# [1957] 1 S.C.R. 208

- **Citation:** [1957] 1 S.C.R. 208
- **Court:** Supreme Court of India
- **Decided:** 1955-05-16
- **Case number:** election. CrVIL APPELLATE JurusmcTION : Civil Appeal No. 132 of 1956
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1957-1-s-c-r-208-1335
- **Pages:** 13

## Headnote

208
SUPREME COURT REPORTS
[1957]
H. H. RAfA HARINDER SINGH
ti.
S. KAP.NAIL SINGH
(BHAGWATI, VENKATARAMA AYYAR, B. P. SINHA
and S. K. DAs JT.)
Election petition-Limitation for filing expirinz on a holida~
Petition filed next
day-Whether petition
time~barred-Candidate
putting his own servants to election work-Whether the servants are
employed for payment in connection with the election-Whether tAe
salaries of such servants are election expenses-Representation of tit~
People (Conduct of Elections and Election Petitions) Rules, 1951.
n·. 118 and 119-General Clauses Act (X of .1897), s. 10.
The last day for filing the election petition
was
a Sunday
and the day following was a public
holiday. The petition
was
presented on the next day after the public holiday.
Held, that s, JO of the
General Clauses Act was applicable
and that the petition was presented within time.
The appellant, who retains a large staff of subordinates, was
charged with employing 54 of them for purposes of the election in
violation of Rule 118, and with failure to include their salaries in
the return of his election expenses. The election tribunal found
that 25 of the old paid employees of the appellant took part in
his election campaign, that their number exceeded the statutory
number provided by Rule 118
and that consequently the 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 thcresult the tribunal set aside the election of the appellant :
Held, that where a person has been in the employment of a
candidate even prior to his election and his duties do not include
election work but he takes part in the election, and the work
which he does is casual and is in addition to his normal work,
he is not within Rule 118.
But if the work in connection with
the election is such that he could be regarded as having been
taken
out of his normal work and put on election work, then he
would be within Rule ll8.
Hartlepooles (:ase, 6 O'M. & H. l and Borough of Oxford Case,
7 O'M. & H. 49, referred to.
If the members of the staff of a cattdidate do
their normal
work and do casual work in connection with the election, the
payment of salary to them Would be payment on account of their
S.C.R.
SUPREME COURT REPORTS
2f'f)
employment as such members of the stall and not m connection with the election.
CrVIL
APPELLATE
JurusmcTION :
Civil
Appeal
No. 132 of 1956.
Appeal by special leave from the
judgment and
order dated May 16, 1955, of the Election Tribunal,
Rhatinda, in Election Petition No. 14 of 1954.
C. K. Daphtary,
Solicitor-General
of
India, /. B.
Dadachanji, S. N. Andley, Rameshwar Nath and K. C.
Pu.ri, for the appellant.
N. C. Chatterji, A. N. Sinha and Gopal Singh, for
respondent No. 1.
1956. December 20.
The Judgment of the
Court
was delivered by
VENKATARAMA
AIYAR J.-The
appellant
was one
of the candidates who stood ~or elec~ion to the Legis--
lative
Assembly of the Patiala and East Punjab States
Union from the Faridkot Constituency in the
General
Elections held in 1954.
He secured the largest number
of votes, and
was declared duly elected.
The result
was notified in the Official
Gazette on
February 27,
1954,
and
the
return of the election expenses was
published
therein OJ) May 2, 1954. On May 18, 1954,
the first respondent filed a petition under s. 81 of the
Representation of the
People Act No. XLIII of 1951,
hereinafter referred to as the
Act, and therein
he
prayed that the
election of
the appellant might
be
declared void on the ground that he and his agents
had committed various corrupt and illegal practices, of
which
particulars were given.
The
appellant filed a
written statement
denying
these
allegations.
He
therein raised the further
cont

## Text

208
SUPREME COURT REPORTS
[1957]
H. H. RAfA HARINDER SINGH
ti.
S. KAP.NAIL SINGH
(BHAGWATI, VENKATARAMA AYYAR, B. P. SINHA
and S. K. DAs JT.)
