PETITIONER:
HARISH CHANDRA BAJPAI
Vs.
RESPONDENT:
TRILOKI SINGH
DATE OF JUDGMENT:
21/12/1956
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
DAS, S.K.
CITATION:
1957 AIR 444 1957 SCR 370
ACT:
Election Dispute-Petition grounded on corrupt Practices
Matter, if of wider import than’ Particulars’-Trial’,
meaning of-Procedure if includes Power’s–Amendment, if’
and when permissible-Power of Election Tribunal-Person, when
can be said to be employed for Purposes of election-Contract
of service and contract for services-Distinction-
Representation of the People Act (XLIII of 1951), ss. 81,
83, cls. (1), (2) & (3), 90(2), 92, 123 cls.(7) & (8)-Code
of Civil -Procedure (Act V of 1908), 0. VI, r. 17.
HEADNOTE:
The respondent filed a petition under s. 81 of the
Representation of the People Act challenging the election of
the appellants to the Uttar Pradesh Legislative Assembly on
the ground that they had committed corrupt practices, the
material allegations
371
being, (1) that the appellants ” could in the furtherance of
their election enlist the support of certain Government
servants “, and (2) that the appellant No. 1 had employed
two persons in excess of the prescribed number for his
election purposes. No list of particulars of corrupt
practices under S. 83(2) Of the Act was attached to the
petition. Thereafter the respondent applied under s. 83(3)
Of the Act for an amendment of his petition by adding the
names of certain village Headmen (Mukhias) as having worked
for the appellants and later on become their polling agents.
The Election Tribunal allowed the amendment, when a fresh
petition on those allegations would have been time-barred,
holding that what were sought to be introduced by it were
‘mere particulars of the charge already made, and held that
corrupt practices under ss. 123(8) and 123(7) had been
committed by the appellants. It accordingly declared the
election void under S. 100(2)(b) of the Act. It was
contended on behalf of the appellants that the Election
Tribunal had no power either under s. 83(3) Of the Act or
under 0. VI, r. 17 Of the Code of Civil Procedure to allow
the amendment in question and its finding that the appellant
No. I had employed the two persons in addition to the
prescribed number was misconceived in law.
Held, that although the term ‘matter’ in S. 83(3) was of
wider import than ‘particulars I to be stated under s. 83(2)
and would comprehend the grounds on which the election was
sought to be set aside, s. 83(3) was not an exhaustive
provision on the power of amendment, its application being
limited to allegations of corrupt and illegal practices, and
that, therefore, in respect of other matters, the power of
amendment under 0. VI, r. 17, read with s. 90(2) of the Act
was not excluded, and the maxim expression exclusio
alterius, would not apply.
The word ‘trial’ in s. 90(-2) of the Act is used in a wide
sense as including the entire proceedings before the
Tribunal from the time when the petition is transferred to
it under s. 86 of the Act till the pronouncement of its
award.
There is no antithesis between ‘procedure’ in s. 90(2) and
powers’ in s. 92 of the Act and Where an. application would
lie to the Tribunal under s. 90(2) it would have’ the power
to pass, the necessary order on it.
The object of the legislature in enacting s. 92 of the Act
was to place the powers of the Tribunal in respect of the
matters mentioned therein as distinguished from the other
provisions of the Code, on a higher footing.
Sitaram v. Yograjsing, A.I.R. (1953) Bom. 293, approved.
Jagan Nath v. Jaswant Singh, (1954) S. C. R. 892, referred
to.
Sheo Mahadeo Prasad v. Deva Sharan, A. I. R. (1955 Patana
Si, disapproved.
372
While the Election Tribunal had undoubtedly the power under
s. 83(3) of the Act to allow an amendment. in respect of any
particulars of illegal and corrupt practices, or to permit
new instances to be included, provided the grounds or
charges were specifically stated in the petition, its power
to amend a petition under 0. VI, r. 17 Of the Code of Civil
Procedure could not be exercised so as to permit new grounds
or charges to be raised or the character of the petition to
be so altered as to make it in substance a new petition,
when a fresh petition on those allegations would be time-
barred.
Beal v. Smith, (1869) L. R. 4 C. P. 145; Greenock Election
Case, (1869) L. R. 4 C. P. 150 (footnote); Carrickfergus
Case, (1869) 1 O’M. & H. 264; Dublin Case, (1869) 1 O’M. &
H. 270 and Maude v. Lowley, (I 874) L. R. 9 C. P. 165,
referred to.
Chayan Das v. Amir Khan, [192O) L. R. 47 1. A. 255, not
followed.
Held further, that the amendment introduced a new charge,
altered the character of the petition and was beyond the
powers of the Tribunal and necessary evidence had not been
adduced to support a finding as to the additional employment
and no corrupt practices either under cl. (7) or: (8) Of S.
I23 had, therefore, been committed.
In deciding the question as to whether any person in
addition to the number permitted by the Act had been
employed by a candidate for his election purposes, the well-
established distinction between a contract for services and
a contract of service must be borne in mind and in absence
of any evidence to show that the contract with the person
engaged was one of service,-that he was to do the Work
personally, with or without the assistance: of others, lie
could not be held to have been employed in law.
Collins v. Hertfordshire Central Council, (1947) K. B. 598
and Dhayangadhara Chemical Works Ltd. v. State of
Saurashtra, (1957)S. C. R. 152, relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil AppEal No.333 of
1956.
Appeal by special leave against the judgment and order dated
March 23, 1955, of the Election Tribunal, Lucknow, in
Election Petition No. 320 of 1952.
C. K. Daphtary, Solicitor General of India, R. C. Gupta,
J. S. Trivedi and S. S. Shukla, for the appellant.
K. S.- Krishnaswamy Iyengar, S. P. Sinha and R. Patnaik,
for respondent No. 1.
373
1956. December 21. The Judgment of the Court was delivered
by
VENKATARAMA AIYAR J.-This is an appeal by special leave
against the order of the Election Tribunal, Faizabad,
declaring the election of the appellants to the Legislative
Assembly, Uttar Pradesh from the Lucknow Central
Constituency, void under s. 100(2)(b) of the Representation
of the People Act No. XLIII of 1951, hereinafter referred to
as the Act. The Constituency is a double-member
Constituency. one of the seats being reserved for a member
of the Scheduled Castes. The -polling, took place on 31-1-
1952, and the two appellants we-re declared elected, they
having secured the largest number of votes. On -June 10
1952, the respondent herein filed a petition under S. 81 of
the Act alleging that the appellants had committed a number
of corrupt practices, and prayed that the election might be
declared wholly void.
