Appeal No 301 of 1959
Appeal by special leave from the judgment and order dated December 10 1958 of the Allahabad High Court in First Appeal No 382 of 1958 arising out of the judgment and order dated August 6 1958 of the Election Tribunal Kanpur in Election Petition No 284 of 1957
N C Chatterjee R K Garg section C Agarwal D P Singh V A Sayid Muhammad Janardan Sharma and M K Ramamurthi for the appellant
A V Viswanatha Sastri and K P Gupta for the respondent
291 1959
November 20
The Judgment of the Court was delivered by SUBBA RAO J
This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad setting aside that of the Election Tribunal Kanpur dismissing the petition filed by the respondent for setting aside the election of the appellant as a member of the Parliament from the Kanpur constituency
In February March 1957 elections were held to fill up a parliamentary seat from the single member constituency No 331 Kanpur
Sri section M Banerji Sri Suraj Prasad and four others were candidates for the said election
The said persons filed their nomination papers between 19th and 29th January 1957
The appellant was employed as Supervisor A  Grade at the Government Ammunition Factory Kirkee and was dismissed from service on January 24 1956 for a reason other than corruption or disloyalty to the state and he was duly qualified to stand for the election
He also filed his nomination paper within the prescribed time and ex facie it complied with all the provisions of the Representation of the People Act 1951 43 of 1951 as amended by Act XXVII of 1956 hereinafter called the Act and did not disclose any disqualifications
The Returning Officer held scrutiny of the nomination papers on February 1 1957
As no objection was taken to the appellant s nomination the Returning Officer accepted it under section 36 of the Act without making any enquiry
The polling took place on March 6 1957 and the result was declared on March 13 1957
The appellant having secured the largest member of votes was declared duly elected
On April 24 1957 the respondent who is one of the voters in the said constituency presented a petition before the Election Commission New Delhi praying that the election of the appellant be declared void
In the petition he alleged ten grounds to sustain his petition
The Election Commission constituted an Election Tribunal in the manner prescribed by the Act and referred the petition to the said Tribunal for trial
On July 17 1957 ie after the prescribed period 292 of limitation of 45 days had expired the respondent filed an application for amendment of the election petition
The amendments sought to be made in the election petition were as follows a In paragraph No 5 clause i  figure 9  between the words under section  and clause  is a typing mistake for figure 33 
In place of figure 9 figure 33  be substituted
b In paragraph No 5d at the end of the paragraph the following sentence be added The nomination paper of the respondent presented before the Returning Officer was not accompanied by a certificate of the Election Commission to the effect that he has not been dismissed for disloyalty or corruption
The improper acceptance of the nomination paper being that of the returned candidate there is a presumption that the result of the election has been materially affected
On August 3 1957 the respondent filed another application for amendment seeking the second amendment in an abbreviated form
The proposed amendment was as follows  b In paragraph No 5d at the end of paragraph the following sentence be added in the petition   and such a certificate did not accompany the nomination paper of the respondent and the acceptance of his nomination paper materially affected the result of the election
 By an order dated August 12 1957 the Election Tribunal dismissed the petition on the round that the amendments sought to introduce a new ground after the prescribed period of limitation and therefore it had no power to allow the same
After dismissing the application the Tribunal took up the main petition for disposal and after recording the findings on the issues raised dismissed the same with costs
Against the said judgment the respondent preferred an appeal under section 116A of the Act to the High Court
Before the High Court the learned Counsel for the respondent withdrew the prayer for amendment of 293 sub paragraph 1 of paragraph 5 of the election petition and confined his relief only to the amendment asked for in paragraph 5d of the election petition ie he sought to bring in the amendment under the head improper acceptance of the nomination paper
The High Court found on the construction of the pleadings that the allegations found in the original petition were sufficient to bring in the case under section 1001di of the Act ie under the head improper acceptance and therefore the amendment asked for was only a clarification but not an introduction of a new ground in the result the High Court set aside the order of the Tribunal and directed it to decide the issues that arose out of the averment made in the amended para
5d of the election petition
The present appeal was filed by special leave against the said judgment of the High Court
The contentions of the learned Counsel Mr N C Chatterjee for the appellant may be briefly put thus The ground for relief in the election petition was based on improper acceptance of the appellant s nomination within the meaning of section 1001di of the Act and no alternative ground tinder sub cliv of cld section 1001 was alleged