Election petition-Limitation for filing expirinz on a holida~
Petition filed next
day-Whether petition
time~barred-Candidate
putting his own servants to election work-Whether the servants are
employed for payment in connection with the election-Whether tAe
salaries of such servants are election expenses-Representation of tit~
People (Conduct of Elections and Election Petitions) Rules, 1951.
n·. 118 and 119-General Clauses Act (X of .1897), s. 10.
The last day for filing the election petition
was
a Sunday
and the day following was a public
holiday. The petition
was
presented on the next day after the public holiday.
Held, that s, JO of the
General Clauses Act was applicable
and that the petition was presented within time.
The appellant, who retains a large staff of subordinates, was
charged with employing 54 of them for purposes of the election in
violation of Rule 118, and with failure to include their salaries in
the return of his election expenses. The election tribunal found
that 25 of the old paid employees of the appellant took part in
his election campaign, that their number exceeded the statutory
number provided by Rule 118
and that consequently the 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 thcresult the tribunal set aside the election of the appellant :
Held, that where a person has been in the employment of a
candidate even prior to his election and his duties do not include
election work but he takes part in the election, and the work
which he does is casual and is in addition to his normal work,
he is not within Rule 118.
But if the work in connection with
the election is such that he could be regarded as having been
taken
out of his normal work and put on election work, then he
would be within Rule ll8.
Hartlepooles (:ase, 6 O'M. & H. l and Borough of Oxford Case,
7 O'M. & H. 49, referred to.
If the members of the staff of a cattdidate do
their normal
work and do casual work in connection with the election, the
payment of salary to them Would be payment on account of their
S.C.R.
SUPREME COURT REPORTS
2f'f)
employment as such members of the stall and not m connection with the election.
CrVIL
APPELLATE
JurusmcTION :
Civil
Appeal
No. 132 of 1956.
Appeal by special leave from the
judgment and
order dated May 16, 1955, of the Election Tribunal,
Rhatinda, in Election Petition No. 14 of 1954.
C. K. Daphtary,
Solicitor-General
of
India, /. B.
Dadachanji, S. N. Andley, Rameshwar Nath and K. C.
Pu.ri, for the appellant.
N. C. Chatterji, A. N. Sinha and Gopal Singh, for
respondent No. 1.
1956. December 20.
The Judgment of the
Court
was delivered by
VENKATARAMA
AIYAR J.-The
appellant
was one
of the candidates who stood ~or elec~ion to the Legis--
lative
Assembly of the Patiala and East Punjab States
Union from the Faridkot Constituency in the
General
Elections held in 1954.
He secured the largest number
of votes, and
was declared duly elected.
The result
was notified in the Official
Gazette on
February 27,
1954,
and
the
return of the election expenses was
published
therein OJ) May 2, 1954. On May 18, 1954,
the first respondent filed a petition under s. 81 of the
Representation of the
People Act No. XLIII of 1951,
hereinafter referred to as the
Act, and therein
he
prayed that the
election of
the appellant might
be
declared void on the ground that he and his agents
had committed various corrupt and illegal practices, of
which
particulars were given.
The
appellant filed a
written statement
denying
these
allegations.
He
therein raised the further
contention that the election
petition
had
not
been presented
within the time
limited by law, and was, therefore, liable to be dismissed.
/
Rule 119, which prescribes the
period
within
which
election petitions have to be filed, runs, so far as it is
material, as follows :
II9. "Time within which an election petition shall
be presented :-An election petition calling in question
an election may,-
1956
H.H.Raja
Harinder Singh
"·
S. K arnail Singh
1956
H. H.Raja
Harindtr Sinth
v.
S. K arnail Singh
Vtnkatarama
Arya' J.
210
SUPREME COURT REPORTS
[1957]
(a) in the case where such
petition 1s against a
returned candidate, be presented under section
81 at
any time after the date of publication of the name of
such cai1didate
under
section
67 but not later than
fourteen days from the date of publication of the notice
in the Official Gazette under rule 113 that the return
of election expenses of such candidate a~d the 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
pet.tt10n
on
May 18,
1954,
and
in
paragraph 6 stated as fo!lows :
"The offices were closed
on 16th
and 17tli; the
petition is, therefore, well within limitation."
On this, the Election Commission passed the following
order:
"The petition was filed on lS-5-1954.
