Civil Appeal No 3951 NCE of1987
From the Judgment and Order dated 19111987 of the Kerala High Court in EP No 3 of 1987
KK Venugopal EMS Anam E Ahmad and VK Beeram for the Appellant
Dr YS Chitale MK Damodaran VJ Mathew Aseem Mehrotra and KMK Nair for the Respondents
The Judgment of the Court was delivered by SAWANT J
This is an appeal under Section 116A of the Representation of the People Act 1951 hereinafter referred to as the Act  against the judgment of the High COurt of Kerala in Election Petition No 3 of 1987 by which the election of the appellant to the Kerala Legislative Assembly from Mattancherry Constituency No 73 was declared void on the ground that the appellant had committed two corrupt practices within the meaning of Section 1234 of the Act
The admitted facts are that election to the Kerala Legislative Assembly from all the constituencies was held on March 23 1987
The main contest in almost all the constitu encies was between the United Democratic Front UDF con sisting of Congress I Kerala Congress Indian Union Muslim League IUML and others on the one hand and the Left Democratic Front LDF consisting of the Communist Party of India Marxist CPI M Revolutionary Socialist Party and others on the other
The appellant was the candidate of the LDF and the first respondent was the candidate of the UDF
In the said election the appellant was declared elected by a margin of 1873 votes over his nearest rival the first respondent
On May 8 1987 the first respondent filed an elec tion petition claiming a declaration that the appellant s election was void and that he was entitled to be declared duly elected from the said constituency
In support of the petition the first respondent alleged various corrupt practices on the part of the appellant
However the High Court negatived all the said corrupt practices except two viz i printing and publication on March 22 1987 a day prior to the election pamphlets containing a news item in daily Malayala Manorama dated May 22 1983 and ii publication of a wall poster both maligning the personal character and conduct of the first respondent
The High Court held that both these acts amounted to corrupt prac tices within the meaning of Section 1234 of the Act and were sufficient to 726 void the election
The pamphlet containing the reprint of the daily Malayala Manorama was marked as exhibit P 1 and two photographs of the wall poster were marked as Exs
P 14 and P 15 before the High Court and would be referred to herein after as such
exhibit P 14 is the close up and exhibit P 15 is the distant photograph of the same wall poster 4
Before we refer to the rival contentions and the material on record it would be convenient if we reproduce here the contents of exhibit P 1 and Exs
P 14 and P 15 to understand the allegations made in the said documents
exhibit P 1 is a reprint of a page of the issue of 22nd May 1983 of a daily newspaper Malayala Manorama
It contains the names and the photographs of four men who were admit tedly murdered in May 1983
It also carries two other photo graphs one showing two killed bodies lying and the other showing the front part of the court building where allegedly all the four were killed
It also carries a photograph of the appellant with his election symbol which was ladder  and a photograph of the then Prime Minister Rajiv Gandhi
Apart from the contents of the said newspaper as they ap peared in the said old issue it carries additions on the left hand the English translation of which is as follows ELECT ZAKHARIA THE UNITED FRONT CANDIDATE MATTANCHERRY
On March 23rd a decisive election is taking place in our State
We wish to have a Government who will protect life and property of the people
In the light of past expe rience the only front acquired legitimate claim to give protection is the United Democratic Front under the leader ship of Congress I
Marxist Party has only created insecu rity in the country
X X X X X The Marxist Comrades who create lawlessness and commit murders while in power and out of power is a chal lenge to peace loving inhabitants of Mattancherry
Mattan cherry is a constituency which has witnessed terrible cruel ties of the Marxists
The Mattancherry Town once the centre of commerce today became equal to a grave 727 yard only due to violent activities of the Marxist people
The wounds created by their cruelties are always unhealed
They need not be detailed by one
X X X X X You may remember only the cruel murder that shocked Mattancherry in 1983
Four youngsters were cut to death in the road in broad day light
The relevant portion of the Malayala Manorama which published that news is given herewith as such everybody knows the hands behind that murder
The Marxist leader arrested is also known
X X X X X Dear sisters brothers you may think a while
Should we have the rule of the Marxist terrorists
We believe that the people of Mattancherry who wish peaceful life in the country will defeat Marxists
X X X X X Believers in democracy should be specially careful not to split their votes
It is possible to defeat Marxists only through unity of the believers in democracy
That is why the Indian National Congress lead by Shri Rajiv Gandhi  the stalvert of democratic Bharath is giving leadership to the democratic front
It is the necessity of peace lovers that United Democratic Front should win for law and order and stable administration
Therefore it is humbly requested that MJ Zakharia may be elected with big majority casting votes to his Ladder Symbol
Photo of Vote Democratic Front Photo of candidate to avoid Marxist Rule Rajiv Gandhi MJ Zakharia of Terror Constituency Election Committee Give Strength United Democratic Front to Rajiv Gandhi s Mattancherry hands 728 VOTE FOR UNITED DEMOCRATIC FRONT CANDIDATE MJ ZAKHARIA IN LADDER SYMBOL Printed at Veekshanam
 The High Court has found that the following statement in paragraph 3 above viz everybody knows the hands behind that murder
The Marxist leader arrested is also known was in relation to the personal characterconduct of the first respondent
P 14 and P 15 are the photographs as stated earlier of the poster pasted on a wall with the pamphlet exhibit P 1 pasted on its left side
The contents of the wall poster are as follows Defeat murderer TM Mohammed who murdered four Christian brothers at Fort Cochin
Our Symbol
 The symbol is the ladder
This poster directly accused the first respondent as being murderer of the said four killed persons and requested the voters to vote for the appellant
As regards exhibit P 1 there is no mention of the first respondent directly by his name anywhere in the poster
However the first respondent has alleged that there is an innuendo by which he is projected there as the murderer of the four victims
The High Court has accepted that the first respondent is referred to in the said pamphlet by innuendo
The High Court has also found that the pamphlets were got printed by one Latif who was appellant s agent on behalf of his Election Committee and at the instance of and with the consent and connivance of the appellant and his election agent and was distributed by them among the electors knowing the imputation to be false and calculated to affect the prospectus of his election
As regards Exs
P 14 and P 15 the High Court has recorded a finding that the said wall poster was pasted on a wall at the instance and with the consent of the appellant s election agent
Thus the High Court has recorded a finding that the first respondent had proved that the appellant was guilty of the corrupt prac tices within the meaning of Section 1234 of the Act
Before we proceed to discuss the relevant evidence on record it is necessary to understand the correct posi tion of law on the subject
The corrupt practices and elec toral offences are mentioned in Part 7 of the Act
Chapter I of the said Part deals with corrupt practices and contains Section 123 whereas Chapter III thereof enumerates electoral offences
and penalties therefore and contains Sections 125 to 136
729 Section 1234 with which alone we are concerned in the present appeal reads as follows 1234 The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or with drawal of any candidate being a statement reasonably calculated to prejudice the prospectus of that candidate s election
 It is obvious from the aforesaid provisions of Section 1234 that for a publication to constitute the corrupt practice a it must be a statement of fact by i a candi date or ii his agent or iii any other person with the consent of the candidate or his election agent b the statement must be false or the candidate must believe it to be false or should not believe it to be true c the state ment should refer to the personal character and conduct of another candidate and d that it must be reasonably calcu lated to prejudice the prospects of that other candidate s election
Explanation 1 to Section 123 states that in that Section the expression agent includes election agent a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate
The expression election agent is defined in Section 40 and is accorded a special status of almost an alter ego of the candidate so much so that whatever is done by the election agent or with his consent is deemed to have been done by the candidate himself whether it is with the candidate s consent or not
It is further sufficient to note that the election agent is empowered to discharge almost all the functions that a candidate can himself perform
The further provisions of the Act which are necessary to be noted are those of sub sections 1b 1d and 2 of Section 100
They read as under 100
Grounds for declaring election to be void 1 Subject to the provisions of sub section 2 if the High Court is of opinion a   730 b that any corrupt practice has been committed by a re turned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent or c   d that the result of the election in so far as it con cerns a returned candidate has been materially affected i   ii by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or iii         the High Court shall declare the election of the returned candidate to be void
2 If in the opinion of the High Court a returned candi date has been guilty by an agent other than his election agent of any corrupt practice but the High Court is satis fied a         c         d         then the High Court may decide that the election of the returned candidate is not void
The aforesaid provisions of Section 100 show that where the corrupt practice is committed not by the candidate or his election agent or any other person with the consent of the candidate or his election agent but by an agent other than the election agent and in his interest and the corrupt practice by such agent has materially affected the result of his election the High Court is enjoined to declare the election of the candidate to be void
Sub section 2 of Section 100 enacts a rider to sub section 1 thereof and states that even if the 731 agent has committed the corrupt practice in the interest of the returned candidate if the High Court is satisfied that the said corrupt practice was not committed by the candidate or his election agent and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent and that the candidate and his election agent took all reasonable means for pre venting the commission of the corrupt practice at the elec tion and that in all other respects the election was free from any corrupt practice the part of the candidate or any of his agents the High Court may decide that the election of the returned candidate is not void
With this statement of law in mind we may now refer to the two corrupt practices alleged to have been committed by the appellant
We will first deal with exhibit P 1 the print ing publication and distribution of which is held to have been one of the two corrupt practices committed by the appellant s agent at his instance and with his consent and connivance as well as of his election agent
As far as the petition is concerned the relevant averments with regard to exhibit P 1 are as follows 13
Another important aspect which will amount to corrupt practice is the publication of pamphlets by the candidate his agents and his workers with his consent and knowledge
Malayala Manorama dated 2351983 was reported by the candidate at the expenses of the first respondent
This re printing is intended to propagate false statements which the candidate his agents and as workers  
X X X X X 19
It is clear from these that the reprinting of Malayala Manorama by the candidate was with a view to create a false impression among the electorate that the petitioner is a murderer and hence the electorate shall not vote in favour of him