There was proper acceptance of the nomination paper and therefore the High Court or the Tribunal had no power to introduce by amendment a new ground namely that the result of the election had been materially affected by the non compliance with the provisions of the Act and particularly when the ground based upon section 33 of the Act
was given up by the respondent
He relies upon for the first proposition on the decision of this Court in Durga Shankar Mehta vs Thakur Raghuraj Singh 1 and for the second on the decision of this Court in Harish Chandra Bajpai vs Triloki Singh 2
Mr A V Viswanatha Sastry the learned Counsel for the respondent contends that the said two decisions were wrongly decided and require reconsideration and that in any event the amendment asked for clearly falls within the scope of the later decision
He 1 1955 1 SCR 267
2  38 294 further contends that on a fair reading of the relevant allegations in the petition as originally presented it would be clear that the respondent stated all the necessary facts to sustain the ground he had taken in the amendment petition and that by the amendment he was only seeking to clarify the said ground
In any view he argues that the appellate Court on a careful construction of the pleadings has held that the petition in substance disclosed the said ground and the question of correctness of the said decision does not legitimately fall within the discretionary jurisdiction of this Court under article 136 of the Constitution
At the outset the relevant provisions of the Act may be noticed
The said provisions read section 9 3   If any question is raised as to whether a person who having held any office referred to in clause f of section 7 has been dismissed is disqualified under that clause for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State the production of a certificate issued in the prescribed manner by the Election Commission to the effect that such person has not been dismissed for corruption or disloyalty to the State shall be conclusive proof that he is not disqualified under that clause
 section 33 3  Where the candidate is a person who having held any office referred to in clause f of section 7 has been dismissed and a period of five years has not elapsed since the dismissal such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State
 section 36  1 On the date fixed for the scrutiny of nominations under section 30 the candidates their election agents one proposer of each candidate and one other person duly authorized in writing by each candidate but no other person  may attend at such 295 time and place as the returning officer may appoint and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33
2 The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion after such summary inquiry if any as he thinks necessary reject any nomination on any of the following grounds a    b that there has been a failure to comply with any of the provisions of section 33 or section 34 or c    section 100 1 Subject to the provisions of sub section 2 if the Tribunal is of opinion    d that the result of the election in so far as it concerns a returned candidate has been materially affected i by the improper acceptance of any nomination or iv by any non compliance with the provisions of the Constitution or of this Act or of any other rules or orders under this Act the Tribunal shall declare the election of the returned candidate to be void
The foregoing provisions so far relevent to the present enquiry may be summarised thus If a candidate has been dismissed from Government service and a period of five years has not elapsed since dismissal  he will have to file along with the nomination paper a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State
If it has not been done the Returning Officer either suo motu or on objections raised by the opposite party has to reject the nomination
If the nomination paper does not disclose any such defect and if the 296 Returning Officer has no knowledge of that fact he has no option but to accept the nomination
The Returning Officer may improperly accept a nomination paper though it discloses the said defect and though an objection is raised to its reception on that ground
Section 1001di of the Act deals with improper acceptance of any nomination and section 1001div permits an attack on the ground among others of non compliance with the provisions of the Act
Before we consider the contentions of the parties it would be convenient to appreciate the true scope of the two decisions of this court in the light of the arguments advanced by the learned Counsel
The first decision is in Durga Shankar Mehta vs Thakur Raghuraj Singh 1
This decision turns upon the provisions of sub section
1c and sub section 2c of section 100 of the Representation of the People Act 1951 before it was amended by Act XXVII of 1956
Sub section
1c and sub section
2c in so far as they are material to the present discussion correspond to section 1001di and section 1001div respectively of the amended Act
This case arose out of an election held in December 1951 for the double member Lakhnadon Legislative Assembly Constituency in Madhya Pradesh one of the seats being reserved for Scheduled Tribes