But for the
fact that 16-5-1954 and
17-5-1954 were
holidays,
the
petition would have been time-barred. Admit."
The plea put forward by the appellant in his written
statement based on Rule 199(a) was that
whatever
might have been the reason therefor, tile fact was that
the petition had not been filed "not later than fourteen
days" from the publication of the return of the election
expenses. which was on May 2, 1954, and that it was,
therefore, not presented
within the
time prescribed.
The Tribunal overruled this plea on the ground that
under
Rule 2(6) of the
Ekction
Rules, the General
Clauses Act X of 1897 was applicable in interpreting
them, and that
under s. 10 of that
Act, the election
petition was presented within the time
allowed
by
Rule 119(a).
0'1 the merits, the Tribunal held that of
the grounds put forward in the
Election Petition, one
and only one had been substantiated, and
that
was
that the
appellant
had
employed for
payment,
m
connection with his election, 25 persons in addition
to
the number of persons
allowed under
Rule 118 read
along
with
Schedule VI
thereto, and had thereby
S.C.R.
Sl'PREME COURT REPORTS
211
•
committed the major corrupt practice
mentioned in
11. 123(7) of the Act. The Tribunal accordingly declared
the election void under s. 10'..\(2)(b) of the Act. It also
observed . that on its finding
aforesaid, the appellant
had incurred the disqualification enacted in ss. 140 (I) (a)
and 140(2) of the Act.
Against this decision, the
appellant has preferred this appeal by special leave.
On behalf of the appellant, two
contentions have
been pressed before us : ( 1) that
the
election
pet1t10n
was presented beyond the time prescribed by Rule
119(a), and should have been dismissed under s. 90 (4)
of the
Act;
and (2) that on the findings recorded by
the
Tribunal, the conclusion that Rule
118 had been
contravened does not follow and is erroneous.
The first question turns on the interpretation
of
s. 10 of the General Clauses Act, which is as follows :
"Where by any
Central
Act or Regulation
made
afte1
the
commencement
of this
Act,
any act
or
proceeding is directed or allowed to be dor.e or taken
in any Court or office on a certain day or within a
prescriled period, then if the Court or office is closed on
that dav or
the last day of the prescribed
period, the
act or proceeding shall be considered as done or taken
in due time if it is done or taken on the r;cxt day
afterwards on which the Court or office is open."
The contention of
Mr. Solicitor-Genera! on behalf of
the- appellant is that this section can apply on its own
terms only when the act
in
question is to be
done
"within a prescribed period", that under
Rule
119(a)
the petition has to be filed "not later than"
fourteen
d<iys, · 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 exoression "the time within which"
is used, as for example; Rule 123,
and he argues that
when a statute
uses two
diff crrnt
expressions,
they
must be construed as used in two different senses.
He
also points out that whenever the
Legislature intended
H.H.Rll}a
Harind"· Sin~~
v.
S. Kamai/ Singh
Venkatarama
Agar].
1956
H. H.Rajo
H an'ndtr Sintlt
y,
S. X atnail Sin1h
Y~nkatarama
A~ar J.
212
SUPREME COURT REPORTS
•
[ 1957]
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 dav on which the
court
or
office is open.
For that se~tion to appl)', therefore, all
that is requisite is that there should be a period prescribed, and that
period should expire on a holiday.
Now. it cannot be denied that the period of fourteen
days provided in
Rule 119 (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 cover~ge 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". Refen:nce in this connection should
he
made
to the heading of
Rule 119 which is, "Time
within
whieh an election
petition shall he presented".
We
entertain no doubt that the legisbture
has
used
both
S.C.R.
SUPREME COURT REPORTS
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
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 proviso ex abundanti cautela.
The
operation of such a beneficent
enactment
as s. 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 admittiIJ.g
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, tl1.:n: 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 tl1e 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 Farid.kote ( ), and, after
Independence,
became merged in the State of Pepsu.
The
(1) (1894) L. R. ~1 I. A. 171.
1g56
It. H. Raja
Harinder
v.
~. K arnail Sinzlt
I' enkatarama
A(far ].
H. H.Rajd
Harir.der Sin6h
v.
S. Karnail Singh
Vtnkatmanc
A{>'at J
214
SUPREME COURT REPORTS
[1957}
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 !:is election agent in connection
with an election."