The appellants filed written. statements denying these
allegations, and on the pleadings, issues were framed on
January 17, 1953. Then followed quite 'a spate of
proceedings, consisting of applications for framing of fresh
issues for better particulars and for amendment of the
election petition, to which a more detailed reference will
presently be made. As a result of these proceedings, it was
not until September, 1954, that the hearing of the petition
began On March 23, 1955, the Tribunal delivered its judgment
and, by a majority, it set aside the election on two
grounds, (1) that the appellants had obtained the assistance
of four village officers, Mukhias, in furtherance of. their
election prospects and had thereby contravened s.123(8) of
the Act; and (2) that the first appellant had employed for
payment in connection with high election two persons in
addition to' the number permitted by Rule 118 read with
Schedule VI, 'namely, Ganga Prasad and Viswanath Pande, and
had there by infringed s. 123(7) of the Act. Before us, the
appellant's dispute the correctnes's of the conclusions on
both these points.
As regards the first point, the main contention of the
appellants that the charge that they had employed
374
four Mukhias in furtherance of their, election prospects was
not pleaded in the petition as originally presented and that
it came in only by an amendment dated November 28, 1953,
that. the Tribunal had no power to order that amendment, and
that, accordingly, the finding thereon should be
disregarded. It is necessary for a correct appreciation of
the contentions on either side to state the facts leading to
this amendment.
The material allegations in the petition as it was presented
on June 10, 1952, are contained in para 7(c), and are as
follows:
"That the respondents Nos. 1 and 2 could in furtherance of
their election enlist the support of certain Government
servants. The District Magistrate, Lucknow, organised the
opening of eye relief camps, and these functions were
utilised for the election propaganda of the respondents Nos.
1 and 2. An eye relief camp was proposed to be opened on
December 16, 195 1, at Kakori by Sri C. B. Gupta, Minister,
Civil Supplies, U.P., one of the chief organisers of the
election of the respondents Nos. 1 and 2. An election
meeting was advertised by the workers of the respondents
Nos. I and 2 to be' held within a short distance of the
proposed eye relief camp on the same day. This meeting was
amongst others addressed by Sri G. B. Pant, Chief Minister,
U.P., Sri C. B. Gupta and the respondent No. 1. It was also
attended by the Patwaris and Qanungo of the, Kakori Circle
including the Tahsildar, Lucknow and the Duty Superintendent
of Police, Lucknow.
"On December 27, 1951, an eye relief camp was similarly.
organised and opened at Kakori. The ceremony this time was
performed by Mrs. Vijay Lakshmi Pandit 'and immediately
thereafter from the same platform and at the same place
election speeches were made and the audience exhorted to
vote for Mrs. Vijay Lakahmi Pandit, a candidate for the
House of the People from that area and respondents Nos. 1
and 2. This meeting was attended -by, the District
Magistrate. Lucknow, Sub Divisional Magistrate, Lucknow,
Deputy Superintendent of Police, Lucknow,
735
Tahsildar, Lucknow and Patwaris and Qanungo of Kakori
Circle. The respondents Nos. I and 2 by this device
succeeded in creating an impression on the voters that they
had the support of the district officials.
There was no list of particulars attached to the petition as
provided in s. 83 (2) of the Act.
On December 15, 1952, the first appellant filed his written
statement, and therein he stated with reference to para 7
(c) that it was "wrong and denied that the answering
respondent in furtherance of his election enlisted the
support of any government servant." He also stated that the
allegations were not accompanied by a list, and were vague
and lacking in particulars and were liable to be struck off.
The written statement of the second appellant filed on
December 20, 1952, was also on the same lines as those of
the first appellant. Respondent No. 4, who was' a defeated
candidate and supported the respondent herein, filed a
written statement on December 3, 1952, wherein he alleged
that the appellants had obtained services of village
officers, such as Lambardars and Sarpanches in furtherance
of their election prospects. Respondent No. 9 who was
another defeated candidate also filed a written statement on
the same day, adopting the allegations in the statement of
the fourth respondent adding Mukhias to the list of village
officials whose assistance was procured by the Appellants.
On January 10, 1953, the respondent filed a replication to
the written statements of the appellants, wherein he stated
as follows
"As stated in the petition, the denial of the respondents
Nos. 1 and 2 is absolutely wrong, inasmuch as many
Government servants worked for, issued appeals and became
polling agents for respondents I and 2. In these meetings at
Kakori many government servants took part and some worked
for furtherance of the election of respondents Nos. I and 2
and issued appeals to the public to vote for respondents
Nos. I and 2 and also became their polling agents."
On January 24, 1953, the appellants filed a written
statement objecting to the reception of the replication
49
376
on the ground that the petitioner (respondent) had no right
to file it and that it was a mere device to add to the
original petition. They also filed an application on the
same date for a preliminary hearing of certain issues
relating to the contentions raised by them in their written
statements that the allegations in the petition were vague
and should be struck off for want of particulars, and the
same was posted for hearing on February 25, 1953. Arguments
were heard on these issues on that day and again on August
25, 1953, and the following days, and on October 31, 1953,
the Tribunal passed an order striking off some of the
allegations in the petition and calling upon the petitioner
to give particulars in respect of others. Dealing with para
7 (c) of the petition, the order stated :
" Paragraph 7 (C) is not vague. It shall remain as it is.
Corresponding paragraph of the replication introduces some
new matters. Therefore, the same shall be disregarded. The
Petitioner has not named ,the Government servants. He shall
supply the names of the officials including those of the
Patwaris and Qanungoes."
Meantime, after the preliminary argument aforesaid had
commenced and before it was concluded, the respondent filed
on February 27, 1953, an application for amendment of his
petition, the order on which is the main target of attack in
this appeal. It was presented under s. 83(3) of the Act,
and prayed that the petitioner " be allowed to amend the
details of para 7(c) by adding the words Village Headmen'
with their names and the fact that they worked and issued
appeal and subsequently they became the -polling agents of
respondents Nos. 1 and 2. It mentioned for the first time
the names of the Mukhias whose assistance the appellants
have been held to have obtained. This application was
opposed by -the appellants on the ground that the amendment
did not fall within s. 83(3),that, the matters sought to be
introduced thereby were new charges, and if admitted, they
would alter the very character of the petition, and that it
should not be granted, as a fresh petition on those
allegations would be barred on that date. It should be
mentioned
377
that oh January 22, 1953, respondent No. 4 had filed an
application to raise additional issues on his averments that
the appellants had obtained assistance from the village
officers. That application was also contested by the
appellants. It would appear that this application and the
amendment petition were heard together. On November 10,
1953, the Tribunal by a majority passed an order dismissing
the application of the fourth respondent for additional
issues. 'On November 28, 1953, it allowed, again by a
majority, the application of the respondent for amendment
observing that the matters sought to be introduced were
merely particular in respect of the charge set out in par&
7(c) of the petition, "that the respondents I and 2 could in
furtherance of their election enlist the support of certain
Government servants", and further that 0. VI, r. 17 of the
Civil Procedure Code was applicable to proceedings before
the Election Tribunal'.