The appellant and respondents 1 35 and 7 therein were duly nominated candidates for the general seat in the said constituency while respondents Nos 2 4 and 6 were nominated for the reserved seat
No objection was taken before the Returning Officer in respect _of the nomination of either the appellant or respondent No 2
The appellant and respondent No 2 were declared elected to the general and reserved seat respectively
The respondent No 1 filed an election petition against the appellant and the other respondents for setting aside the election as wholly void
One of the allegations was that the respondent No 2 was at all material times under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under article 173 of the Constitution
The Election Tribunal held that the 1 1955 1 SCR 267 297 acceptance by the Returning Officer of the nomination of respondent No 2 amounted to an improper acceptance of nomination within the meaning of section 1001c of the Act and on that ground declared that the entire election was void
The candidate who was elected to the general seat preferred an appeal to this Court and contended that his nomination had been properly accepted by the Returning Officer and therefore if respondent No 2 was not duly qualified to be elected his election alone should be declared void on the ground that such disqualification shall fall under sub section 2c of section 100 and not under sub section
1c thereof This Court accepted the contention and in that context defined the import of  improper acceptance  within the meaning of section 1001c of the Act
Mukherjea J as he then was delivering the judgment of the Court observed at p 277  If the want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll but is a matter which could be established only by evidence an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination
The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination
But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination the Returning Officer has no other alternative but to accept the nomination This would be apparent from section 36 subsection 7 of the Act  
The learned Judge proceeded to state at p 278  It would have been an improper acceptance if the want of qulification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him
When neither 298 of these things happened the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance This judgment therefore is a clear authority for the proposition that if the want of qualification does not appear on the face of the nomination paper and if no objection is raised on that ground before the Returning Officer the acceptance of the nomination must be deemed to be a proper acceptance
Mr AV Viswanatha Sastry the learned Counsel for the respondent attacks the correctness of this decision
Broadly stated his criticism is that the proceedings before the Returning Officer are summary proceeding and that the election petition is not an appeal from the order of the Returning Officer but is an original petition seeking to set aside the election and that in such a petition the aggrieved party has the right to seek to set aside the election on all or any of the grounds mentioned in section 100 of the Act and that as one of the grounds is the improper acceptance of the nomination paper he could establish by evidence that the acceptance of the nomination by the Returning Officer was in the derogation of the statutory provisions such as those relating to the absence of qualification in the candidate or the filing of his nomination paper unaccompanied by a certificate within the meaning of section 333 of the Act
In support of this contention reliance is placed upon another decision of this Court in Veluswami vs Raja Nainar 1
The point raised and decided in that case was whether an enquiry before the Election Tribunal was not restricted to the material placed before the Returning Officer relating to a ground but all evidence bearing on that ground could be adduced before that Tribunal
There unlike here at the time of scrutiny of the nominations objection was taken to the nomination of the candidate on the ground that he was the Head Master of the National Training School Tiruchendur which was a Govern ment aided school and therefore be was disqualified under section 7 cls
d and e of the Act
The Returning 1  299 Officer upheld the objection
In a petition to set aside the election the returned candidate pleaded that the candidate whose nomination was rejected was not qualified to be chosen not merely on the ground put forward before the Returning Officer but also on other grounds
This Court held that
it is open to a party to put forward all grounds in support or negation of the claim subject only to such limitations as may be found in the Act notwithstanding that some of the grounds were not taken before the Returning Officer
The reason for the decision is found at p 426 and it reads   An election petition is an original proceeding instituted by the presentation of a petition under section 81 of the Act  
All the parties have the right to adduce evidence and that is of the essence of an original proceeding as contrasted with a proceeding by way of appeal
That being the character of the proceedings the rule applicable is that which governs the trial of all original proceedings that is it is open to a party to put forward all grounds in support of or negation of the claim subject only to such limitations as may be found in the Act The learned Judge elaborated the point at a subsequent stage of the judgment thus  The enquiry which a returning officer has to make under section 36 is summary in character
