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PETITIONER:

HARISH CHANDRA BAJPAI

Vs.

RESPONDENT:

TRILOKI SINGH

DATE OF JUDGMENT:

21/12/1956

BENCH:

AIYYAR, T.L. VENKATARAMA

BENCH:

AIYYAR, T.L. VENKATARAMA

BHAGWATI, NATWARLAL H.

SINHA, BHUVNESHWAR P.

DAS, S.K.

CITATION:

1957 AIR 444 1957 SCR 370

ACT:

Election Dispute-Petition grounded on corrupt Practices

Matter, if of wider import than' Particulars'-Trial',

meaning of-Procedure if includes Power's--Amendment, if'

and when permissible-Power of Election Tribunal-Person, when

can be said to be employed for Purposes of election-Contract

of service and contract for services-Distinction-

Representation of the People Act (XLIII of 1951), ss. 81,

83, cls. (1), (2) & (3), 90(2), 92, 123 cls.(7) & (8)-Code

of Civil -Procedure (Act V of 1908), 0. VI, r. 17.

HEADNOTE:

The respondent filed a petition under s. 81 of the

Representation of the People Act challenging the election of

the appellants to the Uttar Pradesh Legislative Assembly on

the ground that they had committed corrupt practices, the

material allegations

371

being, (1) that the appellants " could in the furtherance of

their election enlist the support of certain Government

servants ", and (2) 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 under S. 83(2) Of the Act was attached to the

petition. Thereafter the respondent applied under s. 83(3)

Of the Act for an amendment of his petition by adding the

names of certain village Headmen (Mukhias) as having worked

for the appellants and later on become their polling agents.

The Election Tribunal allowed the amendment, when a fresh

petition on those allegations would have been time-barred,

holding that what were sought to be introduced by it were

'mere particulars of the charge already made, and held that

corrupt practices under ss. 123(8) and 123(7) had been

committed by the appellants. It accordingly declared the

election void under S. 100(2)(b) of the Act. It was

contended on behalf of the appellants that the Election

Tribunal had no power either under s. 83(3) Of the Act or

under 0. VI, r. 17 Of the Code of Civil Procedure to allow

the amendment in question and its finding that the appellant

No. I had employed the two persons in addition to the

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prescribed number was misconceived in law.

Held, that although the term 'matter' in S. 83(3) was of

wider import than 'particulars I to be stated under s. 83(2)

and would comprehend the grounds on which the election was

sought to be set aside, s. 83(3) was not an exhaustive

provision on the power of amendment, its application being

limited to allegations of corrupt and illegal practices, and

that, therefore, in respect of other matters, the power of

amendment under 0. VI, r. 17, read with s. 90(2) of the Act

was not excluded, and the maxim expression exclusio

alterius, would not apply.

The word 'trial' in s. 90(-2) of the Act is used in a wide

sense as including the entire proceedings before the

Tribunal from the time when the petition is transferred to

it under s. 86 of the Act till the pronouncement of its

award.

There is no antithesis between 'procedure' in s. 90(2) and

powers' in s. 92 of the Act and Where an. application would

lie to the Tribunal under s. 90(2) it would have' the power

to pass, the necessary order on it.

The object of the legislature in enacting s. 92 of the Act

was to place the powers of the Tribunal in respect of the

matters mentioned therein as distinguished from the other

provisions of the Code, on a higher footing.

Sitaram v. Yograjsing, A.I.R. (1953) Bom. 293, approved.

Jagan Nath v. Jaswant Singh, (1954) S. C. R. 892, referred

to.

Sheo Mahadeo Prasad v. Deva Sharan, A. I. R. (1955 Patana

Si, disapproved.

372

While the Election Tribunal had undoubtedly the power under

s. 83(3) of the Act to allow an amendment. in respect of any

particulars of illegal and corrupt practices, or to permit

new instances to be included, provided the grounds or

charges were specifically stated in the petition, its power

to amend a petition under 0. VI, r. 17 Of the Code of Civil

Procedure could not be exercised so as to permit new grounds

or charges to be raised or the character of the petition to

be so altered as to make it in substance a new petition,

when a fresh petition on those allegations would be time-

barred.

Beal v. Smith, (1869) L. R. 4 C. P. 145; Greenock Election

Case, (1869) L. R. 4 C. P. 150 (footnote); Carrickfergus

Case, (1869) 1 O'M. & H. 264; Dublin Case, (1869) 1 O'M. &

H. 270 and Maude v. Lowley, (I 874) L. R. 9 C. P. 165,

referred to.

Chayan Das v. Amir Khan, [192O) L. R. 47 1. A. 255, not

followed.

Held further, that the amendment introduced a new charge,

altered the character of the petition and was beyond the

powers of the Tribunal and necessary evidence had not been

adduced to support a finding as to the additional employment

and no corrupt practices either under cl. (7) or: (8) Of S.

I23 had, therefore, been committed.

In deciding the question as to whether any person in

addition to the number permitted by the Act had been

employed by a candidate for his election purposes, the well-

established distinction between a contract for services and

a contract of service must be borne in mind and in absence

of any evidence to show that the contract with the person

engaged was one of service,-that he was to do the Work

personally, with or without the assistance: of others, lie

could not be held to have been employed in law.

Collins v. Hertfordshire Central Council, (1947) K. B. 598

and Dhayangadhara Chemical Works Ltd. v. State of

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Saurashtra, (1957)S. C. R. 152, relied on.

JUDGMENT:

CIVIL APPELLATE JURISDICTION Civil AppEal No.333 of

1956.

Appeal by special leave against the judgment and order dated

March 23, 1955, of the Election Tribunal, Lucknow, in

Election Petition No. 320 of 1952.

