Appeal No130 of 1958
Appeal by certificate granted by the Madras High Court against its judgment and order dated November 1 1957 in W P Nos 623 and 624 of 1957
April 30
May 1
A V Viswanatha Sastri T R Venkatarama Iyer K R Sharma and K R Choudhri for the appellant
The petition is liable to be dismissed for non joinder of Muthu and Meganathan who were candidates as defined in section 79b of the Representation of the People Act 1951
The allegation is that Meganathan accepted a gift of Rs 10000 and in pursuance thereof withdrew his candidature and also that Muthu accepted a gratification of Rs 5000 and in pursuance thereof he retired from 869 the contest
On the language of section 1231 of the Act such acceptance constitutes a corrupt practice 
The words I by a candidate or his agent or by any other person  in the section are to be read with the words offer or promise  and not with gift 
In view of the provisions of the Transfer of Property Act a I gift  is a bilateral Act and it includes both the giving of the gift and the acceptance of that gift
Section 99 of the Act shows that a receipt of a bribe is a corrupt practice
See sections 82 b 98 and 99 of the Representation of the People Act 1951
Under section 99 the Tribunal has to record a finding whether a corrupt practice has been committed with the consent of any candidate
When a candidate accepts a gift with the object of inducing him to withdraw his candidature he consents to the corrupt practice of bribery being committed and such a candidate is liable to be named under the section
Alternatively the term gratification in section 123 is very wide and includes the withdrawal of candidature by a candidate to induce another candidate to stand at an election
Affording of such gratification amounts to a corrupt practice within section 123
Section 82b talks of I allegations of any corrupt practice  and it therefore contemplates any allegation relating to or concerning a corrupt practice
C K Daphtary Solicitor General of India A N Sinha and N H Hingorani for respondent No 1
A candidate who accepts a gift from a returned candidate does not commit corrupt practice  within the meaning of section 1231 and therefore is not necessary party to the election petition under section 82b of the Act
The section defines the corrupt practice of bribery and the words I gift offer or promise by a candidate or his agent or by any other person  clearly contemplates the making of a gift
Further section 1231 does not include the acceptance of a gift as a corrupt practice
This is also apparent from consideration of section 1243 of the Act which was deleted by the amending Act XXVII of 1956
Section 1243 made receipt of gratification by candidate or intending candidate a minor corrupt practice and section 123 1 made bribery by a candidate or his agent a major 870 corrupt practice
The amending Act has done away with the classification of major and minor corrupt practices
Some of the minor corrupt practices have been retained as corrupt practices and the rest dropped altogether
The amending Act has dropped the provision making acceptance and agreement to accept a bribe a corrupt practice with no material change in section 1231 to bring within it these cases
By omitting section 1243 from the Act Parliament therefore intended that acceptance of a bribe was no longer to be treated as a corrupt practice
Section 99 does not purport to define a corrupt practice mentioned in section 82b  section 99 read in the light of definition section does not support the appellant
May 20
The Judgment of the Court was delivered by SARKAR J
In the 1957 general elections nine persons filed nomination papers for election to the Madras Legislative Assembly from the Sathankulam constituency all of which were found on scrutiny to be valid
Among these persons were the appellant the respondent Kandaswami and two others called M R Meganathan and G E Muthu
Meganathan Muthu and three others whom it is not necessary to name as they are not concerned with this appeal did not go to the poll and dropped out of the election earlier
At the end the election was actually contested by the appellant the respondent Kandaswami and two other candidates with whom also this appeal is not concerned
The appellant was successful at the poll and was on March 61957 declared elected
On April 15 1957 the respondent Kandaswami whom we will hereafter refer to as the respondent preferred an election petition under the provisions of the Representation of the People Act 1951 for a declaration that the election of the appellant was void
The appellant was made the first respondent to the petition but Meganathan and Muthu were not made parties to it at all
Some of the other candidates at the election were also made parties to the petition but 871 it is unnecessary for the purpose of this appeal to refer to them
The petition was referred to an Election Tribunal for trial
The appellant then made an application to the Election Tribunal which was marked I A No 1 of 1957 for the dismissal of the petition under section 903 of the Act
That section provides that  The Tribunal shall dismiss an election petition which does not comply with the provisions of section 81 section 82 or section 117 
The appellant s case was that the petition had not complied with the provisions of section 82
Section 82 states  A petitioner shall join as respondents to his petition b any other candidate against whom allegations of any corrupt practice are made in the petition
 The appellant contended that allegations of corrupt practice were made in the petition against Meganathan and Muthu and they should therefore have been made parties to the petition under section 82 and as that had not been done that section had not been complied with and so the petition had to be dismissed under section 903
It is not in dispute that non compliance with the provisions of section 82 entails the dismissal of an election petition