He may make  such summary enquiry if any as he thinks necessary  be can act suo motu
Such being the nature of the enquiry the right which is given to a party under section 1001c and section 1001di to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory if the Tribunal is to base its decision only on the materials placed before the returning officer
 When the attention of the Court was invited to the decision in Durga Shankar Mehta vs Thakur Raghuraj Singh1 the Court distinguished that decision in the following manner  This is not a direct pronouncement on the point now in controversy and that is conceded 1 1955 1 SCR 267
300 The two decisions can stand together and they deal with two different situations  in the former no objection was raised at all to the nomination while in the latter an objection was raised on the ground of disqualification but in the election petition additional grounds of disqualification were alleged and sought to be proved one is concerned with a case of improper acceptance and the other with a case of improper rejection
Though some of the observations in the later decision may well have been advanced to come to a contrary conclusion in the earlier decision Venkatarama Ayyar J who was party to both the decisions distinguished the earlier one on the ground that it was not a direct pronouncement on the question raised in the later
The earlier decision is that of five Judges but the later is of three Judges
The learned Judges who decided the later case did not see any conflict between their decision and that of the earlier one
Though there is some force in the argument advanced by Mr A V Viswanatha Sastry and if it were res integra some of us might be inclined not to agree with the reasoning and the conclusion of the earlier judgment this Court is bound by its earlier decision and we do not see any justification to refer the question to a larger bench particularly as we have come to the conclusion that the High Court was not justified in interfering with the order passed by the Tribunal in its discretion disallowing the material amendment
The second case is a decision of four Judges and it defines the powers of the Election Tribunal in the matter of amendment of pleadings
This decision also turns upon the relevant provisions of Act 43 of 1951 before it was amended by Act 27 of 1956
Section 833 of the Act before the amendment corresponds to section 905 of the amended Act
In other respects so far as it is material to the question raised no change has been introduced in the other relevant sections
In this case the respondent in the appeal filed an election petition challenging the election of the appellants to the UP Legislative Assembly on the ground that they had committed corrupt practices the material 301 allegations being i that the appellants  could in the furtherance of their election enlist the support of certain Government servants  and ii that the appellant No 1 had employed two persons in excess of the prescribed number for his election purposes
No list of particulars of corrupt practices was attached to the petition
Long after the period of limitation prescribed for the filing of election petitions the respondent applied for amendment of his petition by adding the names of certain village Headmen Mukhias as having worked for the appellants and later on becoming their polling agents
The Election Tribunal allowed the amendment on the ground that the allegations sought to be introduced by the amendment were mere particulars of the charge already made
Holding that corrupt practice had been committed by the appellants it declared their election void under section 1002b of the Act
The appellants preferred an appeal against that order to this Court and contended that the Election Tribunal had no power either under section 833 of the Act or under Order VI rule 17 of the Code of Civil Procedure to allow the amendment
In that context this Court elaborately considered the scope of the power of the Election Tribunal to amend the pleadings in an election dispute and summarized its views in the following two propositions at p 392  1 Under section 833 the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended provided the petition itself specifies the grounds or charges and this power extends to permitting new instances to be given
2 The Tribunal has power under 0
VI r 17 to order amendment of a petition but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition if a fresh petition on those allegations will then be barred
 On the basis of those propositions this Court held that the petition as originally presented did not allege that the appellants had committed corrupt practices and therefore that the allegations sought to be introduced 39 302 by the amendment namely that two village Headmen section worked for the appellants and later on became their polling agents so radically altered the character of the petition as originally framed as to make it practically a new petition and so it was not within the power of the Tribunal to allow amendments of that kind
Even if the Tribunal had the power under 0
VI r 17 of the Code of Civil Procedure to permit an amendment raising a new charge the Court held that it did not under the circumstances exercise a sound and judicial discretion in permitting the amendment in question