C. K. Daphtary, Solicitor General of India, R. C. Gupta,

J. S. Trivedi and S. S. Shukla, for the appellant.

K. S.- Krishnaswamy Iyengar, S. P. Sinha and R. Patnaik,

for respondent No. 1.

373

1956. December 21. The Judgment of the Court was delivered

by

VENKATARAMA AIYAR J.-This is an appeal by special leave

against the order of the Election Tribunal, Faizabad,

declaring the election of the appellants to the Legislative

Assembly, Uttar Pradesh from the Lucknow Central

Constituency, void under s. 100(2)(b) of the Representation

of the People Act No. XLIII of 1951, hereinafter referred to

as the Act. The Constituency is a double-member

Constituency. one of the seats being reserved for a member

of the Scheduled Castes. The -polling, took place on 31-1-

1952, and the two appellants we-re declared elected, they

having secured the largest number of votes. On -June 10

1952, the respondent herein filed a petition under S. 81 of

the Act alleging that the appellants had committed a number

of corrupt practices, and prayed that the election might be

declared wholly void.

The appellants filed written. statements denying these

allegations, and on the pleadings, issues were framed on

January 17, 1953. Then followed quite 'a spate of

proceedings, consisting of applications for framing of fresh

issues for better particulars and for amendment of the

election petition, to which a more detailed reference will

presently be made. As a result of these proceedings, it was

not until September, 1954, that the hearing of the petition

began On March 23, 1955, the Tribunal delivered its judgment

and, by a majority, it set aside the election on two

grounds, (1) that the appellants had obtained the assistance

of four village officers, Mukhias, in furtherance of. their

election prospects and had thereby contravened s.123(8) of

the Act; and (2) that the first appellant had employed for

payment in connection with high election two persons in

addition to' the number permitted by Rule 118 read with

Schedule VI, 'namely, Ganga Prasad and Viswanath Pande, and

had there by infringed s. 123(7) of the Act. Before us, the

appellant's dispute the correctnes's of the conclusions on

both these points.

As regards the first point, the main contention of the

appellants that the charge that they had employed

374

four Mukhias in furtherance of their, election prospects was

not pleaded in the petition as originally presented and that

it came in only by an amendment dated November 28, 1953,

that. the Tribunal had no power to order that amendment, and

that, accordingly, the finding thereon should be

disregarded. It is necessary for a correct appreciation of

the contentions on either side to state the facts leading to

this amendment.

The material allegations in the petition as it was presented

on June 10, 1952, are contained in para 7(c), and are as

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follows:

"That the respondents Nos. 1 and 2 could in furtherance of

their election enlist the support of certain Government

servants. The District Magistrate, Lucknow, organised the

opening of eye relief camps, and these functions were

utilised for the election propaganda of the respondents Nos.

1 and 2. An eye relief camp was proposed to be opened on

December 16, 195 1, at Kakori by Sri C. B. Gupta, Minister,

Civil Supplies, U.P., one of the chief organisers of the

election of the respondents Nos. 1 and 2. An election

meeting was advertised by the workers of the respondents

Nos. I and 2 to be' held within a short distance of the

proposed eye relief camp on the same day. This meeting was

amongst others addressed by Sri G. B. Pant, Chief Minister,

U.P., Sri C. B. Gupta and the respondent No. 1. It was also

attended by the Patwaris and Qanungo of the, Kakori Circle

including the Tahsildar, Lucknow and the Duty Superintendent

of Police, Lucknow.

"On December 27, 1951, an eye relief camp was similarly.

organised and opened at Kakori. The ceremony this time was

performed by Mrs. Vijay Lakshmi Pandit 'and immediately

thereafter from the same platform and at the same place

election speeches were made and the audience exhorted to

vote for Mrs. Vijay Lakahmi Pandit, a candidate for the

House of the People from that area and respondents Nos. 1

and 2. This meeting was attended -by, the District

Magistrate. Lucknow, Sub Divisional Magistrate, Lucknow,

Deputy Superintendent of Police, Lucknow,

735

Tahsildar, Lucknow and Patwaris and Qanungo of Kakori

Circle. The respondents Nos. I and 2 by this device

succeeded in creating an impression on the voters that they

had the support of the district officials.

There was no list of particulars attached to the petition as

provided in s. 83 (2) of the Act.

On December 15, 1952, the first appellant filed his written

statement, and therein he stated with reference to para 7

(c) that it was "wrong and denied that the answering

respondent in furtherance of his election enlisted the

support of any government servant." He also stated that the

allegations were not accompanied by a list, and were vague

and lacking in particulars and were liable to be struck off.

The written statement of the second appellant filed on

December 20, 1952, was also on the same lines as those of

the first appellant. Respondent No. 4, who was' a defeated

candidate and supported the respondent herein, filed a

written statement on December 3, 1952, wherein he alleged

that the appellants had obtained services of village

officers, such as Lambardars and Sarpanches in furtherance

of their election prospects. Respondent No. 9 who was

another defeated candidate also filed a written statement on

the same day, adopting the allegations in the statement of

the fourth respondent adding Mukhias to the list of village

officials whose assistance was procured by the Appellants.

On January 10, 1953, the respondent filed a replication to

the written statements of the appellants, wherein he stated

as follows

"As stated in the petition, the denial of the respondents

Nos. 1 and 2 is absolutely wrong, inasmuch as many

Government servants worked for, issued appeals and became

polling agents for respondents I and 2. In these meetings at

Kakori many government servants took part and some worked

for furtherance of the election of respondents Nos. I and 2

and issued appeals to the public to vote for respondents

Nos. I and 2 and also became their polling agents."