The appellants attack the correctness of this conclusion,
and contend that the Tribunal had no power either under s.
83(3) or under 0. VI, r. 171 to order the amendment in
question.- They also contend that even if the Tribunal had
the power to order Amendment, the order in question is not
justified on the merits, and is erroneous. It is necessary
to set out the statutory provisions bearing on the question:
S.81(1). An election petition calling in question any
election may be presented on one or more grounds specified
in sub-ss. (1) and (2) of s. 100 and S. 101 to 'the Election
Commission by any candidate at such election or any elector
in such form 'and within such time but not earlier than the
date of publication of the name or names of the returned
candidate or candidates at such I election under s. 67, as
may prescribed.
S.83(1). An election petition shall contain a concise
statement of the material facts on which the petitioner
relies and shall be signed by the petitioner and verified in
the manner laid down in the Code of 'Civil Procedure, 1908
(Act V of 1908), for the verification of pleadings.
378
(2)The petition shall be accompanied by a list signed and
verified in like manner setting forth full particulars of
any corrupt or illegal practice which the petitioner
alleges, including as full a statement as possible as to the
names of the parties alleged to have committed such corrupt
or illegal practice and the date and place of commission of
each such practice.
(3) The Tribunal may, upon such terms as to costs and
otherwise as it may direct at any time, allow the
particulars included in the said list to be amended or order
such further and better particulars in regard to any matter
referred to therein-to be furnished as may in its opinion be
necessary for the purpose of ensuring a fair and effectual
trial of the petition.
85.If the provisions of s. 81, s. 83 or s. 117 are not
complied with, the Election Commission shall dismiss the
petition.
90 (2). Subject to the provisions of this Act and of any
rules made thereunder, every election petition shall be
tried by the Tribunal, as nearly as may be, in accordance
with the procedure applicable under the Code of Civil
Procedure, 1908 (Act V of 1908), to the trial of suits.
90 (4). Notwithstanding anything' contained in s. 85, the
Tribunal may dismiss an election petition which does not
comply with the provisions of s. 81,a. 83 or s. 117.
92.The Tribunal shall have the powers, which are vested in a
court under the Code of Civil Procedure, 1908 (Act V of
1908), when trying a suit in respect of, the following
matters:
(a) discovery and inspection;
(b) enforcing the attendance of witnesses and requiring the
depositor their expenses;
(c) competing the production of documents;
(d) examining witnesses on oath;
(e) granting adjournments;
(f) reception of evidence taken on affidavit; and
(g) issuing commissions for the examination of witnesses,
-and may summon and examine suo motu any person whose
evidence appears to it to be material; and shall be deemed
to be a civil court within the
379
meaning of ss. 480 and 482 of the Code of Criminal
Procedure, 1898 (Act V of 1898)."
Now, we start with this that s. 83(3) grants a power to the
Tribunal to amend particulars in a list. What is its scope?
Is it open to the Tribunal acting under this provision to
direct new instances of the corrupt practices to be added to
the list? And if it is, is that what it did in the present
case? It is contended by the learned Solicitor-General on
behalf of the appellants that s. 83(3) does not authorize
the inclusion of new instances of corrupt practices, and
that all that could be ordered under that provision was
giving of fuller particulars in respect of instances given
in the petition. The argument in, support of this
contention might thus be stated: Section 81 requires that
the election petition should state the grounds on which it
is founded. Section 83(1) enacts that it should contain -a
concise statement of the material facts on which the
petitioner relies, and s. 83(2) provides that the petition
should be accompanied by a list containing full particulars
of the corrupt or illegal practices. When the three
provisions are read together, it is clear that the
legislature has made a distinction between grounds in s.
81(1), facts ins. 83(1) and full particulars in s. 83(2);
and in this context, facts in s. 83(1) must mean instances
of the charge on which the petition is grounded and the
particulars referred to in s. 83(3) can only mean
particulars in respect of the instances set out in the
petition in accordance with s. 83(1). The consequence is
that an instance of a corrupt practice not given in the
petition, cannot be brought in under section 83(3). On this
reasoning, it is contended that the order of the Tribunal
dated November 28, 1953, permitting the respondent to allege
that the appellants obtained the assistance of four Mukhias,
whose names were mentioned for the first time in the
amendment petition, is outside the ambit of the power
conferred by s. 83(3).
We are unable to agree with this contention. In I our
opinion, s. 81(1) and s. 83, sub-ss. (1) and (2), when
correctly understood, support the contention of the
respondent that the Tribunal has authority to
380
allow an amendment even when that involves inclusion of new
instances, provided they relate to a charge contained: in
the petition. Taking first s. 81(1), it enacts that a
petition may be presented calling an election in question on
one of the grounds specified in a. 100, sub-ss. (1) and (2)
and section 101. These sections enumerate a number of
grounds on which the election may be set aside, including
the commission of the corrupt practices mentioned in s. 123
of the Act, and quite clearly it is the different categories
of Objections mentioned in s. 100, sub-ss. (1) and (2), S.
101 and s. 123 that constitute the grounds mentioned in s.
81(1). Then we come to s. 83(1). It says that the petition
should contain a concise statement 'of the material facts,
and that would include facts relating to the holding of the
election, the result thereof the grounds on which it is
sought to be set aside, the right of the petitioner to
present the petition and the like. Then s. 83(2) enacts
that when there is an allegation of corrupt or illegal
practice, particulars thereof' should be given in a separate
list. If the grounds on which an election' is sought to be
set aside are something other than the commission of corrupt
or illegal practices, as for example, when it is stated that
the nomination had been wrongly accepted or that the
returned candidate was not entitled to stand for election,
then s. 83(2) has no application, and the requirements of s.
83(1) are satisfied when the facts relating to those
objections are stated. The facts to be stated :under a.
