Case: H. H. Raja Harinder Singh Vs. S.Karnail Singh

anything as election agent". Counsel for the appellant relies on these observations, and argues that on the finding of the Tribunal that the 25 men had been in service for a long time, there could be no question of their having been employed for work in connection with election, and that they were therefore neither election agents nor was the salary paid to them Payment on account of any employment in connection with the election. But then considering the effect of the clerks of the company taking part in the election, Philimore, J. observed:"...... I am certainly inclined to think that if a business man takes his business clerks and employees them for election work which, if he had not business clerks, would be normally done by paid clerks, he ought to return their salaries as part of his expenses".Counsel for respondent strongly relies on these observations. But then, the point was not actually decided by Philimore, J., as the evidence relating to the matter was incomplete, and Piford, J. expressly reserved his opinion on the question. In view of the remarks of Sankey, J. in the Borough of Oxford Case, (1924) 7 OM and 49 at pp. 56-57 (C), in the course of his argument, it is doubtful how far the observations of Philimore, J. quoted above could be accepted as good law. They were, however, adopted in two decisions of the Election Tribunals of this country, to which our attention was invited by Mr. Chatterjee.14. In the Amritsar Case, Hammonds Election Cases 83 (D), the following observation occurs."We also consider that if any men in the service of the respondent were put on election work, their wages for the period should have been shown in the return. (See (1910) 6 OM and H 1 (B))".The words "put on election work", in this passage suggest that the employees had been taken out of their original work. As there is no discussion of the present question, the authority of this decision is, in any event, little. In Farrukhabad Case, Hammonds Election Cases 349 (E), this passage as also the observations of Philimore, J. were quoted, and in accordance therewith, it was held that "the salaries of Tilakdhari Singh, Kundan Singh and Drigpal Singh for the period they worked in connection with the election of the respondent No. 1 should have been shown in the return". It was found in that case that Tilakdhari Singh worked exclusively for 30 days in connection with the election and Kundan Singh and Drigpal Singh would appear to have similarly devoted themselves to election work for certain periods. None of these cases has considered what would amount to employment in connection with election, when the persons had been previously employed on other work; and they throw no light on the present question.15. The position may thus be summed up:(1) For R. 118 to apply, two conditions must be satisfied, viz., there should have been an employment by the candidate of a person in connection with an election, and such employment should have been for payment.(2) Where a person has been in the employment of the candidate even prior to his election and his duties do not include work in election and he takes part in election, whether he is to be regarded as employed in connection with the election will depend on the nature of the work which he performs during the election.(3) When the work which he does in election is casual and is in addition to the normal work for which he has been employed, he is not within R. 118. But if his work in connection with the election is such that he could be regarded as having been taken out of his previous work and put on election work, then he would be within R. 118.(4) Whether a person who has been previously employed by the candidate on other work should be held to have been employed in connection with election is a question of fact to be decided on the evidence in each case.16. In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election. It has been found that they had been in the service of the appellant for long time and that their appointment was not colourable for election purposes. It has also been found that they were not paid anything extra for what work they might have done in connection with the election. But there is no finding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work and put on election work.In the absence of such a finding, it cannot be held that R. 118 had been infringed. It is possible that the Election Tribunal did not appreciate the true legal position and has in consequence failed to record the findings requisite for a decision on R. 118, and that would be a good ground on which we could, if the justice of the case required it, set aside the order and direct the matter to be heard afresh and disposed of by another Tribunal in accordance with law. But we do not consider that this is a fit case for passing such an order. The evidence adduced by the first respondent is very largely to the effect that the appellants men did election work in the morning or in the evening, that is, out of office hours. That shows that the work of the staff was in addition to their normal duties, and on the principles stated above, they could not be held to have been employed in connection with the election. As the first respondent does not appear himself to have understood the true position under R. 118 and has failed to adduce evidence requisite for a decision of the question, he must fail, the burden being on him to establish that that Rule had been infringed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. This argument proceeds on an interpretation of S. 10 of the General Clauses Act which, in our opinion, is erroneous. Broadly stated, the object of the section is, to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday. Now, it cannot be denied that the period of fourteen days provided in R. 119 (a) for presentation of an election petition is a period prescribed, and that is its true character, whether the words used are "within fourteen days" or "not later than fourteen days".That the appellant between these two expressions is without substance will be clear beyond all doubt, when regard is had to S. 81 of the Act. Section 81 (1) enacts that the election petition may be presented "within such time as may be prescribed", and it is under this section that R. 119 has been framed. It is obvious that the rule- making authority could not have intended to go further than what the section itself had enacted, andif the language of the Rule is construed in conjunction with and under the coverage of the section under which it is framed, the words "not later than fourteen days" must be held to mean the same thing as "within a period of fourteen days". Reference in this connection should be made to the heading of R. 119 which is, "Time within which an election petition shall be presented". We entertain no doubt that the Legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that S. 10 is not applicable to petitions falling within R. 119.6. We are also unable to read in the proviso to S. 37 of the Act an intention generally to exclude the operation of S. 10 of the General Clauses Act in the construction of Rules, as that will be against the plain language of R. 2(6). It should be noted that that proviso applies only to S. 30 (c) of the Act, and it is possible that the Legislature might have considered it doubtful whether S. 30 (c) would, having regard to its terms, fall within S. 10 of the General Clauses Act and enacted the proviso ex abundanti cautela. The operation of such a beneficient enactment as S. 10 of the General Clauses Act is not, in our opinion, to be cut down on such unsubstantial grounds as have been urged before us.We are accordingly of opinion that the petition which the respondent filed on May 18,1954 is entitled to the protection afforded by that section and is in time.7. We should add that the appellant also raised the contention that if we agreed with him that the election petition was not presented in time, we should hold that the order of the Election Commission admitting the petition was not one of condonation within the proviso to, S. 85, because that proceeded on the footing that the petition was in time, and did not amount to a decision that if it was not, there were sufficient grounds for excusing the delay. We are not disposed to agree with this contention; but in the view which we have taken that the petition is in time, it is unnecessary to consider it.In our opinion, neither of these contentions is well-founded. Rule 118 does not require that the person engaged by a candidate to work in the election should have been specially employed for the purpose of the election. It is sufficient, on the wording of the Rule, that that person is employed in connection with the election.In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election. It has been found that they had been in the service of the appellant for long time and that their appointment was not colourable for election purposes. It has also been found that they were not paid anything extra for what work they might have done in connection with the election. But there is no finding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work and put on election work.In the absence of such a finding, it cannot be held that R. 118 had been infringed. It is possible that the Election Tribunal did not appreciate the true legal position and has in consequence failed to record the findings requisite for a decision on R. 118, and that would be a good ground on which we could, if the justice of the case required it, set aside the order and direct the matter to be heard afresh and disposed of by another Tribunal in accordance with law. But we do not consider that this is a fit case for passing such an order. The evidence adduced by the first respondent is very largely to the effect that the appellants men did election work in the morning or in the evening, that is, out of office hours. That shows that the work of the staff was in addition to their normal duties, and on the principles stated above, they could not be held to have been employed in connection with the election. As the first respondent does not appear himself to have understood the true position under R. 118 and has failed to adduce evidence requisite for a decision of the question, he must fail, the burden being on him to establish that that Rule had been infringed.