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On January 24, 1953, the appellants filed a written

statement objecting to the reception of the replication

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376

on the ground that the petitioner (respondent) had no right

to file it and that it was a mere device to add to the

original petition. They also filed an application on the

same date for a preliminary hearing of certain issues

relating to the contentions raised by them in their written

statements that the allegations in the petition were vague

and should be struck off for want of particulars, and the

same was posted for hearing on February 25, 1953. Arguments

were heard on these issues on that day and again on August

25, 1953, and the following days, and on October 31, 1953,

the Tribunal passed an order striking off some of the

allegations in the petition and calling upon the petitioner

to give particulars in respect of others. Dealing with para

7 (c) of the petition, the order stated :

" Paragraph 7 (C) is not vague. It shall remain as it is.

Corresponding paragraph of the replication introduces some

new matters. Therefore, the same shall be disregarded. The

Petitioner has not named ,the Government servants. He shall

supply the names of the officials including those of the

Patwaris and Qanungoes."

Meantime, after the preliminary argument aforesaid had

commenced and before it was concluded, the respondent filed

on February 27, 1953, an application for amendment of his

petition, the order on which is the main target of attack in

this appeal. It was presented under s. 83(3) of the Act,

and prayed that the petitioner " be allowed to amend the

details of para 7(c) by adding the words Village Headmen'

with their names and the fact that they worked and issued

appeal and subsequently they became the -polling agents of

respondents Nos. 1 and 2. It mentioned for the first time

the names of the Mukhias whose assistance the appellants

have been held to have obtained. This application was

opposed by -the appellants on the ground that the amendment

did not fall within s. 83(3),that, the matters sought to be

introduced thereby were new charges, and if admitted, they

would alter the very character of the petition, and that it

should not be granted, as a fresh petition on those

allegations would be barred on that date. It should be

mentioned

377

that oh January 22, 1953, respondent No. 4 had filed an

application to raise additional issues on his averments that

the appellants had obtained assistance from the village

officers. That application was also contested by the

appellants. It would appear that this application and the

amendment petition were heard together. On November 10,

1953, the Tribunal by a majority passed an order dismissing

the application of the fourth respondent for additional

issues. 'On November 28, 1953, it allowed, again by a

majority, the application of the respondent for amendment

observing that the matters sought to be introduced were

merely particular in respect of the charge set out in par&

7(c) of the petition, "that the respondents I and 2 could in

furtherance of their election enlist the support of certain

Government servants", and further that 0. VI, r. 17 of the

Civil Procedure Code was applicable to proceedings before

the Election Tribunal'.

The appellants attack the correctness of this conclusion,

and contend that the Tribunal had no power either under s.

83(3) or under 0. VI, r. 171 to order the amendment in

question.- They also contend that even if the Tribunal had

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the power to order Amendment, the order in question is not

justified on the merits, and is erroneous. It is necessary

to set out the statutory provisions bearing on the question:

S.81(1). An election petition calling in question any

election may be presented on one or more grounds specified

in sub-ss. (1) and (2) of s. 100 and S. 101 to 'the Election

Commission by any candidate at such election or any elector

in such form 'and within such time but not earlier than the

date of publication of the name or names of the returned

candidate or candidates at such I election under s. 67, as

may prescribed.

S.83(1). An election petition shall contain a concise

statement of the material facts on which the petitioner

relies and shall be signed by the petitioner and verified in

the manner laid down in the Code of 'Civil Procedure, 1908

(Act V of 1908), for the verification of pleadings.

378

(2)The petition shall be accompanied by a list signed and

verified in like manner setting forth full particulars of

any corrupt or illegal practice which the petitioner

alleges, including as full a statement as possible as to the

names of the parties alleged to have committed such corrupt

or illegal practice and the date and place of commission of

each such practice.

(3) The Tribunal may, upon such terms as to costs and

otherwise as it may direct at any time, allow the

particulars included in the said list to be amended or order

such further and better particulars in regard to any matter

referred to therein-to be furnished as may in its opinion be

necessary for the purpose of ensuring a fair and effectual

trial of the petition.

85.If the provisions of s. 81, s. 83 or s. 117 are not

complied with, the Election Commission shall dismiss the

petition.

90 (2). Subject to the provisions of this Act and of any

rules made thereunder, every election petition shall be

tried by the Tribunal, as nearly as may be, in accordance

with the procedure applicable under the Code of Civil

Procedure, 1908 (Act V of 1908), to the trial of suits.

90 (4). Notwithstanding anything' contained in s. 85, the

Tribunal may dismiss an election petition which does not

comply with the provisions of s. 81,a. 83 or s. 117.

92.The Tribunal shall have the powers, which are vested in a

court under the Code of Civil Procedure, 1908 (Act V of

1908), when trying a suit in respect of, the following

matters:

(a) discovery and inspection;

(b) enforcing the attendance of witnesses and requiring the

depositor their expenses;

(c) competing the production of documents;

(d) examining witnesses on oath;

(e) granting adjournments;

(f) reception of evidence taken on affidavit; and

(g) issuing commissions for the examination of witnesses,

-and may summon and examine suo motu any person whose

evidence appears to it to be material; and shall be deemed

to be a civil court within the

379

meaning of ss. 480 and 482 of the Code of Criminal

Procedure, 1898 (Act V of 1898)."

Now, we start with this that s. 83(3) grants a power to the

Tribunal to amend particulars in a list. What is its scope?

Is it open to the Tribunal acting under this provision to

direct new instances of the corrupt practices to be added to

the list? And if it is, is that what it did in the present

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case? It is contended by the learned Solicitor-General on

behalf of the appellants that s. 83(3) does not authorize

the inclusion of new instances of corrupt practices, and

that all that could be ordered under that provision was

giving of fuller particulars in respect of instances given

in the petition. The argument in, support of this

contention might thus be stated: Section 81 requires that

the election petition should state the grounds on which it

is founded. Section 83(1) enacts that it should contain -a

concise statement of the material facts on which the

petitioner relies, and s. 83(2) provides that the petition

should be accompanied by a list containing full particulars

of the corrupt or illegal practices. When the three

provisions are read together, it is clear that the

legislature has made a distinction between grounds in s.

