H. H. RAJA HARINDER SINGH v. S. KARNAIL SINGH
Citation: [1957] 1 S.C.R. 208; 1956 INSC 79
Court: Supreme Court of India
Bench: NATWARLAL HARILAL BHAGWATI, T.L. VENKATARAMA AIYYAR, BHUVNESHWAR PRASAD SINHA, S.K. DAS
Judgment date:
Case summary
1956 INSC 79. Supreme Court of India judgment dated 1956-12-20. H. H. RAJA HARINDER SINGH v. S. KARNAIL SINGH. Read the judgment and case details on LawSphereX.
Judgment text
208 SUPREME COURT REPORTS [1957] H. H. RAfA HARINDER SINGH ti. S. KAP. NAIL SINGH (BHAGWATI, VENKATARAMA AYYAR, B. P. SINHA and S. K. DAs JT. ) Election petition-Limitation for filing expirinz on a holida~ Petition filed next day-Whether petition time~barred-Candidate putting his own servants to election work-Whether the servants are employed for payment in connection with the election-Whether tAe salaries of such servants are election expenses-Representation of tit~ People (Conduct of Elections and Election Petitions) Rules, 1951. n·. 118 and 119-General Clauses Act (X of . 1897), s. 10. The last day for filing the election petition was a Sunday and the day following was a public holiday. The petition was presented on the next day after the public holiday. Held, that s, JO of the General Clauses Act was applicable and that the petition was presented within time.
The appellant, who retains a large staff of subordinates, was charged with employing 54 of them for purposes of the election in violation of Rule 118, and with failure to include their salaries in the return of his election expenses. The election tribunal found that 25 of the old paid employees of the appellant took part in his election campaign, that their number exceeded the statutory number provided by Rule 118 and that consequently the appel- lant was guilty of a major corrupt practice under s. 123 (7) of the Representation of the People Act, 1951. The tribunal further held that there was no evidence to show that the employees were engaged specifically for the purposes of the election, that they had been in the service of the appellant for a long time and that the emoluments paid to them were not election expenses.
In thc- result the tribunal set aside the election of the appellant : Held, that where a person has been in the employment of a candidate even prior to his election and his duties do not include election work but he takes part in the election, and the work which he does is casual and is in addition to his normal work, he is not within Rule 118. But if the work in connection with the election is such that he could be regarded as having been taken out of his normal work and put on election work, then he would be within Rule ll8. Hartlepooles (:ase, 6 O'M. & H. l and Borough of Oxford Case, 7 O'M. & H. 49, referred to. If the members of the staff of a cattdidate do their normal work and do casual work in connection with the election, the payment of salary to them Would be payment on account of their S. C. R. SUPREME COURT REPORTS 2f'f) employment as such members of the stall and not m connec- tion with the election. CrVIL APPELLATE JurusmcTION : Civil Appeal No. 132 of 1956.
Appeal by special leave from the judgment and order dated May 16, 1955, of the Election Tribunal, Rhatinda, in Election Petition No. 14 of 1954. C. K. Daphtary, Solicitor-General of India, /. B. Dadachanji, S. N. Andley, Rameshwar Nath and K. C. Pu. ri, for the appellant. N. C. Chatterji, A. N. Sinha and Gopal Singh, for respondent No. 1. 1956. December 20. The Judgment of the Court was delivered by VENKATARAMA AIYAR J. -The appellant was one of the candidates who stood ~or elec~ion to the Legis-- lative Assembly of the Patiala and East Punjab States Union from the Faridkot Constituency in the General Elections held in 1954. He secured the largest number of votes, and was declared duly elected. The result was notified in the Official Gazette on February 27, 1954, and the return of the election expenses was published therein OJ) May 2, 1954. On May 18, 1954, the first respondent filed a petition under s. 81 of the Representation of the People Act No.
XLIII of 1951, hereinafter referred to as the Act, and therein he prayed that the election of the appellant might be declared void on the ground that he and his agents had committed various corrupt and illegal practices, of which particulars were given. The appellant filed a written statement denying these allegations. He therein raised the further contention that the election petition had not been presented within the time limited by law, and was, therefore, liable to be dismissed. / Rule 119, which prescribes the period within which election petitions have to be filed, runs, so far as it is material, as follows : II9. "Time within which an election petition shall be presented :-An election petition calling in question an election may,- 1956 H. H. Raja Harinder Singh "· S. K arnail Singh 1956 H. H. Raja Harindtr Sinth v. S. K arnail Singh Vtnkatarama Arya' J.