The respondent s answer to the application was that no allegation of corrupt practice had been made in the petition against Meganathan or Muthu
The Tribunal accepted the contention of the respondent and dismissed the application of the appellant
The appellant then moved the High Court at Madras by two applications one for the issue of a writ of certiorari quashing the order of  the Tribunal dismissing his application and the other for the issue of a writ of prohibition directing the Tribunal not to proceed with the hearing of the election petition
The High Court by its judgment dated November 1 1957 dismissed both the applications taking the same view as the Tribunal
Hence this appeal
872 It is not in dispute that Meganath an and Muthu were candidates
A candidate has been defined in section 79 of the Act as meaning among others a person who has been duly nominated as a candidate at any election and both Meganthan and Muthu had been so nominated
The only question that arises in this appeal is whether allegations of corrupt practice are made against them in the election petition
The statements in the petition which are said to constitute such allegations are in these terms  IV A
The returned candidate has committed the following act of bribery corrupt practices according to section 1231 of Act 43 of 1951  2 Sri M R Meganathan was candidate for Sattankulam and Tiruchandur Assembly Constituencies at the election
The first respondent and his election Agent paid him a gift of Rs 10000 to induce him to withdraw from being a candidate at the election from Sattankulam Constituency and in pursuance thereof Sri M R Meganathan withdrew his candidature at the election from Sattankulam Constituency        4 One Sri G E Muthu candidate at the election in this Constituency was paid a gratification of Rs 5000 by the first respondent and his Election Agent for the purpose of making him retire from contest and in pursuance thereof he retired on the contest Putting it shortly the allegations in the petition are that the appellant and his election agent paid Meganathan Rs 10000 and Muthu Rs 5000 to induce them to drop out of the election and they accordingly abandoned the election contest
So all that is said here against Meganathan and Muthu and we are concerned only with allegations against them is that they accepted money paid to them to induce them 873 to abandon the contest and actually abandoned the contest
Is an allegation then that a candidate accepted money paid to him to induce him to drop out of the election test and actually so dropped out an allegation of corrupt practice against such a candidate  The High Court field that it was not and that only the giving of a bribe was a corrupt practice and not an acceptance of it
We are in agreement with this view
T he Act contemplates various kinds of corrupt practices and defines them in section 123
We are concerned with the corrupt practice of bribery which is the corrupt practice alleged in the petition
Bribery again is of several varieties
We are concerned with a gift to a candidate for inducing him to abandon his candidature
This form of the corrupt practice of bribery is thus defined in the Act Section 123 The following shall be deemed to be corrupt practices for the purposes of this Act 1 Bribery that is to say any gift offer or promise by a candidate or his agent or by any other person of any gratification to any person whomsoever with the object directly or indirectly of inducing a a person to stand or not to stand as or to withdraw from being a candidate or to retire from contest at an election Explanation
For the purposes of this clause the term  gratification  is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at or for he purpose of any election and duly entered in the account of election expenses referred to in section 78
 is an acceptance of a bribe by which word we mean a gift made with the intention specified a corrupt practice within this definition  We do not think it is
What this definition makes the corrupt practice of bribery is a  gift offer or promise by a candidate or his agent or by any other person of any gratification made with the object mentioned
The words  gift 874 offer or promise by a candidate or his agent or by any other person  clearly show that what is contemplated is the making of a gift
These words are wholly inappropriate to describe the acceptance of a gift
The words  with the object directly or indirectly of inducing also indicate that only the making of a gift is contemplated for the object is of the person making the gift and clearly not of the person accepting it
Mr Sastri who appeared for the appellant contended that the words  by a candidate or his agent or by any other person  are not to be read with the word  gift  but only with the words  offer or promise 
It seems to us that this is an impossible reading of the section as it is framed
Even on this reading the section would still contemplate a gift  to any person  and therefore only the giving and not an acceptance of it
That section 1231 does not contemplate the acceptance of a gift to be a corrupt practice is also apparent from a consideration of section 124 of the Act which was deleted by an amendment made by Act XXVII of 1956
Under el
3 of that section the receipt of or an agreement to receive a gift with substantially the same object as mentioned in section 123 was a corrupt practice
As legislative provisions are not duplicated such a receipt of or an agreement to receive a gratification was clearly not a corrupt practice within section 1231 as it stood before the amendment
The amending Act has dropped the provision making acceptance and an agreement to accept a bribe a corrupt practice but has made no change in section 1231 to bring within it these cases
