Dr. Y. S. Parmar v. Sh. Hira Singh Paul and Another

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 410of1958. Appeal by special leave from the judgment and order dated July 31, 1958, of the Judicial Commissioner's Court, Himachal Pradesh at Simla in Civil Misc. First Appeal No. 2 of 1958. K. L, Misra, Advocate-General for the State of U. P. and S. S. Shukla, for the appellant. Achhru Ram and Ganpat Rai, for respondent Nu. I. 1958. October 17. The Judgment of the Court was delivered by sa,ka' J. SARKAR, J.-This appeal arises out of an election petition filed by the respondent No. l, Hira Singh Paul, whom we shall hereinafter refer to as the respondent. The other respondent to this appeal is the Election Commission, but it has not appeared presumably because it is not interested in the result of the 11 ppcal which involves no claim against it. The only question that it involves is whether tl\e appellant was guilty of a corrupt practice, the details of which will be set. out later, within the meaning of s.

123(7) of the Representation of the People Act, 1951. In the 1957 General Elections, ten candidates filed . their nomination papers to contest the election from the l\fahasu double member constituency in Himachal . Pradesh. One of the two seats for this constituency was reserved for a scheduled caste candidate. Two I95B of the candidates withdrew from the contest and the , ht t t th II Th • ht • I d Dr. Y. S. Parmar rema.mmg e1g wen o e po . ese eig me u - ed the appellant, the respondent and one Nek Ram. sh. m:: s>ngh Nek Ram was declared elected to the reserved seat Paul and Another and the appellant to the general seat. 'The respondent polled the next largest number of votes to the Sarkar J. appellant. After the results had been declared the respondent filed the election petition on August 3, 1957, challenging the validity of the election of the appellant on the ground that he had committed various corrupt practices.

The Election Tribunal framed 18 issues in respect of the various corrupt practices alleged in the petition but answered all the issues excepting issues Nos. 8(i), 8(ii) and 11 against the respondent. Issue No. 8(i) raised the question whether one Amar Singh, said to be a member of the armed forces of the Union of India, worked and canvassed for the appellant. Issue No. 8(ii) was whether Amar Singh was appointed his polling agent by the appellant. Issue No. 11 was in the following terms : In case one or more of Issues Nos. (8) to 10 is or are decided in the affirmative, whether the respondent No. 1 obtained, procured or abetted or attempted to obtain, procure by himself, by his agents and by his supporters the assistance of the Government servants as specified under the said issues for the furtherance of the prospects of his election ? The Tribunal found against the appellant on Issues X os. 8(i), 8(ii) and 11 and thereupon declared his election void.

The appellant then went up in appeal to the judicial Commissioner, Himachal Pradesh, who by his judgment dated July 31, 1958, set aside the finding of the Tribunal on Issue No. 8(i) but maintained its findings on the other two issues and confirmed the declaration tha.t the appellant's election was void. The appellant has come up to this Court by special leave in appeal against that judgment. As will have been seen from what has been earlier stated the only questions ' 958 that survive are those raised by Issues Nos. 8(ii) v,. Y. s. P•,m•' a.nd 11. The facts are not now in disput.e and may be stated Sh. m,. Singh as follows: The constituency was divided into 606 Pa1<1 ••d Anothu polling station~ and for each polling station three polling agents could be appointed. The appellant was Sarkar ]. thus entit e to appoint 1818 polling agents.

On April 28, 1957, he signed a very large number of the forms prescribed by the rules framed under the Act for appointing polling agents, in blank and without setting out therein the name of any polling agent, as he had not then been able to make up his mind in view of the large number of polling stations as to who would be his polling agents at the various polling stations. He made over these forms to Kalyan Singh, who passed on three of them to Kashmira Singh having inserted therein the words "polling station No. 13, Sheopur ". Kashmira Singh filled in the name of Amar Singh as the polling agent in one of these forms on May 25, 1957, the day of polling, and made it over to the latter to enable him to act as the appellant's polling agent at polling station No.13, Sheopur. Amar Singh then duly signed the form as required by the rules and filed it with the presiding officer at polling station No. 13, Sheopur, and on the strength of it, acted as the polling agent of the appellant at that station for about two hours when objection having been taken to him on th'.e ground that he was a member of the armed forces, he withdrew and left tho polling station.

Amar Siugh was on the polling day in fact a member of the armed forces though this was not then known to the appellant. Kalyan Singh and Kashmira Singh acted in all that they <lid, under the authority of the appellant. These facts may be taken to have been established on the evidence adduced. The learned Advocate"General of Uttar Pradesh who appeared for the appellant, first sought to contend that Amar Singh had not really been appointed the appellant's polling agent. He said that under s. 46 of the Act a polling agent can be appointed only by the candidate himself or by his election agent and Amar Singh could not on the facts found, for reasons to he stated presently, be said to have been appointed a r958 polling agent either by the appellant or his election t Th t h' h h d Dr. Y. . Parmar agen . ere1ore, accor mg o 1m, mar mg not been appointed the appellant's polling agent at Sit.