210 SUPREME COURT REPORTS [1957] (a) in the case where such petition 1s against a returned candidate, be presented under section 81 at any time after the date of publication of the name of such cai1didate under section 67 but not later than fourteen days from the date of publication of the notice in the Official Gazette under rule 113 that the return of election expenses of such candidate a~d the declara- tion made in respect thereof have been lodged with the Returning Officer ;" The last date for filing the petition. according to this Rule, was May 16, 1954, but that happened to be a Sunday and the day following had been declared a public holiday. The first . respondent accordingly presented his pet. tt10n on May 18, 1954, and in paragraph 6 stated as fo! lows : "The offices were closed on 16th and 17tli; the petition is, therefore, well within limitation. " On this, the Election Commission passed the following order: "The petition was filed on lS-5-1954.
But for the fact that 16-5-1954 and 17-5-1954 were holidays, the petition would have been time-barred. Admit. " The plea put forward by the appellant in his written statement based on Rule 199(a) was that whatever might have been the reason therefor, tile fact was that the petition had not been filed "not later than fourteen days" from the publication of the return of the election expenses. which was on May 2, 1954, and that it was, therefore, not presented within the time prescribed. The Tribunal overruled this plea on the ground that under Rule 2(6) of the Ekction Rules, the General Clauses Act X of 1897 was applicable in interpreting them, and that under s. 10 of that Act, the election petition was presented within the time allowed by Rule 119(a).
0'1 the merits, the Tribunal held that of the grounds put forward in the Election Petition, one and only one had been substantiated, and that was that the appellant had employed for payment, m connection with his election, 25 persons in addition to the number of persons allowed under Rule 118 read along with Schedule VI thereto, and had thereby S. C. R. Sl'PREME COURT REPORTS 211 • committed the major corrupt practice mentioned in 11. 123(7) of the Act. The Tribunal accordingly declared the election void under s. 10'.. \(2)(b) of the Act. It also observed . that on its finding aforesaid, the appellant had incurred the disqualification enacted in ss. 140 (I) (a) and 140(2) of the Act. Against this decision, the appellant has preferred this appeal by special leave. On behalf of the appellant, two contentions have been pressed before us : ( 1) that the election pet1t10n was presented beyond the time prescribed by Rule 119(a), and should have been dismissed under s.
90 (4) of the Act; and (2) that on the findings recorded by the Tribunal, the conclusion that Rule 118 had been contravened does not follow and is erroneous. The first question turns on the interpretation of s. 10 of the General Clauses Act, which is as follows : "Where by any Central Act or Regulation made afte1 the commencement of this Act, any act or proceeding is directed or allowed to be dor. e or taken in any Court or office on a certain day or within a prescriled period, then if the Court or office is closed on that dav or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the r;cxt day afterwards on which the Court or office is open. " The contention of Mr. Solicitor-Genera!
on behalf of the- appellant is that this section can apply on its own terms only when the act in question is to be done "within a prescribed period", that under Rule 119(a) the petition has to be filed "not later than" fourteen d 'at J 214 SUPREME COURT REPORTS [1957} appellant continues to retain a large staff of subordi- nates, and the charge of the first respondent in his petition was that as many as 54 of them were. employed for purposes of election, and that Rule 118 had thus been violated. Rule 118 is as follows : "No person other than, or in addition to, those specified in Schedule VI shall be employed for pay- ment by a candidate or ! :is election agent in connection with an election.
" Under Schedule VI, a candidate for election may employ for payment in connection with election (1) one election agent, (2) one counting agent, (3) one clerk and one messenger, ( 4) one polling agent and two relief polling agents for each polling station or where a polling station has more than one polling booth, for each polling booth and (5) one messenger of each polling station, or for each polling booth, if a polling station has more th211 one booth. The finding of the Tribunal on this question is as follows : " ... it is clear that 25 persons named 111 the foregoing paragraphs took part in the election campaign of respondent No. 1 apart from any duties they may have performed as polling agents. Now admittedly all these persons are paid employees of respondent No. 1. As their number exceeds the statu- tory number provided in Rule 118, respondent No. 1 is undoubtedly guilty of a major corrupt practice under sectiou 123 (7).
A question however arises whether the fact that these persons were already in the employ of respondent No. 1 and were not specially engaged for purposes of election, would take them out of purview of Rule 118. In our judgment it would not. " Then, dealing with the question as to whether the return of election expenses made by tbe appellant was false in that it ar J. 1956 H. H. Raja Harinder Singh v. S. K arnail Singh V enkatarama 4'4! J1ar ]. 218 SUPREME COURT REPORTS [1957J course of his argument, it is doubtful how far the observations of Phillimore, J. , quoted above could be accepted as good law. They were, however, adopted in two decisions of the Election Tribunals of this country, to . which our attention was invited by Mr. Chatterj~e; In the Amritsar Case( ), the following observation occurs: "We also consider that if any man in the service of the respondent were put on election work, their wages for the period should have been shown in the return. (See Hartlepools Case) ( )".