81(1), facts ins. 83(1) and full particulars in s. 83(2);

and in this context, facts in s. 83(1) must mean instances

of the charge on which the petition is grounded and the

particulars referred to in s. 83(3) can only mean

particulars in respect of the instances set out in the

petition in accordance with s. 83(1). The consequence is

that an instance of a corrupt practice not given in the

petition, cannot be brought in under section 83(3). On this

reasoning, it is contended that the order of the Tribunal

dated November 28, 1953, permitting the respondent to allege

that the appellants obtained the assistance of four Mukhias,

whose names were mentioned for the first time in the

amendment petition, is outside the ambit of the power

conferred by s. 83(3).

We are unable to agree with this contention. In I our

opinion, s. 81(1) and s. 83, sub-ss. (1) and (2), when

correctly understood, support the contention of the

respondent that the Tribunal has authority to

380

allow an amendment even when that involves inclusion of new

instances, provided they relate to a charge contained: in

the petition. Taking first s. 81(1), it enacts that a

petition may be presented calling an election in question on

one of the grounds specified in a. 100, sub-ss. (1) and (2)

and section 101. These sections enumerate a number of

grounds on which the election may be set aside, including

the commission of the corrupt practices mentioned in s. 123

of the Act, and quite clearly it is the different categories

of Objections mentioned in s. 100, sub-ss. (1) and (2), S.

101 and s. 123 that constitute the grounds mentioned in s.

81(1). Then we come to s. 83(1). It says that the petition

should contain a concise statement 'of the material facts,

and that would include facts relating to the holding of the

election, the result thereof the grounds on which it is

sought to be set aside, the right of the petitioner to

present the petition and the like. Then s. 83(2) enacts

that when there is an allegation of corrupt or illegal

practice, particulars thereof' should be given in a separate

list. If the grounds on which an election' is sought to be

set aside are something other than the commission of corrupt

or illegal practices, as for example, when it is stated that

the nomination had been wrongly accepted or that the

returned candidate was not entitled to stand for election,

then s. 83(2) has no application, and the requirements of s.

83(1) are satisfied when the facts relating to those

objections are stated. The facts to be stated :under a.

83(1). are thus different from the particulars -which have

to be given -under a. 83(2). When# therefore, an election

is challenged on the ground that the candidate hag committed

the corrupt practices mentioned in section 123, instances

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constituteing particulars thereof will properly fall within

s. 83(2) and not a. 83(1). The result is that the power

under a. 83(3) to allow further and better particulars will

include a power to allow fresh instances of the

charges,which form the grounds on which the election is

Questioned.

We are fortified in this conclusion by decisions of English

Courts, on statutory provisions which are in

381

pari materia with our enactment. Section 20 of the

Parliamentary Elections Act, 1868 enacts that an election

petition shall be in such form and state such matters as may

be prescribed, that is, by the rules. Rule 2 of the

Parliamentary Election Rules provides that the election

petition " shall state the holding and result of the

election and shall briefly state the facts and grounds

relied on to sustain the prayer ". Rule 5 gives the form of

an election petition and the third paragraph therein is as

follows.

" And your petitioners say (here state the facts and grounds

on which the petitioners rely)."

The true scope of these Provisions came up for consideration

in Beal v. Smith (1). There, the election petition merely

stated that " the respondent by himself and other. person.%

on his behalf, was guilty if bribery, treating and undue

influence." The respondent took out an application for an

order that the petition be taken off the file on the ground

that it merely stated the grounds but not the facts

constituting the particulars as required by Rule 2. In the

alternative, it was prayed that the petitioners should be

directed to give particulars relating to the several corrupt

practices. In rejecting the former prayer, Bovill C. J.

observed:

" Now, with regard to the form of the petition, it seems to

me that it sufficiently follows the spirit and intention of

the rules; and no injustice can be done by its generality,

because ample provision is made by the rules to prevent the

respondent being surprised or deprived of an opportunity of

a fair trial, by an order for such particulars as the judge

may deem reasonable. I think, therefore, it would be quite

useless to require anything further to be stated in the

petition than appears here."

With reference to the alternative prayer, it was held that

an order that the particulars be furnished three days prior

to the trial was a proper one to be passed. A similar

decision was given in the Greenoch Election Case, a report

of which is given in a footnote at page 150 of Beal v. Smith

(1)(1869) L. R. 4 C- P.145.

382

These decisions establish that the requirement as to

statement of grounds and facts is satisfied when the charge

on which the election is sought to be set aside is set out

in the petition, that the fare to give therein particulars

of corrupt and illegal practices on which it is founded is

not fatal to its maintainability, and that it is sufficient

if the particulars are ordered to be furnished within a

reasonable time before the commencement of the trial. On

the same reasoning, the conclusion should follow that s. 81

(1) and a. 83 (1) are complied with, when the grounds on

which the election is sought to be set aside, are stated in

the petition, those grounds being, as already stated, the

matters mentioned in s. 100, sub-ss. (1) and (2), s. 101 and

s. 123, which is attracted by s. 100 (2) (b), and that the

particulars in respect of those grounds, when they are

charges of corrupt or illegal practices, fall within s. 83

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(2). There is, it should be observed, nothing in the

Election law of England corresponding to s. 83 (2), the

question of particulars being left there to be dealt with

under the Rules applicable to the trial of causes. The

consequence is that while under the English practice, the

petitioners are not obliged to state particulars of corrupt

practices in their petition, under s. 83 (2) a statement of

those particulars must be made in the petition in a separate

list annexed thereto. But this difference is more a matter

of form than of substance, as s. 83 (3) provides for

particulars being called for and furnished in the course of

the proceedings, and does not affect the conclusion as to

the power of the Tribunal to allow new instances to be

pleaded.

