PETITIONER:
H. H. RAJA HARINDER SINGH
Vs.
RESPONDENT:
S.KARNAIL SINGH
DATE OF JUDGMENT:
20/12/1956
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
DAS, S.K.
CITATION:
1957 AIR 271 1957 SCR 208
ACT:
Election petition-Limitation for filing expiring on a
holiday - Petition filed next day-Whether Petition time-
barred-Candidate putting his own servants to election
work–Whether the servants aye employed foy payment in
connection with the election-Whether the salaries of such
servants are election exPenses-Representation of the People
(Conduct of Elections and Election Petitions) Rules, 1951,
Yr. 118 and 119–General Clauses Act (X Of 1897), s. 10.
HEADNOTE:
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. 10 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 appellant 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 the 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 118.
Hartlepooles Case, 6 O’M. & H. 1 and Borough of Oxford Case,
7 O’M. & H. 49, referred to.
If the members of the staff of a candidate 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
209
employment as such members of the staff and not in connec-
tion with the election.
JUDGMENT:
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 132 of 1956.
Appeal by special leave from the judgment and order dated
May 16, 1955, of the Election Tribunal, Bhatinda, in
Election Petition No. 14 of 1954.
C. K. Daphtary, Solicitor-General of India, J. B.
Dadachanji, S. N. Andley, Rameshwar Nath and K. C. Puri, 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 for election to the Legislative Assembly of the
Paterson and East Punjab States Union from the Farber
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 on 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 We 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:
119. “Time within which an election petition shall be
presented :–An election petition calling in question an
election may,-
27
210
(a) in the case where such petition is against a returned
candidate, be presented under section 81 at any time after
the date of publication of the name, of such candidate 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
and the declaration 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 petition on May
18, 1954, and in paragraph 6 stated as follows:
”
The offices were closed on 16th and 17th; the petition is,
therefore, well within limitation.”
On this,, the Election Commission passed the following order
:
“The petition was filed on l8-5-1954. 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 119(a) was that whatever might have
been the reason therefor, the 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 Election 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). – On 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, in
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
211
committed the major corrupt practice mentioned in s. 123(7)
of the Act. The Tribunal accordingly declared the election
void under s. 100(2)(b) of the Act. It also observed that
on its finding aforesaid, the appellant had incurred the
disqualification enacted in ss. 140(1)(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 petition 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 after the
commencement of this Act, any act or proceeding is directed
or allowed to be done or taken in any Court or office on a
certain day or within a prescribed period, then if the Court
or office is closed on that day 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
next day afterwards on which the Court or office is open.”
The contention of Mr. Solicitor-General 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 days, that the two
expressions do not mean the same thing, the words of the
Rule being more peremptory, and that accordingly s. 10 of
the General Clauses Act cannot be invoked in aid of a
petition presented under Rule 119, later than fourteen days.
In support of this contention, he invites our attention to
some of the Rules in which the expression “the time within
which” is used, as for example, Rule 123, and he argues that
when a statute uses two different expressions, they must be
construed as used in two different senses. He also points
out that whenever the Legislature intended
212
that if the last date on which an act could be performed
fell on a holiday, it could be validly performed on the next
working day, it said so, as in the proviso to s. 37 of the
Act, and that there would be no need for such a provision,
if s. 10 of the General Clauses Act were intended generally
to apply.
This argument proceeds on an interpretation of s. 10 of the
General Clauses Act which, in our opinion,is erroneous.Broadly
stated, the object of the section is to enable a person
to do what he could have done on a holiday, on the next
working day. Where, therefore, a period is prescribed for
the performance of an act in a court or office, and that
period expires on a holiday, then according to the section
the act should be considered to have been done within that
period, if it is done on the next day on which the court or
office is open. For that section to apply, therefore, all
that is requisite is that there should be a period pres-
cribed, and that period should expire on a holiday. Now, it
cannot be denied that the period of fourteen days provided
in Rule I 1 9 (a) for presentation of an election petition
is a period prescribed, and that is its true character,
whether the words used are ” within fourteen days” or ”not
later than fourteen days”. That the distinction sought to
be made by the appellant between these two expressions is
without substance will be clear beyond all doubt, when
regard is had to s. 81 of the Act. Section 81 (1) enacts
that the election petition may be presented “within such
time as may be prescribed, and it is under this section that
Rule 119 has been framed. It is obvious that the rule-
making authority could not have intended to go further than
what the section itself had enacted, and if the language of
the Rule is construed in conjunction with and under the
coverage of the section under which it is framed, the words
“not later than fourteen days” must be held to mean the same
thing as “within a period of fourteen days”. Reference in
this connection should be made to the heading of Rule 119
which is, ” Time within which an election petition shall be
presented “. We entertain no doubt that the legislature has
used both
213
the expressions As meaning the same thing, and there are
accordingly no grounds for holding that s. 10 is not
applicable to petitions falling within Rule 119.