Section 1231 cannot therefore be read as including within the definition of a bribe contained in it an acceptance of it
By omitting section 1243 from the Act therefore the legislature intended that acceptance of a bribe was no longer to be treated as a corrupt practice
In view of this clear indication of intention it would be idle to enquire why the legislature thought fit to exclude the acceptance of a bribe from the definition of corrupt practice
If the omission is accidental then it is for the legislature to take the necessary action in that behalf
We cannot allow any 875 consideration of the reason for the omission to affect the plain meaning of the language used in section 1231
Mr Sastri then contended that in view of the provisions of the Transfer of Property Act there can be no gift without an acceptance of it by the donee and therefore whenever a gift is mentioned both the giving and the acceptance of the thing given are necessarily simultaneously contemplated
He said that it followed from this that the corrupt practice of bribery by a gift mentioned in section 1231 included the acceptance of the gift
It is true that a gift contemplates both a giving and an acceptance but these are none the less different acts and it is open to the legislature to attach certain consequences to one of them only
It was therefore open to the legislature in enacting section 1231 to provide that the making that is to say the giving of a gift alone should be a corrupt practice
This is what it has done it has not made the receipt of a gift a corrupt practice
It has deliberately omitted the acceptance of a gift from corrupt practices described in the Act
Though a gift cannot be mad without an acceptance of it such acceptance has not been made a corrupt practice
Mr Sastri also contended that section 99 of the Act showed that the receipt of a bribe was a corrupt practice
Section 98 states that at the conclusion of the trial of an election petition the Tribunal shall make one or other of the orders therein mentioned
Then comes section 99 which states that in certain circumstances besides these orders certain other orders have also to be made by the Tribunal
The material portion of this section is in these terms  section 99 1 At the time of making an order under section 98 the Tribunal shall also make an order a Where any charge is made in the petition of any corrupt practice having been committed at the election recording i a finding whether any corrupt practice has or has not been proved to have been committed by or with the consent of any candidate or his agent at the election and the nature of that corrupt practice and 876 ii the names of all persons if any who have been proved at the trial to have been guilty of any corrupt practice and the ture of that practiceand
Mr Sastri contended that under this section the Tribunal has to record a finding whether a corrupt practice has been committed with the consent of any candidate
He said that when a candidate accepts a gift made to him with the object of inducing him to withdraw his candidature he consents to the corrupt practice of bribery being committed and such a candidate is liable to be named under the section
He added that in order that such a candidate can be Bo named a charge of the corrupt practice has to be made against him in the election petition
The result therefore according to Mr Sastri is that a candidate who consents to a bribe being paid to him to withdraw his candidature is guilty of a corrupt practice and therefore an allegation of such a corrupt practice can be made in the petition if it is intended to have him named under section 99 and once such an allegation is made in the petition section 82b would be attracted and the candidate has to be made a party to the petition
He says such allegations were made against Meganathan and Muthu
This contention seems to us to be clearly fallacious
Section 99 does not purport to define a corrupt practice
The definition of corrupt practice occurs in section 123 and the corrupt practice mentioned in section 99 has to be a corrupt practice as so defined
A corrupt practice committed with the consent of a candidate is not in itself a new kind of corrupt practice
When section 99 talks of a corrupt practice having been committed with the consent of a candidate it means a corrupt practice as defined in section 123 having been committed and a candidate having consented to its commission
The consent by a candidate to the commission of a corrupt practice by some one else whatever its con sequences under the Act may be is not itself a corrupt practice
Therefore to say that a candidate consented to a corrupt practice being committed by accepting a gift made to him to induce him to withdraw his 877 candidature is not to say that he himself committed a corrupt practice
Such a statement in an election petition is not an allegation of corrupt practice against the consenting candidate
Hence section 82b does not require that he should be made a party to the petition
We wish to make it clear that we are not to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who consents to a corrupt practice being committed
We do not think it necessary to say anything on that question in this case
Mr Sastri then said that the term gratification in section 123 was very wide and would include the withdrawal of his candidature by a candidate to induce another candidate to stand at an election
He contended that the affording of such a gratification would amount to a corrupt practice within section 123
He submitted that such corrupt practices had been alleged in the petition against Meganathan and Muthu and they should therefore have been made parties to the petition under section 82b
We are wholly unable to agree that the withdrawal of his candidature by a candidate to induce another candidate to stand at an election would be gratification within section 123
But assume it is so
That does not help the appellant at all
