H. H. Raja Harinder Singh vs S.Karnail Singh
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 132 of 1956
Decision Date: 20 December 1956
Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das, Venkatarama AIyar
In the matter styled H. H. Raja Harinder Singh versus S. Karnail Singh, the Supreme Court of India delivered its judgment on 20 December 1956. The bench that heard the appeal consisted of Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha and Justice S. K. Das. The petitioner was H. H. Raja Harinder Singh and the respondent was S. Karnail Singh. The case is reported in the 1957 volume of the All India Reporter at page 271 and also in the Supreme Court Reports at page 208. The dispute arose under the provisions governing election petitions, particularly the question of limitation for filing a petition when the last day for filing fell on a Sunday and the following day was a public holiday, and whether a petition presented on the next business day after the holiday was time‑barred. The petition also raised the issue of whether a candidate who employed his own servants for election work had, in effect, employed them for payment in connection with the election and whether the salaries paid to those servants should be treated as election expenses under Rules 118 and 119 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, read with Section 10 of the General Clauses Act of 1897.
The Court noted that the last day for filing the election petition was a Sunday and that the day immediately thereafter was a public holiday. Because the petition was presented on the first day after the holiday, the Court applied Section 10 of the General Clauses Act and held that the petition was filed within the prescribed time and was therefore not time‑barred. The appellant, who maintained a large staff of subordinates, was charged with employing fifty‑four of his employees for election‑related activities in contravention of Rule 118, and with failing to include the salaries of those employees in the return of his election expenses. The election tribunal had found that twenty‑five of the appellant’s long‑standing paid employees participated in his election campaign, that their number exceeded the statutory limit set by Rule 118, and consequently that the appellant was guilty of a major corrupt practice under Section 123(7) of the Representation of the People Act, 1951.
However, the tribunal also observed that there was no evidence to show that the employees had been engaged specifically for the purposes of the election; they had been in the appellant’s service for a considerable period, and the remuneration paid to them was not, in the tribunal’s view, election expense. On that basis, the tribunal set aside the appellant’s election. The Supreme Court then examined the principle that when a person is employed by a candidate before the election and his normal duties do not include election work, but he does some casual election work in addition to his ordinary responsibilities, such a person does not fall within the scope of Rule 118. Conversely, if the work performed in connection with the election is such that the employee is effectively taken out of his normal duties and assigned to election work, then the employee would be covered by Rule 118. The Court referred to Hartlepooles Case (6 O’M. & H. 1) and the Borough of Oxford Case (7 O’M. & H. 49) in support of this analysis. The Court further held that when members of a candidate’s staff carry out their regular duties and also perform occasional election‑related tasks, the salary paid to them is to be treated as remuneration for their employment as staff members and not as an election expense.
The Court recorded that the appeal arose under Civil Appeal No. 132 of 1956 and was taken on special leave from the judgment and order dated 16 May 1955 of the Election Tribunal, Bhatinda, in Election Petition No. 14 of 1954. Counsel for the appellant included the Solicitor‑General of India together with other representatives, while counsel for respondent No. 1 appeared on behalf of the petitioner. The judgment was delivered on 20 December 1956. The appellant had been one of the candidates contesting the Legislative Assembly of the Paterson and East Punjab States Union from the Farber Constituency in the general elections held in 1954. He obtained the highest number of votes and was consequently declared duly elected. The official result was published in the Gazette on 27 February 1954, and the return of election expenses was placed in the Gazette on 2 May 1954.
On 18 May 1954 the first respondent filed a petition under section 81 of the Representation of the People Act, 1951, seeking a declaration that the appellant’s election was void on the ground that the appellant and his agents had engaged in various corrupt and illegal practices, the particulars of which were set out in the petition. The appellant answered by denying the allegations and additionally argued that the petition had been filed outside the period prescribed by law and therefore should be dismissed. Rule 119 governs the time limit for filing election petitions and provides that, when a petition is directed against a returned candidate, it must be presented at any time after the publication of the candidate’s name 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 the candidate and the declaration thereof have been lodged with the Returning Officer. Accordingly, the last date for filing was 16 May 1954, a Sunday, with the following day declared a public holiday. The respondent therefore presented the petition on 18 May 1954, stating in paragraph 6 that the offices were closed on the 16th and 17th and that the petition was therefore within the limitation. The Election Commission recorded that the petition was filed on 18 May 1954 and that, but for the holidays on the 16th and 17th, it would have been time‑barred, and it admitted the petition. The appellant’s written statement relied on Rule 119(a), contending that the petition had not been filed “not later than fourteen days” from the publication of the return of election expenses on 2 May 1954 and was therefore out of time. The Tribunal, however, overruled this plea, observing that Rule 2(6) of the Election Rules incorporates the General Clauses Act, 1897, and that, under section 10 of that Act, the petition was deemed to have been presented within the period allowed by Rule 119(a).