83(1). are thus different from the particulars -which have
to be given -under a. 83(2). When# therefore, an election
is challenged on the ground that the candidate hag committed
the corrupt practices mentioned in section 123, instances
constituteing particulars thereof will properly fall within
s. 83(2) and not a. 83(1). The result is that the power
under a. 83(3) to allow further and better particulars will
include a power to allow fresh instances of the
charges,which form the grounds on which the election is
Questioned.
We are fortified in this conclusion by decisions of English
Courts, on statutory provisions which are in
381
pari materia with our enactment. Section 20 of the
Parliamentary Elections Act, 1868 enacts that an election
petition shall be in such form and state such matters as may
be prescribed, that is, by the rules. Rule 2 of the
Parliamentary Election Rules provides that the election
petition " shall state the holding and result of the
election and shall briefly state the facts and grounds
relied on to sustain the prayer ". Rule 5 gives the form of
an election petition and the third paragraph therein is as
follows.
" And your petitioners say (here state the facts and grounds
on which the petitioners rely)."
The true scope of these Provisions came up for consideration
in Beal v. Smith (1). There, the election petition merely
stated that " the respondent by himself and other. person.%
on his behalf, was guilty if bribery, treating and undue
influence." The respondent took out an application for an
order that the petition be taken off the file on the ground
that it merely stated the grounds but not the facts
constituting the particulars as required by Rule 2. In the
alternative, it was prayed that the petitioners should be
directed to give particulars relating to the several corrupt
practices. In rejecting the former prayer, Bovill C. J.
observed:
" Now, with regard to the form of the petition, it seems to
me that it sufficiently follows the spirit and intention of
the rules; and no injustice can be done by its generality,
because ample provision is made by the rules to prevent the
respondent being surprised or deprived of an opportunity of
a fair trial, by an order for such particulars as the judge
may deem reasonable. I think, therefore, it would be quite
useless to require anything further to be stated in the
petition than appears here."
With reference to the alternative prayer, it was held that
an order that the particulars be furnished three days prior
to the trial was a proper one to be passed. A similar
decision was given in the Greenoch Election Case, a report
of which is given in a footnote at page 150 of Beal v. Smith
(1)(1869) L. R. 4 C- P.145.
382
These decisions establish that the requirement as to
statement of grounds and facts is satisfied when the charge
on which the election is sought to be set aside is set out
in the petition, that the fare to give therein particulars
of corrupt and illegal practices on which it is founded is
not fatal to its maintainability, and that it is sufficient
if the particulars are ordered to be furnished within a
reasonable time before the commencement of the trial. On
the same reasoning, the conclusion should follow that s. 81
(1) and a. 83 (1) are complied with, when the grounds on
which the election is sought to be set aside, are stated in
the petition, those grounds being, as already stated, the
matters mentioned in s. 100, sub-ss. (1) and (2), s. 101 and
s. 123, which is attracted by s. 100 (2) (b), and that the
particulars in respect of those grounds, when they are
charges of corrupt or illegal practices, fall within s. 83
(2). There is, it should be observed, nothing in the
Election law of England corresponding to s. 83 (2), the
question of particulars being left there to be dealt with
under the Rules applicable to the trial of causes. The
consequence is that while under the English practice, the
petitioners are not obliged to state particulars of corrupt
practices in their petition, under s. 83 (2) a statement of
those particulars must be made in the petition in a separate
list annexed thereto. But this difference is more a matter
of form than of substance, as s. 83 (3) provides for
particulars being called for and furnished in the course of
the proceedings, and does not affect the conclusion as to
the power of the Tribunal to allow new instances to be
pleaded.
Section 83 (3) provides, it should also be noted, for the
list of particulars being amended or enlarged. It is not,
however, to be inferred from this that when the particulars
are mentioned in the body of the petition, they could not be
amended. The reference to the list, in a. 83 (3) must be
taken along with the provision in s. 83 (2) that particulars
are to be set out in a list to be attached to the petition.
The substance of the matter, therefore, is that under s. 83
(3) particulars can be amended and supplemented, and the
reason of it requires that the power could be exercised even
when
383
the particulars are contained in the body of the petition.
And even when there is no list filed, as in the present
case, it would be competent to the Tribunal to allow an
amendment giving for the first time instances of corrupt
practice, provided such corrupt practice has been made a
ground of attack in the petition.
One other argument urged by the appellants against this
conclusion must now be considered. It is based on the
language of s. 83(3). That section, it is urged, allows
firstly by an amendment of the particulars. included in the
list, and secondly " further and better particulars in
regard to any matters referred to therein" and that,
according to the appellants, means the particulars already
given in the list. it is accordingly contended that the
power to allow further and better particulars can be
exercised only in respect of particulars already furnished,
whether they be contained in the body of the petition or in
the list, and that, therefore, an order permitting inclusion
of new instances is outside the purview of s. 83(3). The
assumption underlying this contention is that the word
"matter" in s. 83 (3) means the same thing as "particulars".
We see no reason why we should put this narrow construction
on the word "matter". That word is, in our opinion, of
wider import than particulars, and would also comprehend the
grounds on which the election is sought to be set aside. If
the construction contended for by the appellant is correct,
the relevant portion of s. 83 (3) will read as " further and
better particulars in regard to any particulars referred to
therein", and that does not appear to us to be either a
natural or a reasonable reading of the enactment. Having
regard to the scheme of the Act stated above, we think that
s. 83 (3) is intended to clothe the Tribunal with a general
power to allow not merely an amendment of particulars
already given but also inclusion of fresh particulars,
pleading new instances, subject to the condition that they
are in respect of a ground set out in the petition. This is
in accordance with the law and practice obtaining in the
Election Courts in England. Thus,in the Carrickfergus Case
(1), in ordering
(1) [1869] 1 O’M. & H. 264, 265.
50
384
an application for amending particulars, so as to include
matters which had only then come to the knowledge of the
petitioner, O’Brien, J., observed :
” In some respects the Petitioner came down here manifestly
ignorant of the exact grounds upon which several of the
charges of the Petition were founded.
” I therefore thought it reasonable upon a proper case being
made out to allow the Petitioner to amend his bill of
particulars by adding such facts as only -recently came to
his knowledge. I consider that in the trial of these
petitions, where the purity of the election is questioned,
the most searching enquiry should be instituted, and it is
the duty of the Judge to afford every facility in his power
to that investigation.”
In the Dublin Case (1), the order was one directing a list.
of particulars to be amended, the Court observing:
” I shall allow the utmost ‘latitude to amend, unless it is
a case in which I see that the party kept back information
at the time the list was furnished.”