This was done with a mala fide intention to propa gate false news among the electorate
X X X X X 46
Malayala Manorama daily dated 22nd May 1983 was re printed with certain additions and also with photographs 732 of Prime Minister and the candidate with the candidate s symbol
This was reprinted from the Veekshanam Press at Ernakulam and got printed by the Election Committee of the first respondent  47
Annexure I reprinted Malayala Manorama was widely dis tributed in the constituency
It was distributed on 22nd March 1987
March 22 1987 was a Sunday and May 1983 was also a Sunday
The petitioner is reliably informed that about 25000 copies of Annexure I were printed and those copies of reprinted Malayala Manorama were distributed throughout the constituency
 In paragraphs 48 to 53 of the petition the first re spondent has proceeded to give the names of the persons who distributed the said pamphlet in different divisions of the constituency and of the persons whom he was going to examine as witnesses to prove the same
In paragraph 54 he has made further averments in connection with the said pamphlet as follows Annexure was really the reproduction of Malayala Manorama daily dated 2251983
Since a news item regarding the murder of 4 persons was reported in the daily mentioned above to mislead the electorate the Malayala Manorama printed and published on 2251983 was reprinted   9
It will be apparent from these averments in the petition that although the first respondent has stated in his petition that the pamphlet was printed and distributed with a view to create a false impression among the elector ate that he was a murderer he has not stated as to why it will create such an impression among the electorate
It was necessary for him to state so in the petition because admit tedly the pamphlet nowhere names him as a murderer of the said four victims
What was however argued by Dr Chitale on behalf of the first respondent was that the statements in the pamphlet viz everybody knows the hands behind that murder
The Marxist leader arrested also is known were a clear and a direct reference to the first respondent be cause it was an admitted fact that the first respondent was arrested for an offence of harbouring the accused in that murder case
There was also a protest meeting held in that connection and the appellant who was his agent at that time had also addressed the said meeting condemning his arrest
According to Dr Chitale therefore 733 the arrest of the first respondent though for the offence of harbouring the murderers was in connection with the murder and the statement in the pamphlet that The Marxist leader arrested is also known read with the earlier statement that Everybody knows the hands behind that murder was clearly calculated to create an impression in the mind of the elec torate that it was the first respondent who was the murder er
Admittedly therefore even according to Dr Chitale these were the only two statements which could be said to have had a reference to the first respondent as the murderer and there was no direct reference to or implication of the first respondent as the murderer of the said four victims
In other words the first respondent even in his petition had relied upon an innuendo and the innuendo was based upon the fact that firstly the first respondent was a Marxist leader and secondly he was arrested for harbouring the murderers
However in the petition no averment is made anywhere that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the elector ate was likely to construe the said two statements as accus ing him as the murderer
The facts andor particulars which spell out the innuendo where one is alleged or relied upon to constitute a corrupt practice are themselves material facts and it is necessary to state them in the petition in view of the mandatory provisions of Section 831 of the Act
The provi sions of Section 831 are as follows 83
Contents of petition 1 An election petition a shall contain a concise statement of the material facts on which the petitioner relies b shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 5 of 1908 for the verification of pleadings Provided that where the petitioner alleges any corrupt practice the petitioner shall also be accompanied by an affidavit in the prescribed form in support of the allega 734 tion of such corrupt practice and the particulars thereof
 It is clear from the provisions of both clauses a and b of the Section that election petition has to contain i a concise statement of the material facts on which the petitioner relies and also ii give full particulars of any corrupt practice that the petitioner alleges
In a case therefore where what constitutes a corrupt practice is not a bare statementstatements published but those which are not published and yet are implied a statement of material facts will not be complete without the statement of such implicit facts
In other words without the statement of the said facts the statement will not be a statement of materi al facts within the meaning of the said Section
This provi sion of law is indisputable
Much of the debate that took place before us cen tered round this aspect which has assumed all importance in the context of the first charge of the corrupt practice
Various authorities were cited on both sides in support of the respective contentions on the subject
We may briefly refer to them to the extent they are relevant for our pur pose
In Hough vs London Express Newspaper Ltd it was a case of an action for an alleged libel pub lished in the newspaper
The plaintiff Florence Sarah Hough married Frank Hough in 1933 and lived with him in Battersea as his wife and had one child from him
In Febru ary 1936 he deserted her and in June 1936 he was ordered to pay maintenance for the child
He was known at Battersea where he lived at the time of the order and after the desertion also he continued to live there
He acquired some notoriety as a boxer and the plaintiff became known in the district as his wife
On December 22 1937 an article appeared in Daily Express a newspaper owned by the defend ants containing the words Frank Hough s curly headed wife sees every fight
I should be in more suspense at home
 she says I always get nervous when he gets in the ring although I know he won t get hurt
Nothing puts him off his food
He always eats a cooked meal last thing at night however late it is when he gets in
 From the description given of the wife it was obvious to those who knew the wife that another person was referred to
Hence the plaintiff brought an action for libel alleging that the words by innuendo meant that she was falsely repre senting herself to be the wife and that she was 735 an unmarried woman who had cohabited with and had children by the boxer
On these facts the Court of Appeal held i the words were defamatory as reasonable persons knowing the circumstances would understand the words in defamatory sense ii it was not necessary for the plaintiff to prove that one or more persons understood the words in a defamatory sense
1t is sufficient that reasonable persons might so understand them
The decision therefore shows that it is not necessary that a person publishing a defamatory state ment should intend that the statement should refer to the defamed person
It is sufficient that reasonable persons should understand it to refer to him or her
The words need not be defamatory in the primary sense
They are actionable if the existence of certain circumstances makes it reasona ble that persons to whom those circumstances are known might understand them in a defamatory sense
It is not necessary to prove that in fact persons with such knowledge did so understand them
What is necessary however is that the special circumstances which are known to others and by which they are likely to understand the reference as being one to that defamed persons must be pleaded and proved
In Fullam vs
Newscastle Chronicle and Journal Ltd  Anr
 the facts were that prior to 1962 the plaintiff was a Roman Catholic priest and a curate in the dioceses of Salford near Manchester
In 1962 he gave up the priesthood and became a schoolteacher
In 1964 he married and in 1965 he and his wife had their first child
The plaintiff took a teaching post at Wakefield
South Yorkshire where he lived
In July 1973 he applied for the deputy headmastership at a school in Redcar on Teesside which was about 80 miles north of Wakefield and he was appointed to that post
There had been a controversy about the previous deputy headmaster
On 21st July a local news paper which circulated in the districts of Teesside and Newscastle Upon Tyne but not in the Wakefield area pub lished an article about the plaintiff s appointment which stated inter alia that he was a former Catholic priest that he had left his parish in the Salford diocese and later had married and that it was claimed by the general secretary of the National Association of School masters that he went off very suddenly from the parish where he was curate about seven years ago 
 The plaintiff pleaded in his statement of claim that the words in the article meant and would be understood to mean that he a had lathered a child whilst still a priest serving in a parish b had lathered anillegitimate child c had wrongly continued to serve as a priest after his marriage d had wrongly withheld the fact of his marriage from his eclesiastical 736 superiors and parishioners and accordingly was unfit to be deputy headmaster of the school at Redcar
Pursuant to RSC Order 82 rule 31 the plaintiff gave as the particulars of the facts on which he relied in support of innuendoes i that he had married on 15th February 1964 and ii that his eldest child had been born in May 1965
He did not give particulars of the persons who knew one or the other of those extrinsic facts and who therefore having regard to the statement in the article that he had left the parish suddenly seven years ago might have derived from the article the imputations alleged in a to d of para 5 of the statement of claim
The defendants applied to strike out para 5 of the claim on the ground that it disclosed no reasonable cause of action
The Court of Appeal held as follows i Although it was not the usual practice in libel actions to plead particular acts of publication if the words com plained of had been published in a newspaper in cases where the action was based on a legal or true  innuendo and the ordinary readers of the paper would not have derived from the words complained of the innuendo alleged the plaintiff was required under RSC Order 18 rule 7I and Order 82 rule 3I to particularise not only the special circum stances which were alleged to give rise to the innuendo but also the identity of the readers of the paper who were alleged to know of those special circumstances since the identity of those readers was a material fact on which the plaintiff relied in support of his cause of action
ii Since the only readers of the article who could have concluded that the plaintiff had lathered a child or married while he was still a priest were readers who new either the date of birth of his eldest child or the date of his mar riage but did not know both those facts and such readers would be rare and exceptional having regard in particular to the area where the paper circulated the plaintiff should be ordered to give particulars identifying those readers
Accordingly unless such particulars were given para 5 of the statement of claim should be struck out
 While discussing the law on the subject Lord Denning MR observed as follows The essence of libel is the publication of written words to 737 a person or persons by whom they would be reasonably under stood to be defamatory of the plaintiff
But those words may give rise to two separate and distinct causes of action  
First the cause of action based on a popular innuendo
If the plaintiff relies on the natural and ordi nary meaning of the words he must in his statement of claim satisfy the person or persons to whom they were published save in the case of newspaper or periodical which is pub lished to the world at large when the persons are so numer ous as to go without saying
Secondly the cause of action based on a legal innuendo
If the plaintiff relies on some special circumstances which convey some particular person or persons knowing the circum stances a special defamatory meaning other than the natural and ordinary meaning of the words when he must in his state ment of claim specify the particular person or persons to whom they were published and the special circumstances known to that person or persons for the simple reason that these are the material facts on which he relies and must rely for this cause of action