We are also unable to read in the proviso to s. 37 of the
Act an intention generally to exclude the operation of s. 10
of the General Clauses Act in the construction of the Rules,
as that will be against the plain language of Rule 2 (6).
It should be noted that proviso applies only to s. 30 (c) of
the Act, and it is possible that the Legislature might have
considered it doubtful whether s. 30 (c) would, having
regard to its terms, fall within s. 10 of the General
Clauses Act and enacted the province abundant cauterize.
The operation of such a beneficent enactment as a. 10 of the
General Clauses Act is not, in our opinion, to be cut down
on such unsubstantial grounds as have been urged before us.
We are accordingly of opinion that the petition which the
respondent filed on May 18, 1954, is entitled to the
protection afforded by that section and is in time.
We should add that the appellant also raised the contention
that if we agreed with him that the election petition was
not presented in time, we should hold that the order of the
Election Commission admitting the petition was not one of
condonation within the proviso to s. 85, because that
proceeded on the footing that the petition was in time, and
did not amount to a decision that if it was not, there were
sufficient grounds for excusing the delay. We are not
disposed to agree with this contention; but in the view
which we have taken that the petition is in time, it is
unnecessary to consider it.
Then the next question-and that is one of substance-is
whether there has been contravention of Rule 118. The
material facts are that -the appellant is the quondam ruler
of Faridkot, which enjoyed during the British regime the
status of an independent State, and came in for judicial
recognition as such in Sirdar Gurdyal ‘Singh v. Rajah of
Faridkote (1), and, after Independence, became merged in the
State of Pepsu. The
(1) (I894) L.R. 21 I.A. 171.
214
appellant continues to retain a large staff of subordinates,
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 payment by a candidate or
his 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
for each polling station, or for each polling booth, if a
polling station has more than one booth. The finding of the
Tribunal on this question is as follows:
“ … it is clear that 25 persons named in the foregoing
paragraphs took part in the election campaign of respondent
No. I 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
statutory number provided in Rule 118, respondent No. I is
undoubtedly guilty of a major corrupt practice under section
123 (7). A question however arises whether the fact that
these persons were already in the employ of respondent No. I
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 the appellant was false in that it
did not include anything on account of the services of the
25 employees, the Tribunal says:
“ We have held under Issue No. 3 that respondent No. I did
utilise the services of 25 of his employees for furthering
his election prospects. Now there is no evidence on the
record to show that these employees
215
were engaged specifically for the purposes of election. All
of them had been in the service of respondent No. I for a
long time before the election in normal course. Therefore,
there is no reason why the emoluments paid should be charged
to the election account. However, if any additional
allowances were paid to these persons that would certainly
be chargeable to the election account. But there is no
evidence on the record to show that any such allowance was
paid.”
Now, the question is whether on these facts there is a
contravention of Rule 118. The contention of Mr. Solicitor-
General for the appellant is that the Rule would apply only
if ‘the employment of the persons was specifically for work
in connection with the election and such employment was for
payment. In other words, according to him it is only
employment ad hoc for the election that’ is within the
mischief of the Rule. On behalf of the respondent Mr. N. C.
Chatter bee contends that it is not necessary for the Rule
to operate that there should have been an employment
specially for the purpose of the election, and that it would
be sufficient if the persons who did work in connection with
the election were in the employment of the candidate, and
that employment carried with it payment of salary or
remuneration.
In our opinion, neither of these contentions is wellfounded.
Rule 118 does not require that the person engaged by a
candidate to work in the election should have been specially
employed for the purpose of the election. It is sufficient,
on the wording of the Rule, that person is employed in
connection with the election. At the same time, the
requirements of Rule 118 are not satisfied by proving merely
that the person does work in connection with the election.