It may be noticed that in that case the question turned upon the construction of section 83 sub sections
2 and 3 of the Act
Though in that case this Court was concerned with the powers of an Election Tribunal to amend the petition beyond the period of limitation the discussion of the Court covered a wider field presumably because the Court intended to settle the principles governing the power of Election Tribunals to amend pleadings with a view to prevent confusion and to stabilize the procedure
This Court rejected the argument that 0
VI r 17 of the Civil Procedure Code does not apply to election petitions
It was observed at p 389  We are accordingly of opinion that the application of 0
VI r 17 Civil Procedure Code to the proceedings before the Tribunal is not excluded by section 833
 It was contended for the appellant in that case that even if section 833 of the Act did not exclude the application of 0
VI r 17 Civil Procedure Code to the proceedings before the Tribunal the exercise of the power under that rule must nevertheless be subject to the conditions prescribed by section 81 for presentation of an election petition that one of those conditions was that it should be presented within the time allowed therefor and that accordingly no amendment should be allowed which would have the effect of defeating that provision
After considering the English decisions on the statutory provisions which are pari materia with our enactments the Court held that the Election Tribunal had no power to permit a new ground to be 303 raised beyond the time of limitation prescribed by section 81 of the Act
Mr A V Viswanatha Sastry contended that the learned Judges having rightly conceded the power of the Election Tribunal to amend the pleadings under 0
VI r 17 Civil Procedure Code went wrong in limiting that power in the way they did and that the reason advanced by them in limiting that power equally applies to the pleadings in a suit for it is said under the Indian Limitation Act every suit filed beyond the prescribed period of limitation shall be dismissed although limitation has not been set up as a defence
There is no doubt some force in this contention but this argument was presumably advanced before the learned Judges and was negatived on the following ground stated at p 392  The Tribunal sought to get over this difficulty by relying on the principle well established with reference to amendments under 0
VI r 17 that the fact that a suit on the claim sought to be raised would be barred on the date of the application would be a material element in deciding whether it should be allowed or not but would not affect the jurisdiction of the court to grant it in exceptional circum stances as laid down in Charan Das vs Amir Khan 1
But this is to ignore the restriction imposed by section 902 that the procedure of the court under the Code of Civil Procedure in which 0
VI r 17 is comprised is to apply subject to the provisions of the Act and the rules and there being no power conferred on the Tribunal to extend the period of limitation prescribed an order of amendment permitting a new ground to be raised beyond the time limited by section 81 and r 119 must contravene those provisions and is in consequence beyond the ambit of authority conferred by section 902
 This passage indicates that the learned Judges were aware of the argument now advanced and for the reason mentioned by them namely that unlike a civil suit wherein the Court can extend the period of limitation in a proper case the Tribunal has no such power rejected the argument
We are bound by this decision 1 1920 LR 47 IA 255
304 As this stage we must guard against one possible misapprehension
Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations and undue emphasis on technicalities or enlarging their scope would cramp their powers diminish their effectiveness and defeat the very purpose for which they are constituted
We must make it clear that within the limits prescribed by the decisions of this Court the discretionary jurisdiction of the Tribunals to amend the pleadings is as extensive as that of a civil Court
The same well settled principles laid down in the matter of amendments to the pleadings in a suit should also regulate the exercise of the power of amendment by a Tribunal
This aspect has not been ignored by this Court in the aforesaid decision and the Court observed at p 394  It is no doubt true that pleadings should not be too strictly construed and that regard should be had to the substance of the matter and not the form
 The foregoing discussion yelds the following results 1 Sub cls
i and iv  of section 10011d of the Act provide for two distinct grounds the former for the case of improper acceptance of any nomination and the latter for that of non compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act 2 when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination the acceptance of the said nomination by the Returning Officer must be deemed to be proper acceptance  3 even if there is a proper acceptance it is open to the petitioner to question the validity of the election under section 1001div on other grounds namely that the candidate whose nomination was accepted was not qualified at all or could not be deemed to be duly nominated as a candidate for the reason that he did not comply with the provisions of section 333 of the Act and 4 if the second ground in substance is not taken in the petition substance is more important than form the Tribunal has no power after the prescribed period of limitation for the filing 305 of the petition to allow an amendment introducing the second ground