Section 83 (3) provides, it should also be noted, for the

list of particulars being amended or enlarged. It is not,

however, to be inferred from this that when the particulars

are mentioned in the body of the petition, they could not be

amended. The reference to the list, in a. 83 (3) must be

taken along with the provision in s. 83 (2) that particulars

are to be set out in a list to be attached to the petition.

The substance of the matter, therefore, is that under s. 83

(3) particulars can be amended and supplemented, and the

reason of it requires that the power could be exercised even

when

383

the particulars are contained in the body of the petition.

And even when there is no list filed, as in the present

case, it would be competent to the Tribunal to allow an

amendment giving for the first time instances of corrupt

practice, provided such corrupt practice has been made a

ground of attack in the petition.

One other argument urged by the appellants against this

conclusion must now be considered. It is based on the

language of s. 83(3). That section, it is urged, allows

firstly by an amendment of the particulars. included in the

list, and secondly " further and better particulars in

regard to any matters referred to therein" and that,

according to the appellants, means the particulars already

given in the list. it is accordingly contended that the

power to allow further and better particulars can be

exercised only in respect of particulars already furnished,

whether they be contained in the body of the petition or in

the list, and that, therefore, an order permitting inclusion

of new instances is outside the purview of s. 83(3). The

assumption underlying this contention is that the word

"matter" in s. 83 (3) means the same thing as "particulars".

We see no reason why we should put this narrow construction

on the word "matter". That word is, in our opinion, of

wider import than particulars, and would also comprehend the

grounds on which the election is sought to be set aside. If

the construction contended for by the appellant is correct,

the relevant portion of s. 83 (3) will read as " further and

better particulars in regard to any particulars referred to

therein", and that does not appear to us to be either a

natural or a reasonable reading of the enactment. Having

regard to the scheme of the Act stated above, we think that

s. 83 (3) is intended to clothe the Tribunal with a general

power to allow not merely an amendment of particulars

already given but also inclusion of fresh particulars,

pleading new instances, subject to the condition that they

are in respect of a ground set out in the petition. This is

in accordance with the law and practice obtaining in the

Election Courts in England. Thus,in the Carrickfergus Case

(1), in ordering

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(1) [1869] 1 O'M. & H. 264, 265.

50

384

an application for amending particulars, so as to include

matters which had only then come to the knowledge of the

petitioner, O'Brien, J., observed :

" In some respects the Petitioner came down here manifestly

ignorant of the exact grounds upon which several of the

charges of the Petition were founded.

" I therefore thought it reasonable upon a proper case being

made out to allow the Petitioner to amend his bill of

particulars by adding such facts as only -recently came to

his knowledge. I consider that in the trial of these

petitions, where the purity of the election is questioned,

the most searching enquiry should be instituted, and it is

the duty of the Judge to afford every facility in his power

to that investigation."

In the Dublin Case (1), the order was one directing a list.

of particulars to be amended, the Court observing:

" I shall allow the utmost 'latitude to amend, unless it is

a case in which I see that the party kept back information

at the time the list was furnished."

In this view, the order of amendment in question is not open

to attack on the ground that it has permitted new instances

to be raised. What has to be seen is whether those

instances are, in fact, particulars in respect of a ground

put forward in the petition, or whether they are, in

substance, new grounds of attack.

Before dealing with this question, it will be convenient to

consider the alternative contention raised for the

respondent -that even if the Tribunal had no power to order

the amendment in question under s. 83 (3) of the Act, it was

competent to do so under o. VI, r. 17, Civil Procedure

Code, and that this Court should not in special appeal

interfere with the discretion exercised by it in making the

order. That raises the question which has been very much

debated both in the Election Tribunals and in the High

Courts of the States as to whether 0. VI, r. 17 applies to

proceedings before Election Tribunals. Mr. K. S. Krish-

naswami Ayyangar, learned counsel for the respondent,

contends that it does, by force of s. 90 (2) of the Act,

under which the Tribunal is to try a petition "as

(1) [1869] 1 O'M. & H. 270, 272.

385

nearly as may be in accordance with the procedure applicable

under the Code of Civil Procedure, 1908, to the trial of

suits." Now, in A. G. v. Sillem (1) it was stated by Lord

Westbury that the word "practice"and it means, as observed

in Poyser V. Mixors (2) the same - thing as procedure-

denotes " the rules that make or guide the Curcus cirise,

and regulate the proceedings ina cause within the walls

or limits of the Court itself ". And these proceedings

include all ,steps, which might be taken in the prosecution

or defence thereof, including an application for amendment.

In Maude v. Lowley (3), the point arose for decision whether

the power conferred on the Election Court by s. 21(5) of the

Corrupt Practices (Municipal Elections) Act, 1872, to try

the petition, subject to the provisions of the Act, as if it

were a cause within its jurisdiction, carried with it a

power to order amendment of the petition. It was held that

it did. That precisely is the point here.

But it is contended for the appellants that 0. VI, r. 17

cannot be held to apply to proceedings before the Tribunal

by reason of s. 90 (2), because (1) under that section, it

is only the trial of the election petition that has to be in

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accordance with the provisions of the Civil Procedure Code,

and the question of amendment of the petition relates to a

stage anterior to the trial;(2) s. 92 enumerates certain

matters in respect of which the Tribunal is to have the

powers of a court under the Civil Procedure Code, and as

amendment of pleadings is not one of them, 0. VI, r. 17 must

be held to have been excluded from its jurisdiction; (3) the

Act makes a distinction between procedure and powers, s. 90

(2) extends the provisions of the Civil Procedure Code to

proceedings before Tribunals only in respect of procedure,

and power to order amendment under 0. VI, r. 17 is not

within the extension; and (4) s. 90(2) is, in any event,

subject to the provisions of the Act and the rules made

thereunder, and the power of amendment under s. 83 (3) being

limited to particulars, the

(1) [1864] 10 H.L.C. 704,723; II E.R. 1200, 12O9.