It was established that the petition had not been filed “not later than fourteen days” after the publication of the return of election expenses, which had been published on 2 May 1954. Consequently, the petition had been presented after the period prescribed by the rule.
The Tribunal dismissed the appellant’s written‑statement plea that Rule 119(a) might excuse the delay. The Tribunal relied on Rule 2(6) of the Election Rules, which provides that the General Clauses Act X of 1897 is to be used for interpreting the rules. Under section 10 of that Act, the Tribunal concluded that the election petition had, in fact, been presented within the time allowed by Rule 119(a).
On the merits, the Tribunal examined all the grounds raised in the election petition. It found that only one ground was proved: the appellant had employed twenty‑five persons for payment in connection with his election, exceeding the number permitted by Rule 118 read together with Schedule VI to that rule. This excess amounted to the “major corrupt practice” described in section 123(7) of the Act. Accordingly, the Tribunal declared the election void under section 100(2)(b) of the Act and noted that, on that finding, the appellant was disqualified pursuant to sections 140(1)(a) and 140(2) of the Act.
The appellant challenged the Tribunal’s decision by filing an appeal by special leave. Two principal contentions were advanced on his behalf. First, the appellant argued that the election petition had been filed after the period prescribed by Rule 119(a) and therefore should have been dismissed under section 90(4) of the Act. Second, the appellant contended that the Tribunal’s conclusion that Rule 118 had been violated was erroneous and did not follow from the evidence.
The first issue required an interpretation of section 10 of the General Clauses Act, which reads: “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.”
Mr Solicitor‑General, appearing for the appellant, submitted that section 10 could apply only when the statute requires an act to be done “within a prescribed period.” He observed that Rule 119(a) uses the stricter expression “not later than fourteen days,” which he said does not convey the same meaning as “within.” Because the wording of the rule was peremptory, he argued that section 10 could not be invoked to save a petition filed after the fourteen‑day deadline.
To support this view, the solicitor‑general referred to other election rules, such as Rule 123, where the phrase “the time within which” appears, and contended that when a statute employs two different expressions, they must be understood as having distinct senses. He further pointed out that the legislature, when intending to allow a filing on the next working day after a holiday, had expressly provided for that in the proviso to section 37 of the Act. He argued that if section 10 were meant to apply generally, such specific provisions would be unnecessary. The Court, however, regarded this line of reasoning as based on an erroneous interpretation of section 10.
The argument presented by counsel for the appellant relied on the occurrence of the phrase “the time within which” in certain statutory rules, for instance Rule 123, and asserted that when a statute employs two distinct expressions, those expressions must be understood to convey two different meanings. He further observed that whenever the Legislature intended that the last permissible date for performing an act fell on a holiday, the legislation expressly provided that the act could be validly performed on the next working day, as illustrated by the proviso to section 37 of the Act. According to the appellant, the existence of that proviso demonstrated that section 10 of the General Clauses Act could not be intended to apply generally, because otherwise such a specific provision would be unnecessary. This line of reasoning rested on an interpretation of section 10 of the General Clauses Act that, in the Court’s view, is mistaken.
Broadly speaking, the purpose of section 10 is to permit a person to accomplish on the next working day what he could have done on a holiday. Consequently, when a law prescribes a period for the performance of an act before a court or office and that period terminates on a holiday, the act performed on the first subsequent day on which the court or office is open must be treated as having been done within the prescribed period. The sole requirements for the operation of the provision are that a period is prescribed and that the period ends on a holiday.