Hira Singh all and hence the charge of corrupt practice against Paul and Another him for having so appointed Amar Singh must fa.ii. First, it seems to us that this argument is not open Sarkar J. to the learned Advocate-Genel'al. He himself appeared for the appellant before the learned J udicia.l Commissioner and there conceded that the factum or the validity of the appointment of Amar Singh a.s the appellant's polling a.gent could not be questioned by him. We do not think that we should permit the appellant to withdraw a. concession expressly made by his counsel in the Court below in a matter of ; this kind. This is all the more so as the present argument does not seem to have been raised when the matter was before the Tribunal, either. Secondly, it seems to us that the contention is without substance.

We will assume that the learned Advocate-General is right in bis contention that under the Act a polling a.gent can be appointed only by the candidate himself or by his election agent and not by the candidate acting through any other a.gent. The learned Advocate-General's contention is that on the facts found, the only possible conclusion is that Amar Singh had not been appointed polling agent by the appellant himself but by one or other of his a.gents, namely, Kalya.n Singh · or Ka.shmira. Singh and as none of them was his election agent, the appointment was invalid. It is not in dispute that neither Kalya.n Singh nor K ashmira Singh was his election a.gent; In fact it appears that the appellant had no election agent at all. In our view, however, this does not matter as the present is not the case of an appointment by any agent but by the appellant himself. We have come to this view because here, the appointment was ma.de by the document signed personally by the appellant.

The fac' that the name of the polling agent was written in the document by another person after the appellant had signed it, does not make the appointment of the polling a.gent under 28 r958 that document an appointment by some other person acting as the agent of the appellant. On the language Dr. Y. S. Parmar f th d d th t v o e ocument-an e appom men was not pur- Sh. Hir;, Singh ported to have been made in any other way than by Paul and Another the document-it was an appointment made by the appellant himself. The other person only wrote the Sarkar J. name in the document which he had authority to do. He did not purpurt to make any appointment at all. It is impossible to read the docu'ment as the making of the appointment by an agent of the appellant acting for him. The true view of the matter plainly is that the appellant himself appointed by the document as his polling agent, a person whose name had been written therein by another with his authority.

We, therefore, hold that Amar Singh had been appointed his polling agent by the appellant himself. It was thus even on the learned Advocate-General's construction of s. 46, a proper appointment. We then come to this that the appellant appointed Amar Singh, a member of the armed forces, his polling agent and the latter acted as such. The question is, Did this amount to a corrupt practice by the appellant ? The respondent's contention which has been accepted by the Courts below, is that it is a corrupt practice within s. 123(7) of the Act. That provision so far as is relevant and the explanation to it, are in these terms : Section 123. The following shall be deemed to be corrupt practices for the purposes of this Act :- (7)

The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely :- (c) members of the armed forces of the Union; Explanation.- ( 1) ............................................ . (2) ]for the purposes of clause (7), a person shall be <lcemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent, or D Y ~, a polling agent or a counting agent of that candidate. annar The learned Advocate-General contends that the sh.

IJira Sf:ngh procuring or obtaining by a candidate of any assistance Paul and Another for the furtherance of the prospects of his election from a person in the service of the Government as a member Sarkar J. of the armed forces, would not amount to a corrupt practice unless that candidate knew that the person was in such Government service. He says that the words ' procuring or obtaining ' import such know ledge and that this view of the matter receives great strength from the word 'for' in the phrase "for the furtherance of the prospects of that candidate's election ". According to him, without such knowledge the candidate cannot be said to have procured or obtained any assistance, for no one can obtain or procure a thing unless he knows that he is doing so. He then points out that there is evidence that neither the appellant nor Kalyan Singh nor even Kashmira Singh knew that Amar Singh was a member of the armed forces.

He, therefore, says that the appellant cannot in the absence of such knowledge be said to have procured or obtained the assistance of a member of the armed forces for furthering the prospects of his election. It is true that neither the appellant nor Kalyan Singh, nor even Kashmira Singh knew at the date of the appointment of Amar Singh that he was a member of the armed forces but the point now raised by the learned Advocate-General is, in our view, none the less unsustainable. It overlooks the provisions of the second explanation to the section which we have already set out. Under that explanation if a person acts as the polling agent of a candidate it must be held without more, that he assisted in furtherance of the prospects of thet candidate's election. In the present case therefore it has to be held that Amar Singh who acted as the appellant's polling agent, thereby assisted in the furtherance of the prospects of his election.

Now under the provisions of the Act, no one can act as the polling agent of a candidate unless he has been appointed as such and we have already held that the appellant r95B himself had appointed Amar Singh &s his polling Y ~r agent. It follows in view oft.he explanation that the '· · ·;. .,,,,., appellant procured and obtained the assistance of sh. HiYa Singh Amar Singh for the furtherance of the prospects of his Paul ""d Anoth" election. All the requirements of the section are thus satisfied and the appellant must therefore be held to Sa.Aa• f. have committed the corrupt practice thereby constituted. All that the section requires is that assistance shall be procured for furthering the election.