(2) [1881]7 Q.B.D. 329,333.

(3) (1874) L.R. 9 CP. 165. 172.

386

general power of amendment under 0. VI, r. 17 must be held

to have been excluded. The correctness of these contentions

must now be examined.

(1)Taking the first contention, the point for decision is as

to what the word 'trial' in s. 90 (2) means. According to

the appellants, it must be understood in a limited sense, as

meaning the final hearing of the petition, consisting of

examination of witnesses, filing documents and addressing

arguments. According to the respondent, it connotes the

entire proceedings before the Tribunal from the time that

the petition is transferred to it under s. 86 of the Act

until the pronouncement of the award. While the word'

trial' standing by itself is susceptible of both the narrow

and the wider senses indicated above, the question is, what

meaning attaches to it in s. 90 (2), and to decide that we

must have regard to the context and the setting of the

enactment. Now, the provisions of the Act leave us in no

doubt as to in what sense the word is used in s. 90(2). It

occurs in Chapter III which is headed " Trial of election

petitions ". Section 86 (4) provides that if during the

course of the trial any member of a Tribunal is unable to

perform his functions, the Election Commission is to appoint

another member, and thereupon the trial is to be continued.

This provision must apply to retirement or relinquishment by

a member, even before the hearing commences, and the

expression " during the course of the trial " must therefore

include the stages prior to the hearing. Section 88 again

provides that the trial is to be held at such places as the

Election Commission may appoint. The trial here must

necessarily include the matters preliminary to the hearing

such as the settlement of issues, issuing directions and the

like. After the petition is transferred to the Election

Tribunal under s. 86,, various steps have to be taken before

the stage can be set for hearing it. The respondent has to

file his written statement ; issues have to be settled. If

'trial' for the purpose of s. 90(2) is to be interpreted as

meaning only the hearing, then what is the provision of law

under which the Tribunal is to call for written statements

and settle issues ? Section 90(4) enacts

387

that when an election petition does not comply with the

provisions of s. 81, s. 83 or s. 117, the Tribunal may

dismiss it. But if it does not dismiss it, it must

necessarily have the powers to order rectification of the

defecte arising by reason of non-compliance with the

requirements of s. 81, s. 83 or section 117. That not being

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a power expressly conferred on it under s. 92 can only be

sought under 'Is. 90(2), and resort to that section can be

had only if trial is understood as including proceedings

prior to hearing. Section 92 enacts that the Tribunal shall

have powers in respect of various matters which are vested

in a court under the Civil Procedure Code when trying a

suit, and among the matters set out therein are discovery

and inspection, enforcing attendance of 'witnesses and

compelling the production of documents, which clearly do not

form part of the hearing but precede it. In our opinion,

the provisions of Chapter III read as a whole, clearly show

that 'trial' is used as meaning the entire proceedings

before the Tribunal from the time when the petition is

transferred to it under s. 86 until the pronouncement of the

award.

(2)The second contention urged on behalf of the appellants

is that if the provisions of the Civil Procedure Code are

held to be applicable in their entirety to the trial of

election petitions, then there was no need to provide under

s. 92 that the Tribunal was to have the powers of courts

under the Code of Civil Procedure in respect of the matters

mentioned therein, as those powers would pass to it under s.

90(2). But this argument overlooks that the scope of s. 90

(2) is in a material particular different from that of s.

92. While under s. 90(2) the provisions of the Civil

Procedure Code are applicable only subject to the provisions

of the Act and the rules made thereunder, there is no such

limitation as regards the powers conferred by s. 92. It was

obviously the intention of the legislature to put the powers

of the Tribunal in respect of the matters mentioned in s. 92

as distinguished from the other provisions of the Code on a

higher pedestal, and as observed in Sitaram v. Yoqrajising

(1), they are

(1) A.I.R. [1953] BOM. 293.

388

the irreducible minimum which the Tribunal is to possess.

(3) It is then argued that s. 92 confers powers on the

Tribunal in respect of certain matters, while s. 90(2)

applies the Civil Procedure Code in respect of matters

relating to procedure, that there is a distinction between

power and procedure, and that the granting of amendment

being a power and not a matter of procedure, it can be

claimed only under s. 92 and not under a. 90(2). We do not

see any antithesis between procedure' in s. 90(2) and

'powers' under s. 92. When the respondent applied to the

Tribunal for amendment, he took a procedural step, and that,

he was clearly entitled to do under s. 90(2). The question

of power arises only with reference to the order to be

passed on the petition by the Tribunal. Is it to be held

that the presentation of a petition is competent, but the

passing of any order thereon is not? We are of opinion that

there is no substance in this contention either.

(4) The last contention is based on the provision in s. 90(2)

that the procedure prescribed in the Code of Civil Procedure

is to apply subject to the provisions of the Act and the

Rules. It is argued that s. 83(3) is a special provision

relating to amendments, -and that it must be construed as

excluding 0. VI, r. 17. The result, according to the

appellants, is that if an amendment could not be ordered

under s. 83(3), it could not be ordered under 0. VI, r. 17.

