provided that a member shall not be restored more than twice during his term of office.” Sub-section (2) of section 37 says that where a person ceases to be member under clause (k) of Section 35 the Secretary of the Panchayat concerned shall intimate the fact in writing to such person and report the same at the next meeting of the Panchayat and if such person applies for restoration to the Panchayat on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Panchayat may at the meeting next after the receipt of such application restore him to his office of member provided that a member shall not be restored more than twice during him term of office. 7. We are of the view, when a question arises as to whether a member has become disqualified under section 35(k) that member can invoke section 36(1) of the Act and seek a decision from the Election Commission. So also, such a person can invoke section 37(1) for restoration of his membership by preferring an application under sub-section (2) of section 37 before the Panchayat but a voter cannot invoke section 36(1), if that elected member has already entailed disqualification and that order of disqualification has become final. An elected member can always invoke subsection (1) of section 36 even if the Panchayat Committee has rejected his application under sub-section (1) of section 37 for restoration of his membership. 8. We however, find it difficult to approve the reasoning in Rajan’s case (supra), which says that remedies available under sections 36 and 37 (2) are inconsistent remedies. In our view those provisions operate on different situations. Section 36(1) calls upon the Election Commission to decide as to whether a member has entailed disqualification. 8. We however, find it difficult to approve the reasoning in Rajan’s case (supra), which says that remedies available under sections 36 and 37 (2) are inconsistent remedies. In our view those provisions operate on different situations. Section 36(1) calls upon the Election Commission to decide as to whether a member has entailed disqualification. Section 37(2) gives an opportunity for a disqualified member for restoration of his membership. On facts this case stands on a different footing, hence reference to a Larger Bench does not arise. In the instant case, petition was moved under section 36(1) of the Act not by the person who entailed disqualification but by a voter. So far as a voter is concerned, in our view, once the member has already become disqualified and that order has become final, no question arises as to whether the elected member has become disqualified or not so as to enable a voter to invoke sub-section (1) of section 36 of the Kerala Panchayat Raj Act. In view of the above mentioned declaration, we are of the view, OP.No.42 of 2006 preferred by the 4th respondent before the State Election Commission is not maintainable. We therefore quash Ext.P10 order and hold that Election Commission has no jurisdiction to entertain such a petition. Appeal is therefore allowed and the judgment of the learned single Judge is set aside.