That work must be done under a contract of employment.
Thus, if the candidate has been maintaining a regular staff
of his own and its members have been doing personal service
to him and he has been paying them and then the election
supervenes, and off -and on he sets them on election work
but they continue to do their normal work as members of his
staff, it cannot
216
be said of them that they have been employed in connection
with the election. But if, on the other hand, he takes them
out of their normal work and puts them on whole-time or
substantially whole-time work in connection with the
election, that would amount to converting their general
employment into one in connection with the election. It
will be a question of fact in each case whether what the
candidate has done amounts merely to asking the members of
the staff to do casual work in connection with the election
in addition to their normal duties, or whether it amounts to
suspending the work normally done by them and assigning to
them election work instead.
Then again, it is a condition for the application of the
Rule that the employment of the person must be for payment.
If the members of the staff continue to do their normal work
and do casual work in connection with the election, the
payment of salary to them would be a payment on account of
their employment as such members of the staff and not in
connection with the election. Rule 118 would not apply to
that case, as there is neither an employment in connection
with the election, nor a payment on account of such
employment. Indeed, the salary paid to the members would
not even be election expenses liable to be included in the
return. But if, in the above case, the members are paid
extra for their work, such extra payment will have to be
included in the return of election expenses, though it ’may
be that Rule 118 itself might have no application for the
reason that there is no employment for election and the
payment is not in respect of such employment. If, however,
the members of the staff are switched off from their normal
work and turned on to election work so that it could be said
that work has been assigned to them in supersession of their
normal work, then the salary paid to them could rightly be
regarded as payment for work in connection with election
within Rule 118. That being our view on the construction of
Rule 118, we shall now proceed to consider what the position
is, on the authorities cited before us.
217
In the Hartlepools Case(1) the question arose with
reference to one Butler who was the general secratary of Mr.
Furness, the returned candidate, and certain clerks in a
company in which Mr. Furness, had considerable influence.
All these persons had taken part in the election. As
regards Butler, Phillimore J. observed that if it could be
held that at the time’ of his employment his duties included
also work in elections if and when they, were held, then a
proportionate part of his salary should be regarded as
election expenses; but, on the facts, he held that it was no
part of the duties of Butler in respect of his standing
employment to be election agent when called upon, and that,
therefore, no part of his salary need be shown as election
expenses. As put by Pickford, J., in Ins concurring
judgment, Butler was paid ” his salary as private secretary
and was not paid anything as election agent “. Counsel for
the appellant relies on these observations, and argues that
on the finding of the Tribunal that the 25 men had been in
service for a, long time, there could be no question, of
their having been employed for work in connection with
election, and that they were, therefore, neither election
agents nor was the salary paid to them payment on account of
any employment in connection with the election. But then,
considering the effect of the clerks of the company taking
part in the election, Phillimore J. observed:
“ … I am certainly inclined to think that if a business
man takes his business clerks and employs them for election
work which, if he had not business clerks, would be normally
done by paid clerks, he ought to return their salaries as
part of his expenses.”
Counsel for respondent strongly relies on these obser-
vations. But then, the point was not actually decided by
Philimore, J., as the evidence relatinig to the matter was
incomplete, and Pickford, J. expressly reserved his opinion
on the question.. In view of the remarks of Sankey, J., in
the Borough of Oxford Case (2), in the
(1) [1910] 6 O’M. & H. 1.
28
(2) 7 O’M. &H. 49, 56-57
218
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. Chatterjee.In the
Amritsar Case(1), 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(2) “.
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(3), this passage,, as also the observations
of Phillimore, J., we’re quoted, and in accordance
therewith, it was held that the salaries of Tilakdhari
Singh, Kundan Singh and Drigpal Singh for the period they
worked in connection with the election of the respondent Nol
should have been shown in the return It was found in that
case that Tilakdhari Singh worked exclusively for 30 days in
connections 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
considered 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 thsu 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.
(2) [1910] 6 O’M. & H. 1.
(3) [1927] Hammond’s Election Cases 349.
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 l 18. 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 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 colorable for election purposes. 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 and put on
election work. In the absence of such a finding, it cannot
be held that Rule II 8 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
220
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 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 question, he must fail, the
burden being on him to establish 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.
Appeal allowed.