It follows that the fourteen‑day period specified in Rule 119(a) for the filing of an election petition is indeed a prescribed period, irrespective of whether the wording employs “within fourteen days” or “not later than fourteen days”. The distinction advocated by the appellant between these two expressions lacks substance, a conclusion that becomes evident when reference is made to section 81 of the Act. Section 81(1) provides that an election petition may be presented “within such time as may be prescribed,” and Rule 119 was framed under the authority of that provision. The rule‑making body could not have intended to exceed the scope of the enabling section, and when the language of Rule 119 is read in conjunction with the section that empowers it, the phrase “not later than fourteen days” must be understood to convey the same meaning as “within a period of fourteen days.”
The heading of Rule 119 further reinforces this construction, as it reads “Time within which an election petition shall be presented.” The legislature therefore employed both expressions with identical significance, and there is no basis for concluding that section 10 of the General Clauses Act does not apply to petitions filed under Rule 119. Moreover, the Court is unable to discern, from the proviso to section 37 of the Act, any intention to generally exclude the operation of section 10.
The Court examined whether section 10 of the General Clauses Act should be applied in interpreting the Rules, noting that to do so would contradict the clear wording of Rule 2(6). It observed that the proviso to the relevant provision is limited to section 30(c) of the Act and suggested that the Legislature may have been uncertain whether the terms of section 30(c) fell within the scope of section 10, leading it to include the proviso. The Court held that the purpose of a beneficial provision such as section 10 should not be undermined on the weak grounds raised before it. Consequently, the Court concluded that the petition filed by the respondent on 18 May 1954 was protected by section 10 and was timely. The Court also addressed the appellant’s argument that, had the petition been untimely, the Election Commission’s order admitting the petition could not be treated as a condonation under the proviso to section 85 because that order was based on the assumption that the petition was filed within the prescribed period and did not represent a finding that the delay was excusable. The Court declined to adopt this contention, and because it had already determined that the petition was timely, it found no need to consider the argument further.
The next issue for the Court was whether there had been a breach of Rule 118. The factual background revealed that the appellant was the former ruler of Faridkot, a state that had enjoyed independent status during the British era and had been judicially recognized as such in Sirdar Gurdyal Singh v. Rajah of Faridkot (1944) L.R. 21 I.A. 171. After Indian independence, Faridkot merged with the State of Patiala and East Punjab States Union (PEPSU). The appellant retained a sizable staff of subordinates. The first respondent alleged in his petition that as many as fifty‑four of these subordinates were employed for election‑related work, thereby violating Rule 118. Rule 118 states that no person other than, or in addition to, those named in Schedule VI may be employed for payment by a candidate or his election agent in connection with an election. Schedule VI permits a candidate to pay, in connection with an election, one election agent, one counting agent, one clerk and one messenger, one polling agent and two relief polling agents for each polling station (or for each polling booth where a station has multiple booths), and one messenger for each polling station (or each polling booth where there are multiple booths). The Tribunal’s finding on this question was that the circumstances clearly demonstrated a breach of the statutory limits.
It was found that twenty‑five individuals named in the earlier paragraphs participated in the election campaign of the first respondent, aside from any duties they may have performed as polling agents. All of these individuals were acknowledged to be paid employees of the first respondent. Because their number exceeded the limit set by Rule 118, the first respondent was held to be unquestionably guilty of a major corrupt practice under section 123(7). A question subsequently arose as to whether the fact that these individuals were already employed by the first respondent and were not hired especially for election work might remove them from the operation of Rule 118. The Court concluded that such prior employment did not exempt them from the rule.
The Tribunal also examined whether the election‑expense return filed by the appellant was false because it omitted any amount for the services of the twenty‑five employees. The Tribunal recorded that it had previously held, under Issue No. 3, that the first respondent had indeed utilised the services of those twenty‑five employees to further his election prospects. However, the Tribunal observed that there was no evidence on the record showing that these employees had been engaged specifically for election purposes; they had been in the service of the first respondent for a long period before the election, performing their normal duties. Consequently, the Tribunal saw no reason to charge their regular salaries to the election account. It added that if any additional allowances had been paid to these persons, such allowances would have to be charged to the election account, but no evidence of any such allowances was presented.