Under
Schedule VI, a candidate for election may
employ for payment in connection with election (1) one
election agent, (2) one counting
agent,
(3) one clerk
and one messenger, ( 4) one polling agent
and
two
relief polling agents for each polling station
or where
a polling station has more than one polling booth, for
each polling booth and (5) one
messenger
of each
polling station, or for each polling
booth, if a polling
station has more th211 one booth. The finding
of the
Tribunal on this question is as follows :
" ... it
is clear that 25
persons
named
111
the
foregoing
paragraphs
took
part
in
the
election
campaign of respondent No. 1 apart from any duties
they may
have
performed as
polling agents.
Now
admittedly
all these
persons
are paid employees
of
respondent No. 1.
As their number exceeds the statutory number provided in Rule 118, respondent
No. 1
is undoubtedly
guilty of
a
major
corrupt
practice
under
sectiou
123 (7).
A question
however
arises
whether the fact that these
persons
were already
in
the employ of respondent No. 1 and were not specially
engaged for purposes
of election,
would
take
them
out of purview of Rule 118.
In our judgment it would
not."
Then, dealing with the question as to whether the
return of election expenses made by
tbe appellant was
false in that it <:Jid 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. 1 did utilise the services of 25 of his employees for
furthering
his dection
prospects.
Now there is no
evidence on the record to show that these employees
I
.S.C.R.
SUPREME COURT REPORTS
215
were engaged specifically for the purposes of election.
All of them had been in the service of respondent No. 1
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.
Chatterjee contends that it is not necessary
for
the
Rule
to
operate that there
should have been an
e;nployment specially for the purpose
of the ele:ction,
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 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 employ-
. ment. 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
7-76 S. C, India/59
1956
H.H. Raja
Harinder Singh
v.
S. Karnail Singh
Venkatarama
Aryar J.
1956
H.~H. Raja
H arinder Singh
v.
S. K amail Singh
vmkatarama
Agar :J.
216
.·:
SUPREME COURT REPORTS
[1957] ·
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 converti.ng their general
employment
into
one in connection
with
the
election.
It will be a
question of fact in each case whether what the
candi~
date 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 woulq 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- .;)n 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
;t could be said that that
work has been assigned to
:hem in supersession of
their normal
work, then the
salary paid to them could rightly be regarded as pay-.
ment for work in
connection
with election
within
Rule 118. That being o~r view on
the
construction of
Rule 118, we shall now proceed to
consider wha: the
position is, on the autnorities cited before us.
S.C.R.
SUPREME COURT REPORTS
217
In the Hartlepools Case ( 1 ), the question arose with
reference to one Butler who was the general secretary
of Mr. Furness, tl1e
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 ex.penses.
As put by Pickford, J ., in his
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
-0£ any employment in connection with the ,-election.
But then, ..:onsidering 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
-0ught to retur_n their salaries as part of his expenses."
Counsel for respondent strongly relies on these observations.
But then, the point was not actually
decided
by Phillimore, J ., as the evidence relating 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) [191c] 6 o· M. & H. I.
(2) 7 o· M. & H. 49, 56-57.
1956
H. H.Raja
Harinder Singh
v.
S. K arnail Singh
V enkatarama
AiJ>ar J.
1956
H.H.Raja
Harinder Singh
v.
S. K arnail Singh
V enkatarama
4'4!J1ar ].
218
SUPREME COURT REPORTS
[1957J
course of his argument,
it is
doubtful how far the
observations of
Phillimore, J., quoted above
could be
accepted as good law.
They were,
however,
adopted
in two decisions
of the
Election
Tribunals
of this
country,
to . which our
attention
was
invited
by
Mr. Chatterj~e;
In the Amritsar Case( ), the following observation
occurs:
"We also consider that if any man in the service
of the respondent were
put on election work, their
wages for the period should
have been shown in the
return. (See Hartlepools Case) ( )".
The words "put on election work" in this passage
suggest
that the employees
had been taken out of
their original work. As there is no discussion of the
present question, the authority of this decision is, in
any
event,
little.