This contention appears to us to be wholly untenable. The

true scope of the limitation enacted in s. 90(2) on the

application of the procedure under the Civil Procedure Code

is that when the same subject-matter is covered both by a

provision of the Act or the rules and also of the Civil

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Procedure Code, and there is a conflict between them, the

former is to prevail over the latter. This limitation

cannot operate, when the subject-matter of the two

provisions is not the same. Section 83(3) relates only to

amendment of particulars, and when the amendment sought is

one of particulars, that section will apply to the exclusion

of any rule of the Civil Procedure Code which might conflict

with it, though it does not appear that there is any such

rule. But where the amendment

389

relatesnot to particulars but to other matters, that is a

field not occupied by s. 83(3), and 0. VI, r. 17 will

apply.The fallacy in the argument of the appellants lies in

the assumption that s. 83(3) is a comprehensive enactment

on the whole subject of amendment, which it clearly is not.

In this view, there is no scope for the application of the

maxim, expressio unius exclusio alterius, on which the

appellants rely. It should be mentioned that the provision

in s. 83(2) for stating the particulars separately in a list

attached to the petition is one peculiar to the Indian

Statute, and the legislature might have considered it

desirable ex abundanti cautela to provide for a power of

amendment in respect thereto. To such a situation, the

maxim quoted above has no application. In Maxwell on

Interpretation of Statutes, Tenth Edition, pages 316-317,

the position is thus stated :

" Provisions sometimes found in statutes, enacting

imperfectly or for particular cases only that which was

already and more widely the law, have occasionally furnished

ground for the contention that an intention to alter the

general law was to be inferred from the partial or limited

enactment, resting on the maxim expressio unius, exclusio

alterius. But that maxim is inapplicable in such cases.

The only inference which a court can draw from such

superfluous provisions (which generally find a place in Acts

to meet unfounded objections and idle doubts), is that the

legislature was either ignorant or unmindful of the real

state of the law, or that it acted under the influence of

excessive caution."

Vide also Halsbury's Laws of England, Hailsham's Edition,

Volume 31, page 506, para 651. We are accordingly of

opinion that the application of 0. VI, r. 17, Civil Procdure

Code to the -proceedings before the Tribunal is not excluded

by a. 83(3).

Turning next to the authorities, the decision of this Court

in Jagan Nath v. Jaswant Singh (1) goes far to conclude the

question in favour of the respondent. In that case, a

petition to set aside an election was filed without

impleading one of the candidates, Baijnath,

(1)[1954] S.C.R. 892,

390

who had been nominated but had withdrawn -from the contest.

That was against s. 82 of the Act. The respondent then

applied for an order dismissing the petition on the ground

that it could not go on in the absence of Baijnath. The

Tribunal held on this petition that the non-joinder of

Baijnath was not fatal to the maintainability of the

petition, and passed an order directing him to be impleaded.

This order was challenged on the ground that there was no

power in the Tribunal to order a new party to be impleaded.

But this Court repelled this contention, and held on a

review of the provisions of the Act including s. 90(2) that

the Tribunal had the power to pass the order in question

under 0. 1, rr. 9, 10 and 13. This is direct authority for

the position that trial for purposes of s. 90(2) includes

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the stages prior to the hearing of the petition, and the

word I procedure' therein includes power to pass orders in

respect of matters not enumerated in s. 92. In Sitaram v.

Yograjsingh (1) it was held that 'Procedure' in s. 90(2) and

I powers' in s. 92 were interchangeable terms, that the

procedure applicable under s. 90(2) was wider than what

would be applicable to the hearing of a. suit, and that the

Tribunal had power in a proper case to order amendment of a

petition. In Sheo Mahadeo Prasad v. Deva Sharan(2), it was

held that the application of 0. VI, r. 17 to proceedings

before the Tribunal was excluded by section 83(3) of the

Act. For the reasons already given, we are unable to agree

with this view. We are of opinion that the law was

correctly laid down in Sitaram v. Yograjsingh(1), and in

agreement with it, we hold that the Tribunal has power in

appropriate cases to direct amendment of the petition under,

O. VI, r. 17.

It is next contended for the appellants that even if s.83(3)

does not exclude the application of 0. VI, r. 17 to the

proceedings before the Tribunal, the exercise of the power

under that rule must, nevertheless, be subject to the

conditions prescribed by a. 81 for presentation of an

election petition, that one of those conditions was that it

should be presented within the

(1) A.I.R. [1953] Bom. 293.

(2) A.I.R. [1955] Patna 81.

391

time allowed therefor, and that accordingly no amendment

should be allowed which would have the effect of defeating

that provision. The decisions in Maude v. Lowley(1) and

Birkbeck and others v. Bullard (1) are relied on in support

of this contention. In Maude v. Lowley (1), the facts were

that an election petition was filed alleging that the

successful candidate had employed as paid canvassers

residents of the ward, and that the election was, in

consequence, void. Then an application was filed for

amending the petition by alleging that residents of other

wards were also similarly employed, and that was ordered by

Baron Pollock. The correctness of this order was questioned

on the ground that on the date of the application for

amendment a fresh petition on those allegations would be

barred, and that therefore the Court had no jurisdiction to

pass the order which it did. In upholding this contention,

Lord Coleridge C. J. observed that section 21(5) gave power

to the Court to amend the petition, that that power was

subject to the provisions of the Act, that one of those

provisions was s. 13(2), which prescribed- the period within

which an election petition could be filed, that the power of

amendment could be exercised only subject to this provision,

and that accordingly an amendment which raised a new charge

should be rejected if a fresh petition on that charge would

be barred on that date. He also observed that the matter

was not one of discretion but of jurisdiction. This was

followed in Clark v. Wallond (3). In Birbeck and others v.

Bullard (2) the application was to amend the petition by

adding a new charge, and it was held tha that could not be

done after the expiry -of the period of limitation fixed in

the Act for filing an election petition, and the decision

was put on the ground that the power to grant amendment was

" subject to the provisions of the Act."

On these authorities, it is contended for the appellants

that even if the Tribunal is held to possess a power to

order amendments generally under 0. VI,

(1) [1874] L.R. 9 C.P. 165. (3) (1883) 52 L.J.Q.B.