The question then turned to whether, on the basis of these facts, there was a violation of Rule 118. Counsel for the appellant argued that the rule should apply only when a person is employed specifically for work connected with the election and is paid for that employment, contending that only ad hoc election‑related employment falls within the rule’s purpose. Counsel for the respondent countered that it was unnecessary for the rule to require a special election‑specific appointment; it would be sufficient if the persons performing election work were already employees of the candidate and received a salary or remuneration. The Court found that neither argument was well founded. It held that Rule 118 does not require a person to be specially employed for election work; the wording of the rule is satisfied if the person is employed in connection with the election. At the same time, the rule is not fulfilled merely by showing that a person performed election‑related work; such work must be performed under a contract of employment.
In the present case the Court explained that when a candidate keeps a regular staff who normally perform personal services for him and receive regular salaries, the mere occurrence of an election does not automatically make those staff members employees “in connection with the election.” If, after the election is announced, the candidate occasionally asks those regular employees to perform some election‑related tasks while they continue their ordinary duties, their employment cannot be described as being in connection with the election. By contrast, if the candidate removes the employees from their usual responsibilities and assigns them to work full‑time or substantially full‑time on election matters, the nature of their employment changes and it may be said that their general employment has been converted into employment connected with the election. The Court noted that whether the candidate’s actions amount to merely requesting casual election work in addition to ordinary duties, or to suspending normal work and assigning election work instead, is a question of fact that must be decided in each individual case. Moreover, the Court stressed that Rule 118 requires the employment to be for payment. When staff keep performing their regular duties and only perform occasional election work, the salary they receive is payment for their ordinary employment, not for election work; consequently, Rule 118 does not apply, and such salary is not an election expense that must be disclosed in the return. However, if the staff receive an additional amount for the election work, that extra payment must be included in the election‑expense return, even though Rule 118 might still be inapplicable because there is no employment specifically for the election and the payment is not made in respect of such employment. Conversely, where the staff are taken off their normal duties and placed on election work, the salary paid to them can correctly be characterised as remuneration for work in connection with the election within the meaning of Rule 118. This construction of Rule 118 formed the basis on which the Court turned to the authorities cited before it.
The Court then referred to the authority of the Hartlepools case, in which the issue concerned Butler, who acted as the general secretary of Mr Furness, the returned candidate, and several clerks in a firm where Mr Furness exercised considerable influence. All of those individuals participated in the election. In that case, Phillimore J observed that if it could be established that, at the time of their employment, the individuals’ duties included performing election work whenever elections were held, a proportionate part of their salaries should be treated as election expenses. On the facts, however, he held that being an election agent was not part of Butler’s ordinary duties, and therefore none of his salary needed to be shown as an election expense. Pickford J, in a concurring judgment, reinforced this point by stating that Butler was paid his salary as private secretary and received nothing as an election agent. Counsel for the appellant relied on these observations, arguing that the Tribunal’s finding that twenty‑five men had been in the service of the candidate for a long period meant that there could be no question that they were employed for election work; consequently, they were neither election agents nor were the salaries paid to them to be treated as remuneration for employment in connection with the election. The Court indicated that it would now consider the effect of these observations on the present matters.
In the Hartlepools case, the issue concerned Butler, who acted as the general secretary to a returned candidate, and several clerks employed in a company where the candidate exercised considerable influence. Phillimore J. observed that if, at the time of a person’s employment, his duties expressly included work in elections whenever elections were held, then a proportionate part of his salary could be treated as an election expense. However, based on the facts before him, Phillimore J. concluded that serving as an election agent was not part of Butler’s regular duties under his standing employment, and therefore none of his salary needed to be recorded as an election expense. Pickford J., in a concurring judgment, reiterated this point by stating that Butler received his salary only in his capacity as private secretary and received no separate remuneration as an election agent. Counsel for the appellant relied on these observations and argued that, because the Tribunal had found that twenty‑five men had been in continuous service for a long period, there could be no question that they were employed for election‑related work; consequently, they were neither election agents nor entitled to have any portion of their salaries treated as payment for election employment. The appellant further noted that Phillimore J., when considering the effect of the company clerks participating in the election, had remarked that if a businessman employs his business clerks for election work that otherwise would be performed by hired clerks, he should include their salaries as part of his election expenses. Counsel for the respondent strongly relied upon this passage. Nevertheless, that point was not finally decided by Phillimore J., because the evidence on the matter was incomplete, and Pickford J. expressly reserved his opinion on the question.