In
Farrukhabad
Case( ), this
passage, as also the observations of Phillimore, J., were
quoted, and in accordance
therewith, it was held that
"the salaries of Tilakdhafi Singh, Kundan
Singh
and
Drigpal Singh for the period they worked in connection with the election of the respondent No. 1 should
have been
shown in the return".
It was found in
that case that
Tilakdhari
Singh worked
exclusively
for
30 day~ in
connection
with
the
election
and
Kundan
Singh and
Drigpal
Singh would appear to
have similarly
devoted
themselves to election
work
for certain periods. None of these cases has 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 thus be summed up :
(1) For Rule 118 to apply, two conditions must be
satisfied, viz., there should have been an employment
by the candidate
of a person in
connection with an
election, and such employment should have been for
payment.
(1) [1924] Hammond's Election Cases 83.
l•l [1910] 6 o· M. & H. 1.
(3) [1927) Hammond'! Election Ca.sea 349.
S.C.R.
SUPREME COURT REPORTS
219
(2) Where a person has been in the
employment
of the candidate even prior
to his
election
and his
duties do not include work in election
and he takes
part in election, whether he
is
to be regarded
as
employed in connection with the election will depend
on the nature of the work which he performs during
the election.
(3) When the work which he does in election is
.casual and is in addition to the normal work for which
he has been employed, he is not within Rule 118.
But .
if his work in connection with the election is such that
he could. be regarded as having been
taken out of his
previous work and put on election work, then he would
be within Rule 118.
(4) Whether a person who has
been previously
employed by the candidate on other
work should
be
held to have been employed in connection with election
is a question of fact to be decided on the evidence in
each case.
In the present case, the finding is that 25 persons
belonging to the staff of the appellant had taken part
in the election.
It has been found
that they had been
in the service of the appellant for a long time and that
their appointment was not colourable for election 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 anCI put on election work. In the
absence of such a finding, it cannot be held that
Rule
118 had been infringed.
It is possible that the Election
Tribunal did not appreciate the true legal position and
has in · consequence failed
to
record
the
findings
requisite for a decision on Rule 118, and that would be
a good ground on which we could, if the justice of the
case required it, set aside the order and direct the
matter to be heard afresh and· disposed of by another
Tribunal in accordance with law.
But we
do not
consider that this is a fit case for passing such an order.
The evidence adduced by
the first respondent is very
H.H.R~
Harinder Sinzh
v.
S. Karnas 1Sin1h
V1nkatarmrr.
Ai1ar ].
•
1956
H. H.Rqja
Harindd Singh
...
S. X arnail Singh
Ymkatarama
Ai1<11' ].
•
220
SUPREME COURT REPORTS
(1957}
largely to the effect that the appellant's men did election
work in the morning or in the evening, that is, out of
office hours. That shows that the work of the staff was in
addition to their normal duties, and on the principles
stated above, they could not be
held to have been
employed in
connection
with
the election.
As the
first respondent does not appear himself to have understood 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 that
Rule had been infringed.
In the result, this appeal is allowed, the order of the
Election Tribunal is set aside and the election petition
of the first respondent will stand
dismissed.
As the
parties have each succeeded on one issue and failed on
another, they will bear their own costs throughout.
A p~al allowed.
PUNJAB NATIONAL BANK Ltd.
v.
SRI RAM KANWAR, INDUSTRIAL TRIBUNAL,
DELHI.
(BHAGWATI,
VENKATARAMA
AIYAR,
B. P.
SINHA and
s. K. DAS JJ.)
Industrial Dispute-Travelling and halting allowances to the
workerl representatives-Order of the
Tribunal directing employer
payment of such expenses pending adjudication proceedings-fun's·
diction-Practice of the Industrial Courts-Costs-Discretion of the
Tribunal-lndtutrial Disputes Act, 1947 (XIV of 1947), s. 11(1)
(7)-Code of Civil Procedure (Act V of 1908), s. 35.
Sub-section
(7) of s. 11 of the Industrial Disputes Act, 1947,
as inserted by Act 48 of 1950, provides : "Subject to the rules
made under this Act, the costs of, and incidental to, any proceeding
before a Tribunal shall be in the discretion of that
Tribunal, and
the. Tribunal shall have full power to determine by and to whom
and to what extent and subject to what conditions, if aoy, such