With this background we shall proceed to scrutinize the pleadings in the light of the rival contentions
The election petition contains seven paragraphs
The relief claimed is that the election of the appellant from the parliamentary constituency No 331 Kanpur be declared void
The first paragraph gives the credentials of the petitioner to enable him to file the petition
Paragraphs 2 and 3 give the sequence of events which ended in the declaration of the appellant as duly elected from the constituency to the Parliament
Paragraph 5 states that the election of the appellant is void and is liable to be set aside on the ten grounds among others specified therein
Paragraph 6 states that the cause of action accrued to the petitioner on or about January 29 1957 when the nomination papers were filed for the said election and subsequent thereto
Now coming to the grounds in sub paraa b and c of para 5 it is stated that the appellant had been dismissed by Government from service on charges of disloyalty and gross misconduct on January 24 1956 but he did not submit to the aid order and filed a writ petition in the High Court at Calcutta questioning the validity of the said order that under the circumstances he should be deemed to be a Government servant and therefore he was not competent to be nominated as a candidate for election to Parliament
Sub paragraph d is the most important paragraph to the present enquiry and therefore it may be extracted in full
It reads  That apart from the above mentioned reasons the nomination paper of the respondent was also improperly accepted by the Returning Officer in asmuch as the respondent having been dismissed from Government Service did not obtain a certificate in the prescribed manner from the Election Commission to the effect that he had not been dismissed for corruption or disloyalty to the State This sub paragraph in clear and unambiguous terms raises the ground of improper acceptance of the nomination paper by the Returning Officer ie the ground 306 covered by section 1001di of the Act
The reason for sustaining the said ground is stated to be that having been dismissed from Government service he did not obtain a certificate in the prescribed manner from the Election Commission
Ex facie this sub paragraph does not refer to section 333 or to the contents of that sub section
A nomination paper may be accepted by the Returning Officer in spite of one or other of the following two defects i the candidate who has been dismissed may have filed the nomination paper without its being accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed from service for corruption or dis loyalty to the State vide section 333 and ii the candidate has been disqualified for being chosen as a member of Parliament vide section 93
In this subparagraph in support of the ground that the nomination of the appellant was improperly accepted reference was made to the second defect and not to the first
That this must have been the intention of the respondent is also made clear from the circumstance that in sub para i reference was made to the latter sub section but not to the former
The argument that the opening words of sub para d  That apart  indicate that this is a ground in addition to the ground based on the non obtaining of a certificate in the prescribed manner and therefore should only refer to the non accompaniment of a certificate has no force for sub paras a b and c which precede sub para d raise a different point altogether namely that notwithstanding the dismissal as the appellant had filed a petition in the High Court questioning the validity of the order of dismissal he was still a Government servant on the crucial date
Be it as it may the important point to be noticed is that sub paragraph d raises a ground under sub cl
i and not under subcl
iv of section 1001d of the Act and even if the facts mentioned therein are disannexed from the ground they refer only to the disqualification of the appellant to stand as a candidate for the election and not to the procedural defect covered by section 333 of the Act
Subparagraphs e f and g relate to the objections 307 which are not material for the present inquiry
Sub paragraph h contains a general statement that the appellant was disqualified to be chosen to fill the parli mentary seat
Sub paragraph i specifically refers to section 93 of the Act
We are not also concerned with the allegations in sub para j
The foregoing analysis of the allegations in the petition so far as they are relevant to the question raised discloses the following two circumstances  i the ground taken in the petition was that there was an improper acceptance of the nomination covered by section 1001di for the reason that the appellant having been dismissed from Government service did not obtain a certificate in the prescribed manner and ii there was no ground which would fall under sub cl
iv of section 1001d of the Act
viz that the appellant was not to be deemed to be duly nominated as a candidate as his nomination paper was not accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he had not been dismissed for corruption or disloyalty to the State