Where the explanation applies as it does in the present case, if a candidate has appointed a person to act. as his polling agent and he accordingly does so act, a statutory presumption arises that the candidate thereby procured that person's assistance in furtherance of the prospects of his election, and this irrespective of whether he intended to procure such assistance or not. Indeed, as Mr. Achhru Ram appearing for the respondent pointed out, the explanation clearly shows that the candidate's intention is irrelevant, for, such presumption arises even when a candidate has procured another person to a.ct as his counting agent and it is very difficult to imagine that the appointment of a counting agent can further the prospects of any election, for the counting agent acts after the polling .is over and only when the votes already polled, a.re counted.

Therefore it seems to us that in the case of the appointment of a polling agent which comes within the explanation as the present case does, the intention of the candidate in procuring the assistance is irrele- ,vant. If that is so, it is clear that the knowledge of the candidate whether the person, whose service as his polling agent he hasprocured, is a member of the armed forces or any of the other specified class of Government servants or not, is equally irrelevant. We think therefore that the learned Advocate-General's contention must fa.ii. \Vhat we have said just now also disposes of the other argument of the learned Advocate-General, namely, that a corrupt practice is in the nature of a criminal a.ct and cannot therefore be established unless mens rea, or criminal intention, is established, and that the appellant cannot be said to have committed (1) S.C.R. SUPREME COURT REPOHTS a corrupt practice for he had no mens rea in appointing Amar Singh his polling agent since he did not Dr. Y. S. Parmar know that Amar Singh was a member of the armed forces.

On this point we were· referred to certain pas- Sh. Hira Singh sages from English text-hooks on election law of which Paul and Another it will be enough to refer to one, for all state the law fi Id' p l' Sarkar ]. in substantially the same terms. In Scho e s ar 1amentary Elections, 2nd Edn. whieh is one of the text-books to which we were referred, it is stated at p. 402: There is an elementary distinction between a corrupt and an illegal practice. To establish the former it is essential to show that a. corrupt intention is present. A corrupt practice is a thing the mind goes along with, whereas an illegal practice is a thing the legislature is determined to prevent, whether it is done honestly or dishonestly. The view thus formulated is founded on the English law of election and is clearly of no assistance to us. It is based on particular English statutes and the language employed therein.

We have already shown that our statute in the case at least of a corrupt practice of the kind in hand does not concern itself with any question of intention. Mr. Achhru Ram with his usual indust.ry made available to us the English statutes on which the statement of law set out in the textbooks referred to by counsel for the appellant had been based and pointed out that under these statutes the acts therein made corrupt practices had to be done corruptly and that corrupt practices were a.I wayA ma.de offences punishable as crimes. It may be of U8c here to point out that the relevant provisions in our 8tatute wel'e amended in 1956 anrl that has doue away with the distinction between illegal and corrupt pmctices. In fact, we have now only corrupt· praeticoK and no illegal practices. The present case, it may be pointed out, is governed by the amended statute. No question of mens rea or intention or knowledge of the candidate arises in this case.

We, therefore, come to the conclusion that the appellant was guilty of a corrupt practice by appointing Amar Singh, a member of the armed forces, his polling r958 agent whereby the latter was enabled to and did act. as such. The appellant's election was consequ- Dr. Y. S. Parmar ti · · ht! d J en y m our opm10n rig y ec aro vm . sh. m:~ 5;,.gh The appeal is therefore dismissed with costs. 1.)aul and Another Sarka, ]. OcJober z7. Appeal dismissed. MCKENZIE & CO. LTD. ITS WORKMEN AND OTHERS (JAFER IMAM, S. K. DAS and J. L. KAPUR, JJ.) Industrial Dispute-Illegal strike-Enquiry by company- Rejection by Tribunal of application for permission to dismiss workmeH-Fresh enquiry, if barred-Notice of enquiry, how to be effected -Dismissal after fresh enquiry-Jurisdiction of Tribunal-If can interfere with decision of company-Industrial Disputes Act (XIV of r947), s.

33· During the pendency of the adjudication of a reference before the Industrial Tribunal, the workmen illegally confined the work-$ manager and went on strike. The company issued notices to the workmen to resume '\'Ork immediately but they refused. The company declared a lock out and served charge sheets on the workmen calling upon them to submit their explanations. No explanation having been submitted the company held an enquiry and found the workmen guilty of gross misconduct amounting to major misdemeanour which merited dismissal. The company applied to the Tribunal under s. 33 of the Industrial Disputes Act for permission to dismiss the workmen. The Tribunal granted permission in respect of three workmen but refused it in respect of 6I workmen on the ground that there was reasonable doubt as to their identity and complicity in the incident. The order was upheld in appeal by the Labour Appellate Tribunal. Thereupon the company took fresh. proceedings against the 64 workmen.

It sent charge sheets to them by registered notices to their addresses registered with the company and also affixed notices on its notice boards both inside the premises and outside the gate. The registered notices could not be served upon workmen Nos. 2 to 24 as they were not found at the addresses given. The company wrote to the Workers