In this view, the order of amendment in question is not open
to attack on the ground that it has permitted new instances
to be raised. What has to be seen is whether those
instances are, in fact, particulars in respect of a ground
put forward in the petition, or whether they are, in
substance, new grounds of attack.
Before dealing with this question, it will be convenient to
consider the alternative contention raised for the
respondent -that even if the Tribunal had no power to order
the amendment in question under s. 83 (3) of the Act, it was
competent to do so under o. VI, r. 17, Civil Procedure
Code, and that this Court should not in special appeal
interfere with the discretion exercised by it in making the
order. That raises the question which has been very much
debated both in the Election Tribunals and in the High
Courts of the States as to whether 0. VI, r. 17 applies to
proceedings before Election Tribunals. Mr. K. S. Krish-
naswami Ayyangar, learned counsel for the respondent,
contends that it does, by force of s. 90 (2) of the Act,
under which the Tribunal is to try a petition “as
(1) [1869] 1 O’M. & H. 270, 272.
385
nearly as may be in accordance with the procedure applicable
under the Code of Civil Procedure, 1908, to the trial of
suits.” Now, in A. G. v. Sillem (1) it was stated by Lord
Westbury that the word “practice”and it means, as observed
in Poyser V. Mixors (2) the same - thing as procedure-
denotes ” the rules that make or guide the Curcus cirise,
and regulate the proceedings ina cause within the walls
or limits of the Court itself “. And these proceedings
include all ,steps, which might be taken in the prosecution
or defence thereof, including an application for amendment.
In Maude v. Lowley (3), the point arose for decision whether
the power conferred on the Election Court by s. 21(5) of the
Corrupt Practices (Municipal Elections) Act, 1872, to try
the petition, subject to the provisions of the Act, as if it
were a cause within its jurisdiction, carried with it a
power to order amendment of the petition. It was held that
it did. That precisely is the point here.
But it is contended for the appellants that 0. VI, r. 17
cannot be held to apply to proceedings before the Tribunal
by reason of s. 90 (2), because (1) under that section, it
is only the trial of the election petition that has to be in
accordance with the provisions of the Civil Procedure Code,
and the question of amendment of the petition relates to a
stage anterior to the trial;(2) s. 92 enumerates certain
matters in respect of which the Tribunal is to have the
powers of a court under the Civil Procedure Code, and as
amendment of pleadings is not one of them, 0. VI, r. 17 must
be held to have been excluded from its jurisdiction; (3) the
Act makes a distinction between procedure and powers, s. 90
(2) extends the provisions of the Civil Procedure Code to
proceedings before Tribunals only in respect of procedure,
and power to order amendment under 0. VI, r. 17 is not
within the extension; and (4) s. 90(2) is, in any event,
subject to the provisions of the Act and the rules made
thereunder, and the power of amendment under s. 83 (3) being
limited to particulars, the
(1) [1864] 10 H.L.C. 704,723; II E.R. 1200, 12O9.
(2) [1881]7 Q.B.D. 329,333.
(3) (1874) L.R. 9 CP. 165. 172.
386
general power of amendment under 0. VI, r. 17 must be held
to have been excluded. The correctness of these contentions
must now be examined.
(1)Taking the first contention, the point for decision is as
to what the word ‘trial’ in s. 90 (2) means. According to
the appellants, it must be understood in a limited sense, as
meaning the final hearing of the petition, consisting of
examination of witnesses, filing documents and addressing
arguments. According to the respondent, it connotes the
entire proceedings before the Tribunal from the time that
the petition is transferred to it under s. 86 of the Act
until the pronouncement of the award. While the word’
trial’ standing by itself is susceptible of both the narrow
and the wider senses indicated above, the question is, what
meaning attaches to it in s. 90 (2), and to decide that we
must have regard to the context and the setting of the
enactment. Now, the provisions of the Act leave us in no
doubt as to in what sense the word is used in s. 90(2). It
occurs in Chapter III which is headed ” Trial of election
petitions “. Section 86 (4) provides that if during the
course of the trial any member of a Tribunal is unable to
perform his functions, the Election Commission is to appoint
another member, and thereupon the trial is to be continued.
This provision must apply to retirement or relinquishment by
a member, even before the hearing commences, and the
expression ” during the course of the trial ” must therefore
include the stages prior to the hearing. Section 88 again
provides that the trial is to be held at such places as the
Election Commission may appoint. The trial here must
necessarily include the matters preliminary to the hearing
such as the settlement of issues, issuing directions and the
like. After the petition is transferred to the Election
Tribunal under s. 86,, various steps have to be taken before
the stage can be set for hearing it. The respondent has to
file his written statement ; issues have to be settled. If
‘trial’ for the purpose of s. 90(2) is to be interpreted as
meaning only the hearing, then what is the provision of law
under which the Tribunal is to call for written statements
and settle issues ? Section 90(4) enacts
387
that when an election petition does not comply with the
provisions of s. 81, s. 83 or s. 117, the Tribunal may
dismiss it. But if it does not dismiss it, it must
necessarily have the powers to order rectification of the
defecte arising by reason of non-compliance with the
requirements of s. 81, s. 83 or section 117. That not being
a power expressly conferred on it under s. 92 can only be
sought under ‘Is. 90(2), and resort to that section can be
had only if trial is understood as including proceedings
prior to hearing. Section 92 enacts that the Tribunal shall
have powers in respect of various matters which are vested
in a court under the Civil Procedure Code when trying a
suit, and among the matters set out therein are discovery
and inspection, enforcing attendance of ‘witnesses and
compelling the production of documents, which clearly do not
form part of the hearing but precede it. In our opinion,
the provisions of Chapter III read as a whole, clearly show
that ‘trial’ is used as meaning the entire proceedings
before the Tribunal from the time when the petition is
transferred to it under s. 86 until the pronouncement of the
award.
(2)The second contention urged on behalf of the appellants
is that if the provisions of the Civil Procedure Code are
held to be applicable in their entirety to the trial of
election petitions, then there was no need to provide under
s. 92 that the Tribunal was to have the powers of courts
under the Code of Civil Procedure in respect of the matters
mentioned therein, as those powers would pass to it under s.
90(2). But this argument overlooks that the scope of s. 90
(2) is in a material particular different from that of s.
92. While under s. 90(2) the provisions of the Civil
Procedure Code are applicable only subject to the provisions
of the Act and the rules made thereunder, there is no such
limitation as regards the powers conferred by s. 92. It was
obviously the intention of the legislature to put the powers
of the Tribunal in respect of the matters mentioned in s. 92
as distinguished from the other provisions of the Code on a
higher pedestal, and as observed in Sitaram v. Yoqrajising
(1), they are
(1) A.I.R. [1953] BOM. 293.
