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 section N Andley Rameshwar Nath and K C Puri for the appellant
NC 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 section 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 119a 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 26 of the Election Rules the General Clauses Act X of 1897 was applicable in interpreting them and that under section 10 of that Act the election petition was presented within the time allowed by Rule 119a
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 section 1237 of the Act
The Tribunal accordingly declared the election void under section 1002b of the Act
It also observed that on its finding aforesaid the appellant had incurred the disqualification enacted in sections 1401a and 1402 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 119a and should have been dismissed under section 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 section 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 119a 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 section 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 section 37 of the Act and that there would be no need for such a provision if section 10 of the General Clauses Act were intended generally to apply
This argument proceeds on an interpretation of section 10 of the General Clauses Act which in our opinionis 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 section 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 section 10 is not applicable to petitions falling within Rule 119
We are also unable to read in the proviso to section 37 of the Act an intention generally to exclude the operation of section 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 section 30 c of the Act and it is possible that the Legislature might have considered it doubtful whether section 30 c would having regard to its terms fall within section 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 section 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 vs Rajah of Faridkote 1 and after Independence became merged in the State of Pepsu
The 1 I894 LR 21 IA 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 Case1 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 28 2  56 57 218 course of his argument it is doubtfulhow 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 Case1 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 Case2 
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 Case3 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  1For Rule 118 to apply two conditions must be satisfied viz there should have been an employment by the candidate of a person in connection withan election and such employment should have been for payment
1 1924 Hammond s Election Cases 83
2 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
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


Summary:
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 section 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 section 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 and Borough of Oxford Case  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