It comes straight within the general rule of pleading contained in RSC Order 82 rule 3
In the second cause of action there is no exception in the case of a newspaper because the words would not be so understood by the world at large but only by the particular person or persons who know the special circumstances emphasis supplied Lord Denning further observed that this rule of pleading was not observed in Cassidy vs Daily Mirror Newspapers or in Hough vs London Express Newspaper Ltd supra because the defendant did not ask for particu lars
After referring to paragraph 5 of the plaint he then observed that paragraph 5 was utterly inadequate as it stood and that no ordinary reader could ever derive those imputa tions about fathering a child etc
from the article
It would have to be some particular person with knowledge of some special circumstances
He further observed that the pleading in that case told the circumstances viz the marriage in 1964 and the birth of a son in 1965 but it did not tell as to who were the persons who knew of the circum stances and derived the imputations from the article
In the same case Scarman LJ stated that it was obvious that a 738 material fact in such a cause of action was that the persons to whom the words were published knew the extrinsic facts
In principle therefore their knowledge being a material fact should be pleaded
He further observed that there may be a case where the facts may be very well  known in the area of the newspaper distribution in which even it would suffice to plead merely that the plaintiff would rely on inference that some of the newspaper readers must have been aware of the facts which are said to give rise to the innu endo
But that was not the case in that action and there fore justice required that the plaintiff should fully particularise the publication relied on so that the defend ants may understand the nature of the case they have to make
These two decisions however are in libel action and not in election matters
In Sheopat Singh vs Ram Pratap   one of the questions that directly arose for consideration was of the burden of proving the ingredients of the corrupt practice under Section 1234
The facts were that an alle gation was made against the personal character and conduct of one of the candidates in the election viz that a cinema theatre of Rs7 lakhs in Ganganagar was the barkat of the cement of the Rajasthan Canal
The candidate concerned was at the crucial time the Minister in charge of the Rajas than Canal Project
During the election a cinema theatre known as Adarsh Theatre was being put up at Ganganagar
There was no dispute that the theatre referred to in the poster was the said Adarsh Theatre and it belonged to the concerned candidate and his sons
In that context there fore it was manifest that the poster meant to convey the idea that the candidate had misappropriated the cement of the Rajasthan Canal of which he was in charge and built a big theatre in the name of his sons
Hence it was a clear reflection on the candidate s personal character and con duct
The argument advanced on behalf of the returned candi date was that there was no evidence in the case that the said statement was one reasonably calculated to prejudice the prospects of the election of the candidate against whom the said statement was meant viz Ramchander Chowdhary
In that connection it was argued that if the voters did not know that the cinema theatre which was being built in Ganga nagar belonged to Ramchander Chowdhary or his sons the statement concerned would not deflect the voters from voting in favour of Chowdhary
It was also argued that there was no evidence in the case that all or any of the voters knew the fact that the cinema theatre belonged to Chowdhary or his sons
This Court stated in that case that they were not dealing with a libel action and therefore the 739 cases cited at the Bar on libel action such as Nevill vs Fine Art and General Insurance Co Ltd and the Capital and Counties Bank Ltd vs George Henty  Sons had no relevance for determining the ques tion under Section 1234 of the Act
The only question is whether the statement in question was reasonably calculated to prejudice the prospects of Chowdhary s election
The Court then pointed out that on behalf of the returned candi date it was not contended either before the Election Tribu nal or before the High Court that the voters had no knowl edge of the fact that the cinema theatre at Ganganagar belonged to Chowdhary or his sons
The Court further ob served that apart from that the object with which the state ment was made was the crucial test
Since it was proved that Ganganagar cinema theatre belonged to Chowdhary s sons and that Chowdhary was the Minister in charge of the Rajasthan Canal and he was also the only effective candidate against the returned candidate who was the appellant in that case the appellant s intention in making that statement was obvious and that was to attack the personal character of Chowdhary in order to prejudice his prospects in election
The appellant must have reasonably calculated that the voters or at any rate the voters in and about the locality where the cinema theatre was being put up had knowledge or the tact that It was being constructed by the Minister of his sons
It cannot also be said that when a big cinema theatre at a cost of Rs7 lakhs was being put up in Gangana gar the voters in and about that place would not have known about the ownership of that building
Hence the fact that the building was brought in for attacking the personal character of Chowdhary merely indicated that the appellant knew that the voters had knowledge of its ownership and expected that it would create the impression which it mani festly indicated to convey
Hence this Court held that the High Court s finding that the statement was reasonably calculated to prejudice Chowdhary s prospects in election could not be said to be unsupported by evidence or by the
admitted facts placed before the High Court
It was a rea sonable inference from the facts found by the High  Court
It must be said that in this case the question whether it was necessary for the election petitioner to state in the petition the extrinsic facts which would connect the person concerned with the libelous statement was not raised and therefore was not answered
The only question which was agitated was whether the voters without knowing that the theatre belonged to the defamed candidate would be deflected from voting and this Court upholding the finding of the High Court observed that it was not contended either before the Election 740 Tribunal or before the High Court that the voters had no knowledge of the fact that the cinema theatre belonged to Chowdhary or his sons
Secondly it was held that whether the voters had such knowledge was immaterial since what was crucial for the corrupt practice under Section 1234 of the Act is the object with which it was made
Since the election petitioner had proved that the theatre belonged to Chowd hary s sons and that Chowdhary was the Minister in charge of the Rajasthan Canal it must be held that the returned candidate had reasonably calculated that the voters or at any rate the voters in and about the locality where the theatre was being put up had knowledge of the fact that it was being constructed by the Minister or his sons and that such extrinsic facts could not have been unknown to the voters
This decision may be construed as laying down that even if the petition does not state the extrinsic facts but the electorate is well aware of them the petitioner can lead evidence and prove them
Whether the petition in that case did or did not state the extrinsic facts is not clear from the decision
It is also not clear from the judgment whether any evidence was led that in fact the voters had understood the said statement to refer to Chowdhary
On the other hand one of the observations made in the judgment shows that the proof of such an impression of the voters is dispensable for the purpose of establishing a corrupt prac tice under Section 1234 of the Act
That observation is as follows To be within the mischief of sub section 4 of Section 123 of the Act such a statement shall satisfy another test namely it shall be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it is made
The word calculated means de signed it denotes more than mere likelihood and imports a design to affect voters
It connotes a subjective element though the actual effect of
the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect
The emphasis is on the calculated effect not on the actual result though the latter proves the former
But what is important to notice is that it is not necessary to establish by positive evidence that the voters with the knowledge of the contents of the statement were deflected from voting for the candidate against whom the statement was made
 In Kumara Nand vs Brijmohan Lal Sharma  the 741 facts were that the complaining candidate was called the greatest of the thieves in a poem recited at a public meeting in the presence of the returned candidate
It was held that it was not a mere expression of opinion but was a statement of fact
It was further held that in such circum stances particulars are not necessary before a bald state ment with respect to personal character or conduct of the candidate can be said to be a statement of fact
It was also observed that whether particulars are necessary will depend on the facts and circumstances of each case
We may state here that the discussion in that case mainly centered around the question whether the particular statement was a state ment of fact or an expression of opinion
In Habib Bhai vs Pyarelal  Ors
 AIR 1964 MP 62 dealing with the question of innuendo the High Court referred to certain English cases on the point and held that in view of these decisions it is obvious that an innuendo is simply an averment that such a one means such a particular person or that such a thing means such a particular thing and when coupled with the introductory matter it is an averment of the whole connected proposition by which the charge may be brought home to the person concerned
The whole attempt of the learned counsel for the appellant before us was to suggest that the words though not per se defamatory of the third respondent were definitely so in their secondary meaning read in the context of circumstances
But as no attempt was made in the pleadings to plead the extrinsic facts to show by those facts as to how the allegations contained in annexure I were related to the third respond ents we are of opinion that it must he held that by refer ring to any possible meaning of the words used no imputa tion could be read in the words as against him
 It can therefore be said that in this case the Court had insisted that it was necessary to plead the extrinsic facts to show all those facts as to how allegations were related to the defamed or complaining candidate
In Manmohan Kalia vs Yash  Ors  which is more or less on par with the present case it was alleged by the election petitioner that the returned candidate through speeches either made by him or his friends had carried on a vilifying campaign to show that the complaining candidate was directly connected with the murder of one Asa Ram a Harijan and one of the supporters of Congress I Party so as to wean away the votes of the harijans of the locality and members of the Congress I Party
The High Court had disbelieved oral evidence and found no nexus with the news items etc and had 742 dismissed the petition
This Court held that where the doctrine of innuendo is applied it must be clearly proved that the defamatory allegation was made in respect of a person though not named yet so fully described that the allegation would refer to that person and that person alone
Innuendo cannot be proved merely by inferential evidence which may be capable of two possibilities
On the facts the Court held that after having gone through the evidence statement of witnesses and the documents placed before the Court it was difficult to find any close connection or direct link between the imputations made against the appel lant in 1978 and those made in 1980
In none of the docu ments produced by the complaining candidate which referred to the activities of the returned candidate there was the slightest possibility that the appellant had anything to do with the murder of Asa Ram
The Court further observed as follows It is now well settled by several authorities of the Su preme Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election which will adversely affect the electoral process
In W Hay  Ors
vs Aswini Kumar Samanta AIR 1958 Cal