388
the irreducible minimum which the Tribunal is to possess.
(3) It is then argued that s. 92 confers powers on the
Tribunal in respect of certain matters, while s. 90(2)
applies the Civil Procedure Code in respect of matters
relating to procedure, that there is a distinction between
power and procedure, and that the granting of amendment
being a power and not a matter of procedure, it can be
claimed only under s. 92 and not under a. 90(2). We do not
see any antithesis between procedure’ in s. 90(2) and
‘powers’ under s. 92. When the respondent applied to the
Tribunal for amendment, he took a procedural step, and that,
he was clearly entitled to do under s. 90(2). The question
of power arises only with reference to the order to be
passed on the petition by the Tribunal. Is it to be held
that the presentation of a petition is competent, but the
passing of any order thereon is not? We are of opinion that
there is no substance in this contention either.
(4) The last contention is based on the provision in s. 90(2)
that the procedure prescribed in the Code of Civil Procedure
is to apply subject to the provisions of the Act and the
Rules. It is argued that s. 83(3) is a special provision
relating to amendments, -and that it must be construed as
excluding 0. VI, r. 17. The result, according to the
appellants, is that if an amendment could not be ordered
under s. 83(3), it could not be ordered under 0. VI, r. 17.
This contention appears to us to be wholly untenable. The
true scope of the limitation enacted in s. 90(2) on the
application of the procedure under the Civil Procedure Code
is that when the same subject-matter is covered both by a
provision of the Act or the rules and also of the Civil
Procedure Code, and there is a conflict between them, the
former is to prevail over the latter. This limitation
cannot operate, when the subject-matter of the two
provisions is not the same. Section 83(3) relates only to
amendment of particulars, and when the amendment sought is
one of particulars, that section will apply to the exclusion
of any rule of the Civil Procedure Code which might conflict
with it, though it does not appear that there is any such
rule. But where the amendment
389
relatesnot to particulars but to other matters, that is a
field not occupied by s. 83(3), and 0. VI, r. 17 will
apply.The fallacy in the argument of the appellants lies in
the assumption that s. 83(3) is a comprehensive enactment
on the whole subject of amendment, which it clearly is not.
In this view, there is no scope for the application of the
maxim, expressio unius exclusio alterius, on which the
appellants rely. It should be mentioned that the provision
in s. 83(2) for stating the particulars separately in a list
attached to the petition is one peculiar to the Indian
Statute, and the legislature might have considered it
desirable ex abundanti cautela to provide for a power of
amendment in respect thereto. To such a situation, the
maxim quoted above has no application. In Maxwell on
Interpretation of Statutes, Tenth Edition, pages 316-317,
the position is thus stated :
“ Provisions sometimes found in statutes, enacting
imperfectly or for particular cases only that which was
already and more widely the law, have occasionally furnished
ground for the contention that an intention to alter the
general law was to be inferred from the partial or limited
enactment, resting on the maxim expressio unius, exclusio
alterius. But that maxim is inapplicable in such cases.
The only inference which a court can draw from such
superfluous provisions (which generally find a place in Acts
to meet unfounded objections and idle doubts), is that the
legislature was either ignorant or unmindful of the real
state of the law, or that it acted under the influence of
excessive caution.”
Vide also Halsbury’s Laws of England, Hailsham’s Edition,
Volume 31, page 506, para 651. We are accordingly of
opinion that the application of 0. VI, r. 17, Civil Procdure
Code to the -proceedings before the Tribunal is not excluded
by a. 83(3).
Turning next to the authorities, the decision of this Court
in Jagan Nath v. Jaswant Singh (1) goes far to conclude the
question in favour of the respondent. In that case, a
petition to set aside an election was filed without
impleading one of the candidates, Baijnath,
(1)[1954] S.C.R. 892,
390
who had been nominated but had withdrawn -from the contest.
That was against s. 82 of the Act. The respondent then
applied for an order dismissing the petition on the ground
that it could not go on in the absence of Baijnath. The
Tribunal held on this petition that the non-joinder of
Baijnath was not fatal to the maintainability of the
petition, and passed an order directing him to be impleaded.
This order was challenged on the ground that there was no
power in the Tribunal to order a new party to be impleaded.
But this Court repelled this contention, and held on a
review of the provisions of the Act including s. 90(2) that
the Tribunal had the power to pass the order in question
under 0. 1, rr. 9, 10 and 13. This is direct authority for
the position that trial for purposes of s. 90(2) includes
the stages prior to the hearing of the petition, and the
word I procedure’ therein includes power to pass orders in
respect of matters not enumerated in s. 92. In Sitaram v.
Yograjsingh (1) it was held that ‘Procedure’ in s. 90(2) and
I powers’ in s. 92 were interchangeable terms, that the
procedure applicable under s. 90(2) was wider than what
would be applicable to the hearing of a. suit, and that the
Tribunal had power in a proper case to order amendment of a
petition. In Sheo Mahadeo Prasad v. Deva Sharan(2), it was
held that the application of 0. VI, r. 17 to proceedings
before the Tribunal was excluded by section 83(3) of the
Act. For the reasons already given, we are unable to agree
with this view. We are of opinion that the law was
correctly laid down in Sitaram v. Yograjsingh(1), and in
agreement with it, we hold that the Tribunal has power in
appropriate cases to direct amendment of the petition under,
O. VI, r. 17.
It is next contended for the appellants that even if s.83(3)
does not exclude the application of 0. VI, r. 17 to the
proceedings before the Tribunal, the exercise of the power
under that rule must, nevertheless, be subject to the
conditions prescribed by a. 81 for presentation of an
election petition, that one of those conditions was that it
should be presented within the
(1) A.I.R. [1953] Bom. 293.
(2) A.I.R. [1955] Patna 81.
391
time allowed therefor, and that accordingly no amendment
should be allowed which would have the effect of defeating
that provision. The decisions in Maude v. Lowley(1) and
Birkbeck and others v. Bullard (1) are relied on in support
of this contention. In Maude v. Lowley (1), the facts were
that an election petition was filed alleging that the
successful candidate had employed as paid canvassers
residents of the ward, and that the election was, in
consequence, void. Then an application was filed for
amending the petition by alleging that residents of other
wards were also similarly employed, and that was ordered by
Baron Pollock. The correctness of this order was questioned
on the ground that on the date of the application for
amendment a fresh petition on those allegations would be
barred, and that therefore the Court had no jurisdiction to
pass the order which it did. In upholding this contention,
Lord Coleridge C. J. observed that section 21(5) gave power
to the Court to amend the petition, that that power was
subject to the provisions of the Act, that one of those
provisions was s. 13(2), which prescribed- the period within
which an election petition could be filed, that the power of
amendment could be exercised only subject to this provision,
and that accordingly an amendment which raised a new charge
should be rejected if a fresh petition on that charge would
be barred on that date. He also observed that the matter
was not one of discretion but of jurisdiction. This was
followed in Clark v. Wallond (3). In Birbeck and others v.