Here there is no allegation in the petition that Meganathan and Muthu with drew their candidature in order to induce the appellant to stand at the election so there is no allegation in the petition of corrupt practices having been committed by them by so withdrawing their candidature
It was therefore not necessary to make Meganathan and Muthu parties to the petition under section 82b
Lastly Mr Sastri contended that section 82b talked of allegations of any corrupt practice  and it therefore contemplated any allegation relating to or concerning a corrupt practice
He said that the election petition contained allegations against Meganathan and Muthu relating to a corrupt practice inasmuch as it stated that they accepted the gratifications paid to them to withdraw their candidature and actually withdrew 878 such candidature
Hence he said section 82b required that they should have been made parties to the petition
We are of opinion that when section 82b talks of allegations of corrupt practice against a candidate it means allegations that a candidate has committed a corrupt practice
Allegations can hardly be said to be  against  one unless they impute some default to him
So allegations of corrupt practice against a candidate must mean that the candidate was guilty of corrupt practice
We are also unable to appreciate how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is all allegation relating to a corrupt practice
The acceptance of the gratification does not relate to any corrupt practice for we have earlier shown that the corrupt practice consists in the giving of the gift and riot in the acceptance of it
In the result this appeal fails and it is dismissed with costs
Appeal dismissed


Summary:
The appellant Telco Convoy Drivers Mazdoor Sangh repre sented to the Tara Engineering  Locomotive Co Ltd TELCO demanding that all convoy drivers should be given permanent status and facilities that are available to the permanent employees of TELCO
The Deputy Labour Commissioner refused to make a reference under section 101 of the because of the opinion of the Law Depart ment that there was no relationship of master and servant between TELCO and the convoy drivers
The appellant Sangh flied a writ petition in the High Court praying for a writ of mandamus commanding the State of Bihar to refer the dispute under section 101 of the Act
The High Court dismissed the petition but granted liberty to the appellant Sangh to reagitate the matter before the appropriate Government
On a further representation also the Deputy Labour Commissioner refused to make a reference under section 101 of the Act
Again the appellant Sangh moved a writ petition in the High Court which summarily dismissed the petition holding that the appellants had failed to satisfy that they were employed by the TELCO
Hence this appeal by Special leave
After the conclusion of the hearing the Court being of the view that the Government should be given one more chance to consider the question of making a reference kept the appeal pending and directed the Government to reconsider the question of referring the dispute
Upon reconsideration also the Government refused to make a reference under sec tion 101 of the Act
On the question whether an appropri ate Government exercising power to make a reference under section 101 of the can delve into the 803 merits of the dispute and adjudicate upon the dispute it self
Allowing the appeal and setting aside the judgment of the High Court HELD 1
In considering the question of making a refer ence under section 101 the Government is entitled to form an opinion as to whether an industrial dispute exists or is apprehended
The formation of opinion as to whether an industrial dispute exists or is apprehended is not the same thing as to adjudicate the dispute itself on its mer its
807A 2
While exercising power under section 101 of the Act the function of the appropriate Government is an admin istrative function and not a judicial or quasi judicial function and in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis which would certainly be in excess of the power conferred on it by section 10 of the Act
807F Ram Avtar Sharma vs State of Haryana 1985 3 SCR 686 MP Irrigation Karamchari Sangh vs The State of MP  and Shambhu Nath Goyal vs Bank of Baroda Jullundhur  applied
21 In the instant case the dispute is as to whether the convoy drivers are employees or workmen of TELCO that is to say whether there is relationship of employer and employees between TELCO and the convoy drivers the same cannot be decided by the Government in exercise of its administrative function under section 101 of the Act
Therefore the State Government was not justified in adjudi cating the said dispute
807B 807H 808A 3
There may be exceptional cases in which the State Government may come to a conclusion that the demands are either perverse or frivolous and do not merit a reference
But the Government should be very slow to attempt an exami nation of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudica tion of valid disputes and that to allow the Government to do so would be to render section 10 and section 125 of the Act nugatory
808A C 804 MP Irrigation Karamchari Sangh vs The State of MP  applied
In the instant case in view of the fact that the Government has persistently declined to make a reference and even after reconsideration has adjudicated the dispute itself the dispute should be adjudicated by the Industrial Tribunal
808E The State of Bihar is directed to make a reference of the dispute raised by the Telco Convoy Drivers Mazdoor Sangh to an appropriate Industrial Tribunal under section 101 of the Act
808H 809A Sankari Cement Alai Thozhilalar Munnetra Sangam vs Government of Tamilnadu  Ram Avtar Sharma vs State of Haryana   MP Irri gation Karamchari Sangh vs The State of MP  and Nirmal Singh vs State of Punjab  applied