269 a Division Bench of the Calcutta High Court held that it is well settled that in a libel action the ordinary defam atory words must be set out in the plaint
Where the words are per se or prima facie defamatory only the words need be set out
Wherever the defamatory sense is not apparent on the face of the words the defamatory meaning or as it is technically known in law the innuendo must also be set out and stated in clear and specific terms
Where again the offending words would be defamatory only in the particular context in which they were used uttered or published it is necessary also to set out except where as in England the law is or has been made expressly otherwise the offending context colloquium in the plaint and to state or ever further that this context or the circumstances constituting the same were known to the persons to whom the words were published or at least that they understood the words in the defamatory sense
In the absence of these necessary averments the plaint would be liable to be rejected on the ground that it does not disclose any cause of action
743 13
What exactly should be pleaded in an action for defamation has been stated also in Halsbury s Laws of Eng land Vol
28 4th ed
In paragraphs 174 175 176 177 and 178 of the said Volume we have discussion with regard to natural and ordinary meaning of the words complained of and about the innuendo and the facts and matters supporting innuendo which should be pleaded and proved
It is stated there that in drafting a statement of claim in libel or slander it is necessary to distinguish between cases in which the words complained of are alleged to be defamatory in their natural and ordinary meaning whether the literal or the inferential meaning and those in which the defamato ry meaning is a secondary meaning derived from extrinsic or special facts or matters so that a legal or true innuendo must be pleaded
If it is claimed that the words are defama tory in their natural and ordinary meaning and the words bear only one literal meaning which is clear and explicit it is not necessary to plead the meaning in the statement of claim
However if the words are reasonably capable of bearing more than one literal meaning or if the defamatory meaning relied on is inferential a false or popular innuendo it is desirable and may even be necessary to plead the defamatory meaning or meanings
Where the plain tiff wishes to claim that the words complained of were understood to be defamatory in a secondary or extended meaning by those persons having knowledge of some special facts or matters such a meaning constitutes a separate cause of action and the same should be pleaded expressly in a separate paragraph in the statement of claim emphasis supplied
Particulars must be given of the facts and mat ters on which the plaintiff relies in support of any second ary or extended defamatory meaning which it is decided to plead
These special facts or matters may be extrinsic to the words used or there may be some special meaning of the words themselves
The plaintiff should plead that particular words bore the innuendo meaning
In Gatley on Libel and Slander 8th ed in para graph 95 while dealing with True and False Innuendoes it is observed that in distinguishing between the ordinary and natural meaning and the innuendo meaning or words the substantive law cannot be separated from the requirements of pleadings and the rules of evidence
When the plaintiff wishes to rely on any special facts as giving the words a defamatory or any particular defamatory meaning he must plead and prove such facts including where necessary any special knowledge possessed by those to whom the words are published which gives the words that meaning and must set out the meaning in his pleading
Where words are not defama tory in their natural and ordinary mean 744 ing but are so only by reason of extrinsic circumstances the plaintiff must plead also those circumstances and the precise defamatory meaning conveyed by them to those persons to whom the words were published
Otherwise the statement of claim will disclose no cause of action
Such an innuendo is required to be pleaded whenever the plaintiff relies on any extrinsic facts as giving to the words the meaning he alleges
The plaintiff must plead the words the extrinsic facts and knowledge of those facts on the part of one or more of those persons to whom the words were published
He can also give evidence of any facts and circumstances which he has pleaded and which would lead reasonable persons to infer that the words were understood in that meaning provid ed such facts or circumstances were known to those persons to whom the words were published
The evidence required is the evidence of special facts causing the words to have a meaning revealed to those who knew the special facts
Street in his treatise on Torts 6th ed at page 294 has stated that where nothing is alleged to give an extended meaning words must be construed by the judge in their ordinary and natural meaning
The whole of the statement must be looked at not merely that part on which the plain tiff relies as being defamatory although of course it may be relevant to take account of the greater importance of some part of a statement eg the headlines of an article in a newspaper
There may be circumstances where the plain tiff alleges that the statement is defamatory because spe cific facts known to the reader give to the statement a meaning other than or additional to its ordinary meaning this is known as a true or legal innuendo
In that case the plaintiff must plead and prove such facts for the defendant is entitled to know that meaning of the statement on which the plaintiff relies so that he is able to argue either that the statement in that meaning is not defamatory or that it is then true of the plaintiff
There is a third possibility
The words may have a meaning beyond their literal meaning which is inherent in them and arises by inference or impli cation this is sometimes known as the false innuendo
The plaintiff has to plead separately any such false innuendo
A false innuendo differs from a true innuendo in that the pleader of a false innuendo does not set out any extrinsic facts in support of his plea
Duncan  Neil in their book on defamation 1978 ed while referring to innuendo on page 17 onwards have stated that the law of defamation recognises that a some words have technical or slang meaning or meanings which depend on some special knowledge possessed not by the general public but by a limited number of persons 745 and b that ordinary words may on occasions bear some special meaning other than their natural and ordinary mean ing because of certain extrinsic facts and circumstances
The plaintiff who seeks to refer to an innuendo meaning has to plead and prove the facts and circumstances which give words a special meaning 
He has also to prove that the words were published to one or more persons who knew these facts or circumstances or where appropriate the meaning of the technical terms etc
While referring to the test where identification depends on extrinsic facts the learned authors have stated that where identification is in issue the matter can sometimes be decided by construing the words themselves in their context
More often however the plaintiff will be seeking to show that the words would be understood to refer to him because of some facts or circumstances which are extrinsic to the words themselves
In these cases the plaintiff is required to plead and prove the extrinsic facts on which he relies to establish identification and if these facts are proved the question becomes would reasonable persons knowing these facts or some of them reasonably believe that the words referred to the plaintiff
Where identification depends on extrinsic facts these extrinsic facts must be pleaded because they form part of the cause of action
The conspectus of the authorities thus shows that where the defamatory words complained of are not defamatory in the natural or ordinary meaning or in other words they are not defamatory per se but are defamatory because of certain special of extrinsic facts which are in the knowl edge of particular persons to whom they are addressed such innuendo meaning has to be pleaded and proved specifically by giving the particulars of the said extrinsic facts
It is immaterial in such cases as to whether the action is for defamation or for corrupt practice in an election matter for in both cases it is the words complained of together with the extrinsic facts which constitute the cause of action
It is true that Section 1234 of the Act states that the statement of fact in question must be reasonably calculated to prejudice the prospects of the complaining candidate s election
However unless it is established that the words complained of were capable of being construed as referring to the personal character or conduct of the candi date because of some specific extrinsic facts or circum stances which are pleaded and proved it is not possible to hold that they were reasonably calculated to prejudice his prospects in the elections
For in the absence of the knowledge of the special facts on the part of the 746 electorate the words complained of cannot be held to be reasonably calculated to prejudice such prospects
Once however it is proved by laying the foundation of facts that the words in question were by virtue of the knowledge of the special facts likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate it may not further be necessary to prove that in fact the electorate had understood them to be so
That is because all that Section 1234 requires is that the person publishing the complaining words must have in tended and reasonably calculated to affect the prospects of the complaining candidate in the election
It is in the light of this position in law that we have to examine as to whether the first respondent elec tion petitioner had discharged this primary burden cast on him
We have already shown above by referring to the por tions of the petition relating to exhibit P 1 that beyond alleging that the pamphlet in question and particularly the two statements therein viz everybody knows the hands behind that murder
The Marxist leader arrested also is known the first respondent has not shown as to how the said two statements or the rest of the contents of exhibit P 1 had projected him as the murderer in the eyes of the elec torate
Dr Chitale learned counsel appearing for the first respondent relied upon the contents of paragraphs 14 and 19 of the petition to contend that the extrinsic facts to spell out the innuendo were sufficiently set out there and those facts being known to the electorate the said two offending statements were enough to point to the first respondent as the murderer in the eyes of the electorate
We have already referred to the relevant portions from the said paragraphs
We do not find any facts pleaded there whereby the elector ate would gather an impression that the first respondent was the murderer of the Said four victims
Barring his own testimony all other evidence led by the first respondent is also totally silent on this aspect of the matter
None of his witnesses has stated anywhere that the contents of exhibit P 1 had made out the first re spondent as the murderer of the four victims or even that they were capable of doing so
On the other hand all his witnesses without exception are unanimous that after reading exhibit P 1 the impression it created on them was that it referred to an incident which had taken place on the previ ous day or to an earlier incident and nothing more
None of the witnesses has stated that exhibit P 1 even remotely connect ed the first respondent with the murders
This is what the witnesses have stated 747 VH Ashraft PW 2 states in his examination in chief as follows I read exhibit P 1
The impression that it created in me was that it referred to an incident that took place on the previous day
 In cross examination the witness states On seeing a copy of exhibit P 1 my first impression was that it is an issue of the daily paper for that day  
I did not go through exhibit P 1 in full
Immediately I have gone through the daily issue also
At that time I realised that Ex P 1 did not relate to an incident that took place on the previous day
After that when I read exhibit P 1 I further realised that it relates to some incident on an earlier occasion
VSA Muthaliff PW 3 in his examination in chief states as follows On reading exhibit P 1 I thought that it is a supplement pub lished in connection with the election
I thought that it is a supplement of Malayala Manorama Daily for that day