Bullard (2) the application was to amend the petition by
adding a new charge, and it was held tha that could not be
done after the expiry -of the period of limitation fixed in
the Act for filing an election petition, and the decision
was put on the ground that the power to grant amendment was
” subject to the provisions of the Act.”
On these authorities, it is contended for the appellants
that even if the Tribunal is held to possess a power to
order amendments generally under 0. VI,
(1) [1874] L.R. 9 C.P. 165. (3) (1883) 52 L.J.Q.B.
321.
(2) (1885-86) 2 Times Law Reports 273.
392
r. 17, an order under that Rule cannot be made when a new
ground or charge is raised, if the application is made
beyond the period of limitation prescribed for filing
election petitions. The Tribunal sought to get over this
difficulty by relying on the principle well established with
reference to amendments under 0. VI, r. 17 that the fact
that a suit on the claim sought to be raised would be barred
on the date of the application would be a material element
in deciding whether it should be allowed or not but would
not affect the jurisdiction of the court to grant it in
exceptional circumstances as laid down in Charan Das v. Amir
Khan (1). But this is to ignore the restriction imposed by
s. 90(2) that the procedure of the Court under the Code of
Civil Procedure in which 0. VI, r. 17 is comprised, is to
apply subject to the provisions of the Act, and the rules,
and there being no power conferred on the Tribunal to extend
the period of limitation prescribed, an order of amendment
permitting a new ground to be raised beyond the time limited
by s. 81 and r. 119 must contravene those provisions and is,
in consequence, beyond the ambit of authority conferred by
s. 90(2). We are accordingly of opinion that the contention
of the appellants on this point is well-founded, and must be
accepted as correct.
The result of the foregoing discussion may thus be summed
up:
(1)Under s. 83(3) the Tribunal has power to allow
particulars in respect of illegal or corrupt practices to be
amended, provided the petition itself specifies the grounds
or charges, and this power extends to permitting new
instances to be given.
(2)The Tribunal has power under 0. VI, r. 17 to order
amendment of a petition, but that power cannot be exercised
so as to permit new grounds or charges to be raised or to so
alter its character as to make it in substance a new
petition, if a fresh petition on those allegations will then
be barred.
We have now to decide whether on the principles stated
above, the order of amendment dated November 28, 1953, was
right and within the competence of
(1)[1920] L.R. 47 I.A. 255.
393
the Tribunal. To decide that, we must examine whether what
the respondent sought to raise by way of amendment was only
particulars in respect of a charge laid in the petition, or
whether it was a new charge. The paragraph in the petition
relevant to the present question is 7(c), and that has been
already set out in extenso. Leaving out the allegations
relating to the meetings held at Kakori, what remain of it
is only the allegation that ” respondents I and 2 could in
furtherance of their election enlist the support of
Government servants.” The word ” could ” can only mean that
the respondents were in a position to enlist the support of
Government servants. It does not amount to an averment
that, in fact, they so enlisted their support. It is argued
for the respondent that the allegation in para 7(c) really
-means that the appellants had, in fact, enlisted the
support of Government servants, and that that amounts to a
charge under s. 123(8) of the Act of procuring the
assistance of Government- servants for furtherance of their
election prospects. Why then does the petition not state it
in plain terms ? The difference between “could” and “did” is
too elementary to be mistaken. The respondent has in other
paragraphs relating to other charges clearly and
categorically asserted what the appellants did and what
their agents did. And why was a different phraseology
adopted in para 7(c) 9 It is to be noted that apart from
this allegation, the rest of the paragraph is taken up with
details of the two meetings at Kakori, and it winds up with
the following allegation:
“ The respondents 1 and 2 by this device succeeded in
creating an impression on the voters that they had the
support of the District officials.”
This suggests that the charge which the respondent sought to
level against the appellants was that they moved in public
so closely with high dignitaries as to create in the minds
of the voters the impression that they were favoured by
them. We are unable to read into the allegations in para
7(c) as originally framed any clear and categorical
statement of a charge under
394
s. 123(8), or indeed under any of the provisions of the
Election law.
The respondent does not dispute that the language in which
the allegation in para 7(c) is couched does not import that
any corrupt practice had, in fact, been committed, but he
contends that this defect is merely one of expression, and
that the appellants had understood it correctly as meaning
commission of corrupt practices by them, which is what the
respondent meant to assert. It is no doubt true that plead-
ings should not be too strictly construed, and that regard
should be had to the substance of the matter and not the
form. Even so, what, in substance, is the charge which
could be gathered from a general and vague allegation that
the appellants ” could ” enlist the support of Government
officials ? It should not be forgotten that charges of
corrupt practices are quasi-criminal in character, and that
the allegations relating thereto must be sufficiently clear
and precise to bring home the charges to the candidates; and
judged by that standard, the allegation in para 7(c) is
thoroughly worthless. The contention of the respondent that
the appellants understood the allegation as meaning that
they had committed corrupt practices, is not borne out by
the record. In the application which the appellants filed
on January 24, 1953, for trial of certain questions as
preliminary issues, they stated in para 7 as follows:
“Para 7(c). The allegation contained in this para is vague
and indefinite. It nowhere alleges that the respondent nos.
1 and 2 obtained or procured or abetted, or attempted to
obtain or procure the assistance of any government servants.
No list given.”
And again, in the objection filed by the appellants to the
application of the respondent for amendment, they stated
that it was doubtful whether even the original allegation in
para 7(c) amounted to a major corrupt practice within s.
123(8) of the Act. The Tribunal does not deal with this
aspect of the matter and simply assumes that the petition as
presented did raise a charge under s. 123(8). We are of
opinion
395
that this assumption is erroneous and that its finding is
vitiated thereby.