The words "put on election work" in this passage suggest that the employees had been taken out of their original work. As there is no discussion of the present question, the authority of this decision is, in any event, little. In Farrukhabad Case( ), this passage, as also the observations of Phillimore, J. , were quoted, and in accordance therewith, it was held that "the salaries of Tilakdhafi Singh, Kundan Singh and Drigpal Singh for the period they worked in connec- tion with the election of the respondent No. 1 should have been shown in the return". It was found in that case that Tilakdhari Singh worked exclusively for 30 day~ in connection with the election and Kundan Singh and Drigpal Singh would appear to have similarly devoted themselves to election work for certain periods.
None of these cases has consider- ed what would amount to employment in connection with election, when the persons had been previously employed on other work ; and they throw no light on the present question. The position may thus be summed up : (1) For Rule 118 to apply, two conditions must be satisfied, viz. , there should have been an employment by the candidate of a person in connection with an election, and such employment should have been for payment. (1) [1924] Hammond's Election Cases 83. l•l [1 9 10] 6 o· M. & H. 1. (3) [1927) Hammond'! Election Ca. sea 349. S. C. R. SUPREME COURT REPORTS 219 (2) Where a person has been in the employment of the candidate even prior to his election and his duties do not include work in election and he takes part in election, whether he is to be regarded as employed in connection with the election will depend on the nature of the work which he performs during the election. (3) When the work which he does in election is .
casual and is in addition to the normal work for which he has been employed, he is not within Rule 118. But . if his work in connection with the election is such that he could. be regarded as having been taken out of his previous work and put on election work, then he would be within Rule 118. (4) Whether a person who has been previously employed by the candidate on other work should be held to have been employed in connection with election is a question of fact to be decided on the evidence in each case. In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election. It has been found that they had been in the service of the appellant for a long time and that their appointment was not colourable for election pur- poses. It has also been found that they were not paid anything extra for what work they might have done in connection with the election.
But there is no finding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work anCI put on election work. In the absence of such a finding, it cannot be held that Rule 118 had been infringed. It is possible that the Election Tribunal did not appreciate the true legal position and has in · consequence failed to record the findings requisite for a decision on Rule 118, and that would be a good ground on which we could, if the justice of the case required it, set aside the order and direct the matter to be heard afresh and· disposed of by another Tribunal in accordance with law. But we do not consider that this is a fit case for passing such an order. The evidence adduced by the first respondent is very H. H. R~ Harinder Sinzh v. S. Karnas 1Sin1h V1nkatarmrr. Ai1ar ]. • 1956 H. H. Rqja Harindd Singh ... S. X arnail Singh Ymkatarama Ai1<11' ].
• 220 SUPREME COURT REPORTS (1957} largely to the effect that the appellant's men did election work in the morning or in the evening, that is, out of office hours. That shows that the work of the staff was in addition to their normal duties, and on the principles stated above, they could not be held to have been employed in connection with the election. As the first respondent does not appear himself to have under- stood the true position under Rule 118 and has failed to adduce evidence requisite for a decision of the ques- tion, he must fail, the burden being on him to establish that that Rule had been infringed. In the result, this appeal is allowed, the order of the Election Tribunal is set aside and the election petition of the first respondent will stand dismissed. As the parties have each succeeded on one issue and failed on another, they will bear their own costs throughout. A p~al allowed. PUNJAB NATIONAL BANK Ltd. v. SRI RAM KANWAR, INDUSTRIAL TRIBUNAL, DELHI.
(BHAGWATI, VENKATARAMA AIYAR, B. P. SINHA and s. K. DAS JJ. ) Industrial Dispute-Travelling and halting allowances to the workerl representatives-Order of the Tribunal directing employer payment of such expenses pending adjudication proceedings-fun's· diction-Practice of the Industrial Courts-Costs-Discretion of the Tribunal-lndtutrial Disputes Act, 1947 (XIV of 1947), s. 11(1) (7)-Code of Civil Procedure (Act V of 1908), s. 35. Sub-section (7) of s. 11 of the Industrial Disputes Act, 1947, as inserted by Act 48 of 1950, provides : "Subject to the rules made under this Act, the costs of, and incidental to, any proceeding before a Tribunal shall be in the discretion of that Tribunal, and the. Tribunal shall have full power to determine by and to whom and to what extent and subject to what conditions, if aoy, such
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