I thought that it was the report regarding murders in connec tion with the election
MK Saidalavi PW 4 in his examination in chief states as follows On reading exhibit P 11 thought that it was the news about a murder that took place the previous day
The impression that 1 gathered was that murder was committed by the Communists 
I thought that exhibit P 1 is likely to affect Left United Front adversely
 In cross examination the witness says as follows I had occasion to talk to my friends about exhibit P 1
After reading exhibit P 11 understood that it was not the news of a recent incident
I had occasioned to read about that inci dent earlier in 1983
On going through exhibit P 1 I understood that it related to an incident that took place in 1983
 CJ Dominic PW 5 in his examination in chief states as follows 748 On reading the headlines I went to the market
When I returned home the talk there was as if murder took place the previous day
Then in order to clear doubt I went to the reading room
On going through the daily issue of the Ma layala Manorama I was not able to find the news in exhibit P 11 felt sorry that such a murder took place on the eve of the election KD Abdu PW 6 states in his examination in chief as fol lows I read the copy of exhibit P 1 I realised that it was a con scious attempt on the part of the United Democratic Front to defeat the petitioner in the election
Copies of exhibit P 1 were supplied by them in almost all the houses in the local ity
Majority of the voters in that locality was ladies and they were illiterate also
 In cross examination the witness states as follows Regarding exhibit P 1 my enquiry revealed that almost all the persons of the locality had complained
I went through the entire copy of exhibit P 1
 Then it appears that there is a note by the court that the witness says that exhibit P 1 was purposely intended to defame the petitioner
The witness further stated in cross examina tion as follows When I talked to the petitioner ie the first respond ent about the speeches I made mention of the copy of exhibit P 1 also
He did not ask for a copy   K Prakash PW 7 in his examination in chief states as follows On reading such posters exhibit P 1 the news appeared to me to be true
It was only after the election that I came to know that the impression was not correct Though TM Darar PW 8 states in his examination in chief that he had seen copies of exhibit P 1 being distributed in 7th Division and he also alleges that he had seen the copy of the said pamphlet and the wall posters containing the photographs of the appellant seen pasted there he does not give the impression about the same
However in crossex amination he states as follows 749 I went through the copy of exhibit P 1
On reading I understood that it is an old story
 Thanhapen PW 9 in examination in chief has nothing to state
However in cross examination he states as follows 1 did not read the copy of exhibit P 1 in full when it was given to me
Even before reading I was pained to see it
Pain was because I saw that four persons were murdered
After going over to my daughter s residence on the same day I read another copy of exhibit P 1 in full
On reading I under stood that it is an old story
Then the pain that I felt at first was slightly relieved
But the pain continued because after all murder is murder
 CS Devadas PW 10 in his cross examination states as fol lows The impression that I gathered was that the Marxists are murderers and therefore instead of giving votes to them it must be given to the 1st respondent ie the appellant
 Sathyan PW 13 in his examination in chief states as fol lows In exhibit P 1 there was also a statement of the 1st respond ent
The reading of the news regarding 4 murders appears at first sight to be an item of news going adverse to the petitioner
This news item was a general discussion in the locality
 In cross examination he states as follows When I got exhibit P 1 I read through the same
Even after reading exhibit P 1 in full I was not able to realise that it was the news of murders committed much earlier
Even after discussions with others I did not realise that it was an earlier incident
It had news importance
It was only after the election that I came to understand that the news item in exhibit P 1 related to an earlier incident
Discussion was with my colleagues
They said that they also got the copies of exhibit P 1
They are persons without politics
I did not bring this news item to the notice of the petitioner ie the first respondent
750 5
The workers of the petitioner ie the first respond ent also used to come to me for canvassing
I asked them about the news in exhibit P 1
They said they knew about it
This was after lunch on the date previous to election
When Rajappan and Vasukutty gave a copy of exhibit P 1 to me others were waiting outside
On seeing and reading a copy of exhibit P 1 it appeared to me to be a supplement of Malayala Manora ma daily for that day
Even after reading
the news item in exhibit P I on account of the importance of the news I had no occasion to think about it further to ascertain whether it is a recent news or an old news
 PM Kaviraj PW 14 in his examination in chief has only this to say I heard ladies saying that the news contained in exhibit P 1 is a cruel act
 In cross examination he says as follows On getting PW 1 I read through it in entirety
Even then 1 understand sic that it is the news of an old incident
My impression was that it was the news relating to an inci dent which took place on that date
I did not inform the petitioner that I read EX
I wanted to tell him but I did not do so
Till now I did not inform him
That is be cause I am not interested
I told my friends
It was then that I knew that it was an old news
 TA Guide PW 15 in his examination in chief states as follows The persons mentioned in exhibit P 1 who have been murdered are my neighbours
 In cross examination he states as follows On reading of exhibit P 11 understood that it related to an earlier incident
We discussed the matter at home
I also discussed the matter with some friends
Thus it is clear from the testimony of the first respondent s witnesses that the contents of exhibit P 1 gave them an impression variously as either the incident had occurred the previous day or that it was 751 an old story or that the Communists or Marxits were murder ers or that it was a cruel act or that it was unfavourable to the first respondent
The impression conveyed by the document that the Marxists or Communists were murderers and therefore the electorate should not  vote for them and hence it was unfavourable to the first respondent was not an impression about his personal characterconduct
It was an impression at best about his political characterconduct
In particular there was no impression that he was the murderer or one of the murderers
As far as the petitioner himself is concerned in paragraph 2 of his deposition in examination in chief he makes a general statement as follows Personally against me the propaganda on behalf of the first respondent ie the appellant was that I am a murderer a non religious man and one who is unfit to be elected as a member of the legislative assembly
 Thereafter in paragraph 19 of his deposition he says with reference to exhibit P 1 as follows The original of exhibit P 1 was printed and published on a Sunday which was 22583 distribution was on a Sunday which was 2231987
Four murders were described as incidents which took place on the previous day
Out of the 4 murdered the photos of two dead bodies lying in the hospital were also published therein
exhibit P 1 mainly contained the news about murders alone
The intention behind the publication was to make the electors understand 4 murders that took place in 1983 as murders that took place on the previous day
That paper also contains a request by the committee with the photos of 1st respondent ie the appellant and Rajiv Gandhi
In the request it is specifically stated that it is only common knowledge as to who is behind the murder
So also it is written that the Marxist leader who is arrest ed is also known to all
That was the result of a conspiracy consciously entered into for the purpose of maligning and exposing me as a murderer and an undesirable person
I was never an accused of any murder case
In connection with the 4 murders described in exhibit P 1 a 752 case was registered against me for having given shelter to the accused in that case
There were several meetings in protest against my rest in connection with that case stating that it is a false case
1 had absolutely no involvement in giving protection or shelter to those persons
Subsequently that case ended in acquittal
In the main protest meeting held at Thoppumpadi one of the speakers was the 1st respond ent himself
ie the appellant
At the time of those murders in 1983 Mr Vayalar Ravi was the Home Minister
He was also the leader of the Union in the Cochin Port Trust
I was also a worker of a rival union there
There were differ ences of opinion between myself and Mr Vayalar Ravi
There fore it was at his instigation that I was implicated in a false case emphasis supplied Then there is a Court question Whether the murders of those persons were political murders The answer is Those four murdered persons were anti social elements
There was no politics involved in it
Then he continues to state The publication of exhibit PW 1 on the date previous to the election had the effect of creating an impression among the impartial electors that I am a person involved in murders  
If such a propaganda is made as was done in this case the opposite candidate will not be getting an opportunity to rectify the result
1st respondent and his workers were fully aware of the fact that I am completely innocent in connection with the murders of the said four persons
Since they were fully aware of the fact that I am sure to succeed in the election this story was purposely manipulated as a result of conspiracy 22
exhibit PW 1 when it was published had the appearance of a real issue of Manorama
Daily People on reading the report went under the impression that what was contained therein was the news of an incident which took place the previous day
On seeing copies of exhibit PW 1 many of my workers and electors also telephoned and told me that a supplement of Malayala Manorama was seen
They also inquired about the murders mentioned therein
Since I was not able to get an opportunity of bringing the real facts 753 before the electors myself and my workers were in a help less condition emphasis supplied In his cross examination he states in paragraph 32 of his deposition as follows The fight hand side of exhibit P 1 contains a true copy of the Malayala Manorama
In that portion there is no difference
On the left hand side and the lower portion of the right side there are certain additions
The news item in exhibit P 1 regarding murders are correct in all details
What is wrong is only that it was published as if to appear that it was an incident that took place on the previous day
My complaint is that an impression was created among the people that it was an incident that took place on 2131987
Even after reading the whole of exhibit P I people go only under the im pression that the incident happened on the previous day
My memory is that I have specifically alleged in the petition that such an impression was created
It was unfavourable to my interest only on account of the creation of such an impression that it was an incident that happened on the previous day
My complaint is that I did not get an opportu nity to correct the impression before the polling
I have alleged in the petition that such an impression was created among the voters and I did not get time to correct the impression before the polling
In the true copy of Malayala Manorama contained in exhibit P 1 there is nothing against me
On the left hand side of exhibit P 1 is the request to vote for the 1st respondent even though my name was not mentioned it was intended against me
Even without mentioning my name it is possible to know that it was intended against me
The writings in that request capable of identifying me as the culprit are the statements that the persons responsible are known to all and the Marxist leader who was arrested was also known to all emphasis supplied
He was then asked the question Have you so stated in the petition The answer was My memory is that it is so stat ed
He then proceeds to state as follows If I remember correct I have stated in the petition that the person intended by the arrested Marxist leader is my self
754 Many persons who gathered such an impression contacted me over phone
I did not examine anybody among them