In the application for amendment which was filed after the prescribed period of limitation two amendments were asked for one to sub para i of para 5 and the other to sub para d thereof
The former was for substituting the figure  33  for the figure  9  and the latter to introduce a statement in that paragraph to the effect that the nomination paper was not accompanied by the prescribed certificate
The subsequent petition as we have already noticed sought for the same amendment to para 5d in an abbreviated form
But what is important to notice is that even the proposed amendment sought to bring in the said statement under the ground of improper acceptance and not under section 1001di of the Act
The appellant filed a counter affidavit opposing both the amendments
The Tribunal noticed the judgment of this Court and applied the principles laid down therein to the facts before it
It also considered in detail the allegations in the petition and arrived at the following findings i  All what has been urged throughout is that the respondent was a Government servant or a 308 dismissed Government servant and no certificate having been obtained from the Election Commission about his dismissal not being for corruption or disloyalty he was not eligible for election as a candidate to the House of the People  and ii sub section 3 of section 33 which is a provision laying down a certain procedure was never in the mind of the petitioner while the petition was being drafted or prepared and that is why we find no reference to the certificate not being filed with the nomination paper He concludes his discussion thus  It would thus be seen that the amendment sought by the petitioner offends against the conditions laid down by their lordships of the Supreme Court in Harish Chandra Bajpai vs Triloki Singh 1 relating to the application of Order VI rule 17 of the Civil Procedure Code to proceedings before an Elettion Tribunal
It has been specifically laid down that an amendment will not be allowed if the effect of it be to permit a new ground or charge to be raised or to so alter its character as to make it in substance a new petition
That would exactly be the effect of the amendment sought by the petitioner It will be seen therefore that the Tribunal has put before itself the correct principles governing its powers of amendment and found on a construction of the allegations in the petition that by the proposed amendment the respondent was seeking to introduce a new ground after the period of limitation
This order was made by the Tribunal in the exercise of its discretion in strict conformity with the principles laid down by this Court
The next question is whether the High Court was justified in setting aside that order
It was argued before the High Court that the amendment application was wrongly refused and that even as the election petition stood without the amendment it contained sufficient averment of facts to make out a ground under section 1001di of the Act and in the alternative that it made out a ground under section 1001div of the 1 1957 SCR370
309 Act
Before the High Court the learned Counsel for the respondent withdrew his prayer for the amendment of sub para1 of para 5 of the election petition with the result the only paragraph on which reliance was placed by the respondent was sub para d of para 5
The High Court also noticed the judgment of this Court in Harish Chandra Bajpai s Case 1 and posed the following question for its decision  The important thing is whether in substance the petition contains the particular ground of attack or not
 It proceeded to consider whether the original subpara d of para 5 contained any ground and if so what and whether a new ground was sought to be raised in the garb of an amendment
After reading the said sub para it expressed the view that the ground in its opinion would fall under section 1001di of the Act and that conclusion was based on the allegations in the said sub para that there was an improper acceptance of the nomination and that the appellant had not obtained the necessary certificate from the Election Commission
It has stated that in the circumstances of the case the respondent meant to state that as the certificate had not been obtained it could not have accompanied the nomination paper
The learned Judges of the High Court concluded their discussion thus  We also think that the Tribunal should have permitted the amendment because the ground of attack had been clearly made out and the only mistake committed by the appellant was not to put it in proper words In short the view of the High Court was that sub
para d contained the ground under section 1001di of the Act and what was asked for by way of amendment was only a clarification of that ground
The High Court in our view has missed the real point raised before it
We have already pointed out that in view of the judgment of this Court in Durga Shankar Mehta s Case 2there was no improper 1  2 1955 1 SCR 267
40 310 acceptance of the nomination paper by the Returning Officer
for the nomination paper ex facie did  not disclose any defect or disqualification
The petition for amendment asked for inserting a statement in sub para d of para 5 under the ground of improper acceptance of the nomination paper viz that the prescribed certificate did not accompany the nomination paper of the candidate and that at the appellate stage the other proposed amendment based upon section 333 of the Act was given up
