20 December 1956
Supreme Court


Case number: Appeal (civil) 132 of 1956






DATE OF JUDGMENT: 20/12/1956


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.