I have examined several persons for proving the distribution of exhibit P 1
None of those witnesses were asked by my counsel wheth er any of them understood the reference in the request contained in exhibit P 1 as concerning me
I was present in court when those witnesses were examined
I did not ask any of them whether they continued to hold the impression that the murder took place on the previous day  
My impres sion is only from what my workers told me emphasis supplied 20
We have supplied the emphasis at the proper places in the first respondent s testimony reproduced above
He has himself admitted that all those who read exhibit P 1 gathered an impression that the incident had occurred on the day previous to its publication
If that is so then even the statements in exhibit P 1 that Every body knows the hands behind that murder
The Marxist leader arrested is also known were not connected by the people with his arrest for harbouring the accused in the old murder case and vice versa
The first respondent has repeated his allegation that the people had thought that the incident had taken place on the day previous to the publication of exhibit P 1 at places more than one in his testimony
He has also placed his own interpretation on the said publication which is incompatible with the extrinsic facts stated by him in support of the innuendo meaning of the publication
According to him i the four murders were described as incident which had taken place on the previous day ii the intention behind its publication was to make the electorate believe that the murders which had taken place in 1983 were murders that had taken place on the previous day iii it is in the context of this intention that it was specifically stated that it was only common knowledge as to who was behind the murders
So also in the context of this intention that it was written that the Marxist leader who was arrested was also known to all iv again it is to explain this intention that he has given the extrinsic facts viz that in connection with the four murders described in the publication a case was registered against him for having given shelter to the accused in that case
He has also stated that there were several meetings in protest against his arrest and that in the main protest meeting the appellant was one of the speakers on his behalf v according to him further the people on reading the report gathered the impression that what was stated in the publication was the news of an incident which had taken place the previous day vi further what 755 was wrong with the publication according to him was only that it was published as if to appear that it was an inci dent that had taken place on the previous day
He has reit erated this by specifically stating that his complaint was that an impression was created among the people that it was an incident that had taken place on March 21 1987
Accord ing to him further even after reading the whole of exhibit P 1 people went only under the impression that the incident had occurred on the previous day
It is his case further that he has specifically alleged in the petition that such an im pression was created and that it was unfavourable to his interest only on account of the creation of such an impres sion viz that it was an incident that had happened on the previous day
He has then stated that even though his name was not mentioned it was intended against him and that even without mentioning his name it was possible to know that it was intended against him and that the publication was capable of identifying him as the culprit because of the statements that the persons responsible were known to all and the Marxist leader arrested was also known to all
Although he has also added at the end that many persons who gathered such an impression viz that he was meant by the publication had contacted him over phone he admitted that he did not examine anyone from among the said persons
This is a telling circumstance against him because he had followed as a witness after all his witnesses were examined and he knew that none of his witnesses had stated that they had connected the imputations in the publication with him
On the other hand as stated earlier not only all his witnesses had stated that they had gathered the impression that the incident had taken place the previous day but he himself was of the view that the publication was meant to create such impression and that it did so
Hence there was no reason for the electorate to connect him with the said incident even remotely
On his own testimony as well as on the testimony of his witnesses therefore it is clear that the publication was intended to create an impression and did create an impression that the incident of murders had taken place a day previous to the election
If that is so then the publi cation and the two allegedly offending statements in the same did not connect him with the murders much less had they called him a murderer
Even his arrest for harbouring the accused in the old incident of murders was not capable of identifying him as the murderer in the eyes of the people
None knew who were the accused and who were arrested in connection with the murders which were committed the previ ous day
The people however certainly knew that the first 756 respondent was not arrested in connection with the said murders
Hence the extrinsic facts which the first respond ent stated in his testimony for the first time even if they were given in the pleadings would not have spelt out the corrupt practice
For those facts in the face of the asser tion of the first respondent himself were incapable of identifying him as the murderer in the eyes of the elector ate
For these reasons we are of the view that the extrin sic facts given for the first time by the first respondent in his testimony were incapable of identifying him as the hand behind the murders or as the murderer in the eyes of the people
We are also of the view that in the absence of the extrinsic facts supporting the innuendo meaning of the publication the petition lacked the statement of material facts for spelling out the corrupt practice complained of
Either therefore the allegation of the corrupt practice should have been struck off or the petitioner ought not to have been allowed to lead evidence in support of it
For as stated earlier whenever an innuendo is alleged a statement of material facts as required by Section 83ia of the Act is not complete without stating the extrinsic facts spelling out the innuendo meaning
It is the publication together with the extrinsic facts which in such circumstances consti tute the corrupt practice
The absence of the statement of such facts is not an absence of the particulars of corrupt practice but an absence of the averment of material facts themselves
Hence it is not necessary for us to deal with the controversy raised before us with regard to the respon sibility of furnishing of or asking for particulars
It is necessary in this connection to make a distinction between a purely libel action and an allegation of corrupt practice in an election petition
Both for libel action as well as for an allegation of corrupt practice in an election petition it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo meaning of the words complained of
However whereas in a libel action it may further be necessary to prove that those with special knowledge of the extrinsic facts were likely to interpret or understand the words complained of in a defama tory sense in an election action it may not be necessary to do so and all that is necessary is to prove that the words complained of were reasonably calculated to prejudice the prospectus of the defamed candidate s election
However this latter distinction does not obliterate the similarity between the two actions viz that in each case in the first instance the defamation is to be spelt out by pleading the necessary extrinsic facts
In a libel action the ex trinsic facts constitute a cause of action whereas in the election action they 757 constitute the corrupt practice
In other words without them there is no cause of action in the libel suit and no allegation of corrupt practice in an election petition
Dr Chitale however contended that the appellant had nowhere stated that the first respondent was not intend ed to be referred to by the said publication
In this con nection he invited our attention to the appellant s deposi tion
In his cross examination on the subject
In paragraph 25 the appellant has stated as follows The statement contained in exhibit P 1 may give an impression that it was in the name of the Election Committee
On a reading of that statement it would appear that it was on behalf of the Election Committee
 There were then the following questions and answers Question Do you agree to the contents of the statement included in exhibit P 17 Answer I do not have any disagreement
Question In the statement contained in exhibit P 1 it is stated that everyone knows persons behind the murder and also the Marxist leader who was arrested in that connection
What is your opinion regarding those statements Answer That is only a repetition of an incident that took place in 1983
I cannot say what was the intention behind that statement and who was intended thereby
Question No Marxist leader was arrested in connection with that case
Further on a reading of that statement the impression that could be gathered is that the Marxist leader in the election was responsible for the murder and he was arrested
Is it so Answer I have nothing to do with that statement
And I was not able to gather such an impression on reading it
I do not think that anybody else also will go under that impression
Question When any such statement is reprinted and published it must be intended for upsetting the candidate
Answer That de pends upon the intention entertained by the person
I cannot give an opinion
Question When the petitioner the first respondent was the Deputy Mayor of the Cochin Corporation was he not arrested in connection with that case under the false accusation that he gave shelter to the accused An swer I remember that the petitioner the first respondent was arrested in connection with such a case
He then pro ceeds as follows I was a speaker in a meeting in protest against his arrest
I spoke in that meeting because I felt that it is a politi cally motivated false case
In 1983 I have gone to the hospital 758 where the dead bodies were taken for post mortem In the first instance in the absence of the statement of the material facts in the petition as stated above the appellant was not called upon to join issue with them in his written statement
Secondly there is nothing in his testi mony referred to above which helps the first respondent in his case that the publication had referred to him as the murderer
This is more so because as stated above the first respondent himself has interpreted the publication as creating an impression of a different murder
The next corrupt practice of which the High Court has found the appellant guilty is the wall poster affixed on the Palace Road on the northern side of the City Rationing Office within 25 yards from the polling station
Near this wall poster was also affixed exhibit P 1
The contents of the wall poster are as follows Defeat murderer TM Mohammed who murdered four Christian brothers at Fort Cochin
Our symbol
 exhibit P 14 is the close up photograph of the said poster whereas exhibit P 15 is a photograph from a distance as stated earlier
There is no doubt that the contents of this wall poster directly named the first respondent as the murderer of the four victims and if it is proved that the said poster was affixed prior to the election by the workers of the appellant with his knowledge and consent as alleged in the petition nothing more has to be established to hold the appellant guilty of the corrupt practice within the meaning of Section 1234 of the Act
The finding of the High Court on this corrupt practice is recorded in paragraph 50 of its judgment
The High Court has stated there that the writings were at the instance of the appellant and with the consent of his election agent and that it was published in the presence of and under the supervision of the appellant s election agent and hence it attracts all the requirements of Section 1234 of the Act
This finding is attacked on behalf of the appellant before us
It is necessary there fore first to find out the allegations made by the first respondent in his election petition in that behalf
The first respondent has alleged in paragraphs 17 34 84 and 120 of his petition as follows 17