But even if we are to read ” could ” in para 7(c) as meaning
” did “, it is difficult to extract out of it a charge under
s. 123(8). The allegation is not clear whether the
Government servants were asked by the appellants to support
their candidature, or whether they were asked to assist them
in furtherance of their election prospects, and there is no
allegation at all that the Government servants did, in fact,
assist the appellants in the election. On these
allegations, it is difficult to hold that the petition in
fact raised a charge under s. 123(8). It is a long jump
from the petition as originally laid to the present
amendment, wherein for the first time it is asserted that
certain Mukhias no Mukhias are mentioned in the petition
assisted the appellants in furtherance of their election
prospects, and that thereby the corrupt practice mentioned
in s. 123(8) had been committed. The new matters introduced
by the amendment so radically alter the character of the
petition as originally framed as to make it practically a
new petition, and it was not within the power of the
Tribunal to allow an amendment of that kind.
Counsel for the appellants also contended that even if the
Tribunal had the power under 0. VI, r. 17 to permit an
amendment raising a new charge, it did not under the
circumstances exercise a sound and judicial discretion in
permitting the amendment in question. There is considerable
force in this contention. The election petition was filed
on June 10, 1952, which was the last date allowed under a.
81 and r. 119. It contained in para 7(c) only the bare
bones of a charge under a. 123(8), assuming that it could be
spelt out of it. Nothing further is heard of this charge,
until we come to December, 1952, when respondents 4 and 9
who sailed with the petitioner, -filed statements alleging
that the appellants had obtained the assistance from
Government servants including Mukhias in furtherance of
their election prospects. On January 16, 1953, the
respondent herein filed a replication in which he sought to
weave the above
396
allegations into the fabric of his petition, but the result
was a mere patchwork. It should be mentioned that there is
no provision of law under which a replication could be filed
as a matter of right, nor was there an order of the Tribunal
allowing it. On February 25, 1953, the appellants opened
their arguments at the hearing of the preliminary issue, and
thereafter, with a view to remedy the defects which must
have been then pointed out, the respondent filed his present
application for amendment. Even that was defective, and had
to be again amended. And what is remarkable about this
application is that no at tempt was made to explain why it
was made after such long delay and why the new allegations
were not made in the original petition. The position taken
up by the respondents was that the amendment only made
express what was implicit in para 7(c). The Tribunal was of
opinion that notwithstanding all these features, the
amendment should be allowed as it was in the interests of
the public that purity of elections should be maintained.
But then, public interests equally demand that election
disputes should be determined with despatch. That is the
reason why a special jurisdiction is created and Tribunals
are constituted for the trial of election petitions. Vide
the observations of Lord Simonds L.C. in Senanayake v.
Navaratne (1).
In the present case, having regard to the circumstances
stated above, the order of amendment would be open to grave
criticism even if it had been made in an ordinary
litigation, and in an election matter, it is indefensible.
The strongest point in favour of the respondent is that we
should not in special appeal interfere with what is a matter
of discretion with the Tribunal. It is not necessary to
pursue this matter further, as we are of opinion that the
order of amendment dated November 28, 1953, is, for the
reasons already stated. beyond the powers of the Tribunal,
and therefore must be set aside and the finding based on
that amendment that the appellants had committed the corrupt
practice mentioned in s. 123(8) of the Act must be reversed.
In this view, it becomes unnecessary
(1) [1954] A.C. 640.
397
to deal with the further contention of the appellants that
there is no legal evidence in support of the finding of the
Tribunal that they had obtained the assistance of four
Mukhias in furtherance of their election prospects.
Then there is the question whether the first -appellant has,
as held by the Tribunal, again by a majority, contravened s.
123(7) of the Act. The facts found are that one Ganga
Prasad was engaged by the first appellant to prepare three
carbon copies of the Electoral Rolls and was paid Rs. 550/-
at the rate of Re. 0-8-0 per hundred voters and likwise, one
Viswanath Pande was engaged to enter the names of the voters
in printed cards and was paid Rs. 275/- at Re. 0-4-0 per
hundred cards. Both these are undoubtedly expenses incurred
in connection with the election and have, in fact, been
shown by the first appellant in the return of election
expenses against column K. Now the contention of the
respondent which has found favour with the Tribunal is that
both Ganga Prasad and Viswanath Pande must be held to have
been employed for payment in connection with the election,
and as with their addition, the, number of persons allowed
to be employed under Schedule VI has been exceeded, the
corrupt practice mentioned in s. 123(7) of the Act has been
committed. It is contended by the Solicitor-General that on
the facts found Ganga Prasad and Viswanath Pande cannot be
said to have been employed by the first appellant,and that
the conclusion of the Tribunal to the contrary is based on a
misconception of law. Now’ whether a person is an employee
or not is a question of fact, and if there had been any
evidence in support of it, this Court would not interfere
with the finding in special appeal. But the respondent, on
whom the burden lies of establishing contravention of r.
118, has adduced no evidence whatsoever, and all that is on
record is what the first appellant deposed while he was in
the box. He merely stated that Ganga Prasad and Viswanath
Pande were asked to do the work on, contract basis. That is
wholly insufficient to establish that there was a contract
of employment of those persons by him. It was argued for
the respondent that there could be a contract of employment
in
398
respect of piece-work as of time-work, and that the evidence
of the first appellant was material on which the Tribunal
could come to the conclusion to which it did. It may be
conceded that a contract of employment may be in respect of
either piece-work or time-work; but it does not follow from
the fact that the contract is for piece-work that it must be
a contract of employment. There is in law a well-
established distinction between a contract for services, and
a contract of service, and it was thus stated in Collins v.
Hertfordshire Central Council (1):
In the one case the master can order or require what is to
be done while in the other case he can not only order or
require what is to be done but how it shall be done.”
This Court had occasion to go into this question somewhat
fully in Dharangadhara Chemical Works Ltd. v. State of
Saurashtra (2) , and it was there held that the real test
for deciding whether the contract was one of employment was
to find out whether the agreement was for the personal
labour of the person engaged, and that if that was so, the
contract was one of employment, whether the work was time-
work or piece-work or whether the employee did the whole of
the work himself or whether he obtained the assistance of
other persons also for the work. Therefore, before it could
be held that Ganga Prasad and Viswanath Pande were employed
by the first appellant, it must be shown that the contract
with them was that they should personally do the work, with
or without the assistance of other persons. But such
evidence is totally lacking, and the finding, therefore,
that they had been employed by the first appellant must be
set aside as based on no evidence.
Neither of the grounds on which the election of the
appellants has been declared void, could be supported. We
must accordingly allow the appeal, set aside the order of
the Tribunal and dismiss the election petition filed by the
respondent, with costs of the appellants throughout.
Appeal allowed.
Election petition dismissed.
(1) [1947] K.B. 598, 615. (2) [1957] S.C.R. 152.
399