The subsequent remarks of Sankey J. in the Borough of Oxford case introduced doubt as to the binding nature of Phillimore J.’s observations, making it uncertain how far those statements could be accepted as good law. Despite this uncertainty, the observations were later adopted in two decisions of election tribunals that were brought to the Court’s attention by Mr Chatterjee. In the Amritsar case (1), the tribunal observed that if any individual in the respondent’s service were “put on election work,” their wages for that period should have been shown in the election return. The phrase “put on election work” was interpreted to mean that the employee had been taken away from his normal duties to perform election‑related tasks. Because the case did not discuss the present question, its authority on the matter was considered limited. In the Farrukhabad case (3), the tribunal again quoted the passage from the Amritsar decision as well as Phillimore J.’s observations, and accordingly held that the salaries of Tilakdhari Singh, Kundan Singh and Drigpal Singh for the periods during which they worked in connection with the respondent’s election should have been reflected in the return. The finding in that case was that Tilakdhari Singh had worked exclusively for thirty days on election matters, and that Kundan Singh and Drigpal Singh appeared to have similarly devoted themselves to election work for specific periods. None of these precedents addressed the situation where individuals who were previously employed on other duties are later assigned election‑related work, and therefore they offered no definitive guidance on the present issue.
In the earlier decisions, it was observed that Tilakdhari Singh worked for thirty days in connection with the election and that Kundan Singh and Drigpal Singh appeared to have similarly devoted themselves to election work for certain periods. None of those cases considered what would amount to employment in connection with an election when the persons had previously been employed on other work, and consequently they shed no light on the question that arises in the present matter. The position may thus be summed up. For Rule 118 to apply, two conditions must be satisfied: first, the candidate must have employed a person in connection with an election; second, such employment must have been for payment. The authorities cited include [1924] Hammond’s Election Cases 83, [1910] 6 O’M. & H. 1 and [1927] Hammond’s Election Cases 349. Where a person has been in the employment of the candidate even prior to his election and his duties do not include work in the election, and he nevertheless takes part in the election, whether he is to be regarded as employed in connection with the election depends on the nature of the work he performs during the election. When the work that he does in the election is casual and is in addition to the normal work for which he has been employed, he is not within Rule l 18. However, if his election work is such that he could be regarded as having been taken out of his previous work and put on election work, then he would fall within Rule 118. Whether a person who has previously been employed by the candidate on other work should be held to have been employed in connection with the election is a question of fact to be decided on the evidence in each case.
In the present case, the finding was that twenty‑five persons belonging to the staff of the appellant had taken part in the election. It was established that those individuals had been in the service of the appellant for a long time and that their appointments were not colourable for election purposes. The inquiry also found that they received no additional payment for any work they might have performed in connection with the election. Nevertheless, there was no finding that, having regard to the work they actually performed, they must be regarded as having been relieved of their original duties and put on election work. In the absence of such a finding, it could not be held that Rule II 8 had been infringed. It was suggested that the Election Tribunal perhaps failed to appreciate the true legal position and therefore did not record the findings necessary for a decision on Rule 118. Although that omission could, in principle, be a ground for setting aside the order and referring the matter to another tribunal for fresh consideration, the Court did not consider that circumstances warranted such an order in the present case.
In this case, the Court observed that the material placed before it by the first respondent was overwhelmingly directed to the fact that the personnel employed by the appellant carried out election‑related activities either in the morning or in the evening, that is, beyond the regular hours of office work. The Court noted that this circumstance demonstrated that the work performed by the staff was in addition to their ordinary duties. On the basis of the principles previously articulated, the Court held that the staff could not be deemed to have been employed for the purpose of the election.
The Court further found that the first respondent did not appear to understand the true legal position under Rule 118. Moreover, the first respondent failed to produce the evidence necessary to enable a decision on the question whether Rule 118 had been violated. Because the burden of proof rested on the first respondent to establish an infringement of the Rule, the Court concluded that the first respondent had not met that burden and therefore must fail.
Accordingly, the Court allowed the appeal, set aside the order of the Election Tribunal, and dismissed the election petition that had been filed by the first respondent. Since each party succeeded on one issue and failed on another, the Court ordered that each party bear its own costs throughout the proceedings. The appeal was thus allowed.