The wall posters and writings on the walls arc done by the first respondent his agents and his workers with a view to propagate false aspects against the petitioner and to mis 759 lead the electorate that the petitioner is a murderer and if anyone votes in favour of him the law and order of the society will be adversely affected
This has misled the whole electorate which has caused serious prejudice in the election of the petitioner
X X X X X 34
On the Palace Road on the northern side of the City Rationing Office the workers of the first respondent with the knowledge and consent of the first respondent affixed wall poster that the petitioner had murdered 4 Christian brothers at Fort Cochin and hence the electorate shall vote against the petitioner and they have to vote in favour of the first respondent
It is also relevant to note that this is within 25 yards from the polling station and near this writing they have affixed the reprinted Malayala Manorama daily on 22nd March 1987 morning
This is to mislead the public that the petitioner is a murderer and he had murdered four Christian brothers  
X X X X X 84
To prove Annexures 20 and 21 the wall posters pasted on the walls near the City Rationing Office Palace Road COchin the petitioner is examining two witnesses namely 1 K Prakash House No 8796 TD East Raod Cherali Cochin 2 and 2 J Sundaram Kocherry Junction Pandikuddy Cochin 2
X X X X X 120
Even before the distribution of reprinted Malayala Manorama the first respondent has specifically instructed his workers to write on the walls and also paste handwritten wall posters throughout the constituency publishing that the petitioner is a murderer
The hand written wall poster was pasted near the City Rationing Office on the Palace Road a photostat copy of which is produced and marked as Annexure 20
This was pasted by Anil Raj section Thamaraparambu Amarava thy Cochin 1
This wall poster was written at the specific instruction of the Chief Agent and convener of the election committee and in their 760 presence Anil Raj pasted this wail poster on the wails
This fact was witnessed by K Prakash and J Sundaram
Really these writings misled the whole electorate and give a bad impression about the petitioner that he is a murderer and he is responsible for the murder of 4 Christian brothers
This is absolutely falsehood
This publication was done by the candidate his agents and by his workers with the con sent and knowledge of the candidate and they knew that this statement is false in relation to the petitioner
The allegations in the petition were denied by the appellant in his written statement as follows 12
Averments in paragraphs 30 to 35 are also false and are hereby denied
Neither the first respondent nor his agents or workers have any knowledge of the wail writings filed by the petitioner as Annexures 15 to 22
Nor were any such writings made by any person with the consent or knowledge of this respondent
Nor do the writings show anything beyond a criticism of the Marxist party on grounds of law and order
However the wall writings shown as Annexure 20 were not seen anywhere in the constituency nor made by the respondent or his workers
It is deliberately concocted by the peti tioner
In these paragraphs also no material facts required to impute a corrupt practice against the first respondent have been stated
The entire allegations in the aforesaid paragraphs have been falsely made
X X X X X 18 
The annexure 20 appears to have been deliberate ly concocted by the petitioner with an ulterior motive and the rest of the aforesaid annexures are also similarly concocted nor do they show any corrupt practice
The further contention in para 98 that these writing and wall posters appeared in the constituency between 10th and 14th March 1987 is absolutely false
Nor were they done by this re spondent or by his agents or workers of the UDF
Neither with the consent of the knowledge of the respondent
The witness mentioned in paragraph 98 also appears to be parti sans of the petitioner
X X X X X 761 25
The averments in paragraph 120 that the reprinted Ma layala Manorama was pasted and hand written wallposter was published stating that the petitioner is a murderer is entirely false and the averment that the first respondent instructed his workers to do so is false
The averment that annexure 20 is a photo copy of a handwritten wall poster near the City Rationing Office on the Palace Road and this was pasted by Anil Raj and they are written on the specific instruction of the Chief Agent and convener of the election committee is wholly untrue and is denied   
X X X X X 26
The averments in paragraph 121 that this respondent has spent more than two lakhs for the election purpose is wholly untrue
The expense incurred by this respondent for the election has been strictly within the limits prescribed by law and the ejection accounts of this respondent have been duly submitted as required by law
The petitioner is fur nishing a wholly fanciful idea of Auto rikshaws and cars etc
out of his imagination in paragraph 121
It will thus be seen that in paragraph 17 of the petition the first respondent has averred generally that it was the appellant his agents and his workers who had pasted the wall posters
Secondly in this paragraph he has not specified any wail or walls on which the poster was pasted
Thirdly he has attributed the pasting only to the appel lant his agents and his workers
There is no mention of the election agent
What is further in this paragraph he has not said whether the workers had done it with the Appellant s consent or knowledge
As regards the averments in paragraph 34 of the peti tion the first respondent does state that the workers of the appellant had pasted the wall poser with the knowledge and consent of the appellant
But it is necessary to remem ber here that he does not mention in this paragraph either the agent or the election agent nor does he state here that the pasting was done with the knowledge and consent of the election agent
What is further important to note is that in this paragraph he mentions the pasting of the poster only on one wall and that is the Palace Road wall near the City Rationing Office
762 In paragrah 84 again he specifies that he is going to examine witnesses in connection with the pasting only on one wall viz the same wall on the Palace Road near the City Rationing Office and he gives the names of two witnesses and one of them viz K Prakash PW 7 has been examined in that connection
In the last paragraph where there is a reference to the said posters
P 14P 15 viz paragraph 120 al though there is a vague mention of the walls the only wall specified is the same wall on the Palace Road
In this paragraph again the averment is that the said pasting was done by the workers and agents with the knowledge and con sent of the appellant
In this paragraph for the first time he has introduced the Chief Agent and the convenor of the Election Committee and the allegation is that the wall poster was written at the specific instructions of the said Chief Agent and the Convenor
He has not specified who the Chief Agent and the Convenor of the Election Committee were
Although Dr Chitale submitted that the expression Chief Agent should be construed to mean election agent it is not possible for us to accept the submission for reasons more than one
In the first instance the pleadings with regard to corrupt practice have to be specific since everyone who is guilty of the corrupt practice is liable to be prosecuted for the offence
Secondly except in this paragraph we don t find there is a reference to any such person as Chief Agent
Wherever the first respondent wanted to refer to the election agent he has done so
It cannot therefore be argued that he does not know the difference between the election agent and the Chief Agent
The averments in the petition therefore bring out two facts in particular prominently
One is that though the first respondent has alleged vaguely in paragraphs 17 and 120 of the petition that the wall posters were on more walls than one he has specified no wall in paragraph 17 and he has referred to only one wall ie the Palace Road wall in all the other relevant paragraphs viz  34 84 and 120
What is more in paragraph 84 he had made it clear that he was going to examine witnesses only in connection with the pasting of the poster on the said one wall and no more
Secondly even with regard to the pasting of the wall poster on the said wall he is not sure as to who had done it and with whose knowledge and consent
As pointed out above in paragraph 17 he has stated that only the appel lant s agents and workers had pasted it
He has not stated that his workers had done it with the appellant s consent or with the consent of the election agent
In paragraph 34 no doubt he states that the appellant s workers had done it with the knowledge of the appellant but in paragraph 120 he 763 states that it was done at the specific instructions of the Chief Agent of the appellant and in the presence of the Chief Agent and the convenor of the Election Committee
Nowhere in the petition it is stated that it was done with the knowledge and consent and at the instance of or in the presence of the appellant s election agent
This assumes importance because his witness K Prakash PW 7 as will be pointed out hereafter has come out with a version which is inconsistent with the averments in the petition and has stated that the pasting of the poster on the Palace Road wail was being done under the supervision among others of Joseph Katithara who was the appellant s election agent
As regards the evidence which the petitioner has led to prove Exs
P 14 and P 15
we find that although he had cited two witnesses viz K Prakash and J Sundaram to prove the lone wallposter on the Palace Road only one wit ness viz K Prakash is examined
Though K Prakash PW 7 was cited to prove the lone wail poster on the Palace Road he has from the witness box deposed to the fact that he had seen wall posters being pasted on the Saturday a week prior to the election
Since he is the only witness who has been examined to prove the actual pasting of the wall poster and the appearance of the wail poster prior to the election his deposition has to be scanned carefully
He has stated that he resided in the 8th Division of the Mattancherry Assembly Constituency
In examination inchief he stated that he was a medical wholesale distributor
He had also an occasion to see a copy of exhibit P 1
It was given to him at his residence on the date previous to the election
He has also named the appellant and Ms MK Latif Naveen Kumar Radhakrishnan and others as being the persons who had brought the copy of exhibit P 1 to his residence
Indeed he seems to be a very important man since not only the workers of the appellant but the appellant himself had according to him gone to his residence specially to deliver a copy of exhibit P 1 to him
Then he has deposed to the fact that he had seen copies of Exs
P 14 and P 15 being pasted on the wails and not only one wail near the City Rationing Office on the Palace Road
He admits that exhibit P 14 is the close up photo and exhibit P 15 is the distant photo of the same poster
It is therefore difficult to understand how he could have seen both being pasted
May that be as it is
It has further to be remembered that both Exs
P 14 and P 15 are the photographs of not only the wail poster but also of exhibit P 1 which was pasted by its side
Because he has gone on to say that he had seen wall posters being pasted on Saturday one week prior to the election
Since it is the case of the first respondent himself that exhibit P 1 was printed and pub lished only a day prior to the election it is difficult to understand as to how this witness 764 could have seen the wall poster together with exhibit P 1 being pasted one week prior to the election
He has then named Anil Raj Joseph Katithara who is the election agent of the appellant KM Mohammed Radhakrishnan and other unnamed workers of the UDF being persons present to supervise the pasting of the wail posters  Thereafter he has corrected himself by saying that at that time the photo of exhibit P 1 was not there a statement difficult to follow
According to him at the time he saw the pasting being done his co worker was also there
He has not named him nor is he examined
It is then his case that on the day previous to the election he also saw a copy of exhibit P 1 being pasted near the wall poster
Of course this witness has also deposed to the writings on walls which are Exs
P 16 P 17 and P 18 with which we are not concerned in this appeal but about which the first respondent had made serious complaint in the petition before the High Court which has been rejected by the High Court
He is thus a witness not only for the past ing of Exs