The result was that no relief for raising the ground under section 1001div had survived and that the ground under section 1001di was not open to the respondent
In the circumstances the amendment would be foreign to the scope of the enquiry under the ground governed by section 1001 di of the Act
That apart could it be said that the High Court was justified in the circumstances of this case to interfere with the discretion of the Tribunal  An appellate Court has no doubt an unquestioned right to review or modify the order made by a subordinate Court but it is undesirable to do so when the subordinate Court made an order in the exercise of its discretion without exceeding the limits of its power unless it acted perversely or unless the view taken by it is clearly wrong
In this case the Election Tribunal neither exceeded its powers nor acted perversely and indeed its order advanced the cause of justice in that it helped to maintain the election of a candidate who was duly qualified and who secured a large majority of votes over all the rival candidates
We have carefully considered the reasons set out in the judgment of the High Court in support of its decision that the amendment should have been allowed by the Tribunal and in our opinion the said reasons are unsatisfactory and on some points farfetched
In the circumstances we do not see any justification after the entire petition was disposed of for the High Court to interfere with the said discretion
We therefore set aside the order of the High Court
It is represented to us by the learned counsel for the appellant that in the High Court the only 311 point argued was that the amendment should have been allowed and no other point was pressed
The learned counsel for the respondent does not accept this position
In the circumstances we have no other option but to remand the case to the High Court for disposal in accordance with law
The respondent will pay the costs to the appellant
Appeal allowed


Summary:
A company dismissed from its service four of the appellants for taking part and instigating others to join in an illegal slowdown strike in the Hot Mill Section of its works which were a public utility service
On such dismissal the slow down strike however gained strength
The company thereupon issued a notice dated April 8 1953 to the workers of the Hot Mill that unless they voluntarily recorded their willingness to operate the plant to its normal capacity before 2 pm of April 10 they would be considered to be no longer employed by the company
As a result forty workers recorded their willingness but the rest did not make any response at all
The company then issued a second notice dated April 25 stating inter alia that the Workers who did not record their willingness to work the plant to its normal capacity in terms of the previous notice dated April 8 had been considered to be no longer in service and their formal discharge 320 from the company s service had been kept pending in order to assure to the fullest that no one who wanted to work normally was being discharged on circumstantial assumptions and calling upon the workers to record their willingness by April 28 1953 to operate the plant to its normal capacity and further intimating that failing this their names would be removed from the company s rolls and their discharge would become fully effective with all the implications of a discharge
After this notice the entire body of workers of the works except those engaged in the essential services went on strike Thereafter the company with the sanction of the Government filed a complaint under section 27 of the Industrial Disputes Act against the appellants for having instigated and incited others to take part in an illegal strike
The appellants were convicted
The appellants challenged the said conviction under section 27 of the Act contending that the strike was not illegal as the strike had been in consequence of an illegal lock out declared by the company by the said notices dated April 8 and April 25
The appellants further contended that the notices did not effect a discharge but declared a lock out and that even if the notices did effect a discharge then also there was a lock out for a discharge is equally a lock out
Finally the appellants challenged the propriety of the sanction under section 341 of the Act to make the complaint as the sanction did not on the face of it refer to the facts constituting the offence
Held that on a construction of the notices they bad the effect of discharging the workmen and did not amount to a declaration The removal of the name of a worker from the Roll of the company was a formality which the notices said had been kept pending and this did not prevent the discharge having taken effect
The words  refusal by an employer to continue to employ any number of persons employed by him  in section 21 do not include the discharge of an employee
Held further that sanction under s 341 of the Act would be good if it was proved by evidence that it had been granted after all the necessary facts had been placed before the sanctioning authority though the facts were not stated on the face of the sanction itself
Presidency Jute Mills Co Ltd vs Presidency Jute Mills Co Employees Union 1952 IAC 62 approved Gokalchand Dwarkadas Morarka vs The King 1948 LR 75 IA 30 discussed