P 14P 15 on all the walls in the City but for a similar pasting of all other exhibits complained of
An omnipresent witness indeed
In cross examination he was asked whether he was not the Secretary of the Election Committee of the first respondent in Division No 8 and also the branch Secretary of the Marxist Communist Party
He denied the said suggestion and stated that he did not work in the election for the first respondent and that he had no politics and he was not a member or sympathizer of any political party
He has also gone on to maintain that he had seen wail posters similar to exhibit P 14 in other places and has named some of the places as Anavadil UCO Bank Cherlai Pandikuddy Junction
He has then stated contrary to what he had stated in his examina tion in chief that he had not seen the act of pasting of exhibit P 1 and he did not know who pasted exhibit P 1 near exhibit P 14 although in examination in chief he has categorically stated as follows On the day previous to the election I saw copy of exhibit P 1 being pasted near the wall poster
Time and again the courts have uttered a warning against the acceptance of a non corroborated oral testimony in an election matter because it is not only difficult to get a non partisan witness but is also easy to procure partisan witnesses in such disputes
The courts have there fore insisted upon some contemporaneous documentary evi dence to corroborate the oral testimony when in particular such evidence could have been maintained
The dangers of accepting only 765 the oral testimony are illustrated by this witness
In the first instance this witness was cited by the first respond ent himself to prove only Exs
P 14P 15 pasted on one wail viz the City Rationing Office wall on the Palace Road as has been stated clearly in paragraph 84 of the petition
Even if we construe the said paragraph in the petition liberally it can only mean that this witness was cited to prove the wallposters being pasted on the walls near the City Rationing Office on the Palace Road
He was not cited to depose to posters on walls in any other part of the City
Secondly the petitioner has not produced any documentary evidence such as the photographs of the posters on the other walls even near the City Rationing Office not to speak of the walls in other parts of the City
exhibit P 15 shows the long length of the wall
But except for this poster there is no poster on any other part of that wall seen in the photograph
Assuming that there were posters on the other walls even near the City Rationing Office we have no evidence in that behalf much less of the posters on the walls in the other parts of the City
The witness has however chosen to depose to his having seen posters on walls in other pans of the City to which again there is no specific reference in the petition
It was the duty of the petitioner to give the particulars of the posters on the other wails or in other parts of the City
His testimony is also suspect for other reasons as well
Firstly this wit ness has also deposed to the fact that he had received a copy of exhibit P 1 on the day prior to the election and what is  further he has gone to the extent of saying that it was the appellant himself who along with his election agent and other workers had gone to his residence to deliver the said copy
It is difficult to believe that on the day prior to the election the appellant and his election agent in partic ular will have no other work but to go from house to house distributing exhibit P 1
Secondly the witness has also deposed to the fact that he had not only seen the wall poster Exs
P 14P 15 but he had also seen other wall posters which were the subject matter of the petition
What is further according to him he had also seen Exs
P 14P 15 being pasted in his presence by one Anil Raj under the supervi sion of the appellant s election agent Joseph Katithara and the workers of the UDF one week prior to the election
We have pointed out above that in the petition there is no reference to the election agent in this connection anywhere and the reference to the Chief Agent cannot be construed as a reference to him
What is further he has also in his examinatiOn in chief gone to the extent of saying that even when exhibit P 1 was pasted near exhibit P 14 a day prior to the election he had seen the actual pasting
This of course he retracted in his cross examination when he stated that he had not seen the said act of pasting
We have therefore a witness here who is 766 omnipresent at all crucial times and places and has no compunction in contradicting himself on vital matters
It is this witness that we are asked to believe in support of the first respondent s case that the wail poster Exs
P 14P 15 was pasted by the appellant s agents and workers under the supervision of the appellant s election agent
Needless to say that his testimony has to be discarded being of a very doubtful nature
The only other witness who is examined in connection with Exs
P 14P 15 is the photographer KJ Simon PW 25
Even according to this witness he had taken the photo graphs Exs
P 14 P 15 on March 25 and 26 1987 ie two days after the election
Therefore even if we accept his evidence that he had taken the photographs in question on the said days that will not support the first respondent s case that the said posters were there prior to the election day
The appellant s cross examination of this witness was directed to prove that he had not taken the photographs even on 25th and 26th March 1987 but at a much later date and just prior to the filing of the present election petition
The appellant s case both in his written statement as well as in the Court is that the wall poster of which Exs
P 14 and P 15 are the photographs was concocted much after the election and only for the purpose of the election petition
It is in the light of this case of the appellant that we have to scrutinise the testimony of this witness
The wit ness says that exhibit P 14 is the chose up photograph of the wail writing near the City Rationing Office and exhibit P 15 is its long distance view and that he had taken the photographs in question on March 25 and 26 1987
In cross examination he was asked whether since he was a professional photogra pher and had his studio he kept accounts
His answer was that he kept accounts only for the indoorwork and not for the out door work an answer which is very difficult to appreciate
The answer was given obviously to forestall the further investigation in the matter by compelling him to produce his accountbooks which would have shown the date on which he had actually taken the photographs
He was then asked as to how he had remembered the dates on which he had taken the photographs of various other posters including Exs
P 14P 15
To that he replied that he had given the dates of the photographs from his memory
To test his memo ry he was asked that since he was also taking photographs of marriage ceremonies which were on an average three or four times in a month he could give the dates on which he had taken photographs in connection with some of the mar riages
To that question of course he answered in the negative
This witness further who was called only to depose to the fact that he had taken the photographs in question has 767 gone further and stated that all the wall writings and wall posters appeared to him to be old and he had seen them earlier
According to him further they were written even two days prior to the date of election
He also goes on to say that exhibit P 1 was seen by him on the day prior to the election
Although he stated that he was paid Rs800 for the photographs and Rs1000 for copies thereof he did not enter the amounts in his accounts
He stated that he had a Bank account but he did not remit the amount to the Bank
He then stated that in his studio there would be no record to show that the photographs were taken
He also stated that he had not given any receipt for receiving the payment
It was then suggested to him that he was a sympathizer of the Marxist Party which suggestion of course he denied
His testimony not only fails to impress us but leads us to believe that there is much force in the contention of the appellant that the poster in question was concocted at a later day
For otherwise it is difficult to explain as to why the witness who in the ordinary course should maintain his accounts and other documents should keep them from the court on pretexts which are not only far from convincing but positively doubtful
There is yet another and a very important reason as to why the entire version with regard to Exs
P 14P 15 has to be rejected
The first respondent has come to the court with a version that the wall poster and such other posters were pasted on walls in the different parts of the constitu ency at least a week prior to the election
Admittedly such false propaganda is an electoral offence punishable both under Section 127A of the Act and Section 17 I C of the Indian Penal Code
The first respondent or his agents and workers could have made complaints both to the Election Officer as well as to the police in that connection immedi ately and a regular panchnama of the same could also have been made at the time
That would have been the best evi dence of the said allegation
We have no doubt that the first respondent and his workers would not have failed to do so had the posters been pasted at the time alleged by them
We are therefore impelled to reject the evidence produced by the first respondent in connection with the publication of the wallposter represented by Exs
P 14P 15
In the circumstances the finding of the High Court in respect of both the alleged corrupt practices will have to be set aside and 768 is hereby set aside
Hence we allow the appeal set aside the order of the High Court and dismiss the election peti tion
Interim order passed by this Court also stands vacat ed
In the circumstances of the case the parties will bear their own costs
The Registry will take immediate action under Section 116C 2 of the Act
G N Appeal al lowed


Summary:
Sub rule 3a of rule 3 of the Andhra Pradesh Roads and Buildings Engineering Service Rules 1965 prescribes that the substantive vacancies in the category of Assistant Engineers 37 12 per cent shall be filled up by direct recruitment and the remaining 62 12 per cent by transfer and promotion of junior officers
In K Siva Reddy vs State of Andhra Pradesh   filed by direct recruits the Court had directed the State Government to ascertain the exact sub stantive vacancies in the category of Assistant Engineers in the service as on December 31 1982 work out the quota prescribed under rule 33a of the Rules and draw up a seniority list accordingly
In the draft seniority list drawn up by the State Gov ernment on the basis of the guidelines it placed the 1982 direct recruits from serial Nos
234 to 269 without disturb ing promotees upto serial No 233 and the remainder of promotees given promotion prior to 1982 were placed against serial Nos 270 to 300
In C Radhakrishna Reddy vs State of AP WP No 369 of 1989 decided on November 10 1989 the Court found the said list in accord with the directions
In these writ petitions preferred by the promotee As sistant Engineers it was contended for them that serious injustice had been done to them as the accrued rights of theirs had been disturbed and some of the direct recruits had been given the benefit of seniority above them by count ing service prior to their actual recruitment
Dismissing the writ petitions the Court HELD 1
A Government servant is justified in taking legal action 704 when he feels that a stigma or punishment is undeserved but he is expected to bear with fortitude and reconcile to his lot suppressing disappointment when he finds a co worker raised to a position which he himself aspired after
707G Dr G Marulasiddaiah vs Dr TG Siddapparadhya  Ors   referred to
In K Siva Reddy s case the Court had taken a very equitable view in not disturbing the regularisation contrary to the quota and had taken every care to ensure that the cause of justice was not made to suffer and a balance was maintained by an appropriate admixture of relief by confin ing the reconsideration for a period after 1982
The year 1982 was fixed on account of two features i that regular disputes had been raised from that time and ii a period of 5 6 years was not too long a period to give rise to a sense of conclusiveness generated by long lapse of time
The promotee engineers should have been happy and thankful to their lot that their regularisation was not disturbed and even seniority prior to 1982 was not being affected though they had acquired these benefits out of turn
707C E