321.

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(2) (1885-86) 2 Times Law Reports 273.

392

r. 17, an order under that Rule cannot be made when a new

ground or charge is raised, if the application is made

beyond the period of limitation prescribed for filing

election petitions. 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 circumstances as laid down in Charan Das v. Amir

Khan (1). But this is to ignore the restriction imposed by

s. 90(2) 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 s. 81 and r. 119 must contravene those provisions and is,

in consequence, beyond the ambit of authority conferred by

s. 90(2). We are accordingly of opinion that the contention

of the appellants on this point is well-founded, and must be

accepted as correct.

The result of the foregoing discussion may thus be summed

up:

(1)Under s. 83(3) 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.

We have now to decide whether on the principles stated

above, the order of amendment dated November 28, 1953, was

right and within the competence of

(1)[1920] L.R. 47 I.A. 255.

393

the Tribunal. To decide that, we must examine whether what

the respondent sought to raise by way of amendment was only

particulars in respect of a charge laid in the petition, or

whether it was a new charge. The paragraph in the petition

relevant to the present question is 7(c), and that has been

already set out in extenso. Leaving out the allegations

relating to the meetings held at Kakori, what remain of it

is only the allegation that " respondents I and 2 could in

furtherance of their election enlist the support of

Government servants." The word " could " can only mean that

the respondents were in a position to enlist the support of

Government servants. It does not amount to an averment

that, in fact, they so enlisted their support. It is argued

for the respondent that the allegation in para 7(c) really

-means that the appellants had, in fact, enlisted the

support of Government servants, and that that amounts to a

charge under s. 123(8) of the Act of procuring the

assistance of Government- servants for furtherance of their

election prospects. Why then does the petition not state it

in plain terms ? The difference between "could" and "did" is

too elementary to be mistaken. The respondent has in other

paragraphs relating to other charges clearly and

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categorically asserted what the appellants did and what

their agents did. And why was a different phraseology

adopted in para 7(c) 9 It is to be noted that apart from

this allegation, the rest of the paragraph is taken up with

details of the two meetings at Kakori, and it winds up with

the following allegation:

" The respondents 1 and 2 by this device succeeded in

creating an impression on the voters that they had the

support of the District officials."

This suggests that the charge which the respondent sought to

level against the appellants was that they moved in public

so closely with high dignitaries as to create in the minds

of the voters the impression that they were favoured by

them. We are unable to read into the allegations in para

7(c) as originally framed any clear and categorical

statement of a charge under

394

s. 123(8), or indeed under any of the provisions of the

Election law.

The respondent does not dispute that the language in which

the allegation in para 7(c) is couched does not import that

any corrupt practice had, in fact, been committed, but he

contends that this defect is merely one of expression, and

that the appellants had understood it correctly as meaning

commission of corrupt practices by them, which is what the

respondent meant to assert. It is no doubt true that plead-

ings should not be too strictly construed, and that regard

should be had to the substance of the matter and not the

form. Even so, what, in substance, is the charge which

could be gathered from a general and vague allegation that

the appellants " could " enlist the support of Government

officials ? It should not be forgotten that charges of

corrupt practices are quasi-criminal in character, and that

the allegations relating thereto must be sufficiently clear

and precise to bring home the charges to the candidates; and

judged by that standard, the allegation in para 7(c) is

thoroughly worthless. The contention of the respondent that

the appellants understood the allegation as meaning that

they had committed corrupt practices, is not borne out by

the record. In the application which the appellants filed

on January 24, 1953, for trial of certain questions as

preliminary issues, they stated in para 7 as follows:

"Para 7(c). The allegation contained in this para is vague

and indefinite. It nowhere alleges that the respondent nos.

1 and 2 obtained or procured or abetted, or attempted to

obtain or procure the assistance of any government servants.

No list given."

And again, in the objection filed by the appellants to the

application of the respondent for amendment, they stated

that it was doubtful whether even the original allegation in

para 7(c) amounted to a major corrupt practice within s.

123(8) of the Act. The Tribunal does not deal with this

aspect of the matter and simply assumes that the petition as

presented did raise a charge under s. 123(8). We are of

opinion

395

that this assumption is erroneous and that its finding is

vitiated thereby.

But even if we are to read " could " in para 7(c) as meaning

" did ", it is difficult to extract out of it a charge under

s. 123(8). The allegation is not clear whether the

Government servants were asked by the appellants to support

their candidature, or whether they were asked to assist them

in furtherance of their election prospects, and there is no

allegation at all that the Government servants did, in fact,

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assist the appellants in the election. On these

allegations, it is difficult to hold that the petition in

fact raised a charge under s. 123(8). It is a long jump

from the petition as originally laid to the present

amendment, wherein for the first time it is asserted that

certain Mukhias no Mukhias are mentioned in the petition

assisted the appellants in furtherance of their election

prospects, and that thereby the corrupt practice mentioned

in s. 123(8) had been committed. The new matters introduced

by the amendment so radically alter the character of the

petition as originally framed as to make it practically a

new petition, and it was not within the power of the

Tribunal to allow an amendment of that kind.

Counsel for the appellants also contended that even if the

Tribunal had the power under 0. VI, r. 17 to permit an

amendment raising a new charge, it did not under the

circumstances exercise a sound and judicial discretion in

permitting the amendment in question. There is considerable

force in this contention. The election petition was filed

on June 10, 1952, which was the last date allowed under a.

81 and r. 119. It contained in para 7(c) only the bare

bones of a charge under a. 123(8), assuming that it could be

spelt out of it. Nothing further is heard of this charge,

until we come to December, 1952, when respondents 4 and 9

who sailed with the petitioner, -filed statements alleging

that the appellants had obtained the assistance from

Government servants including Mukhias in furtherance of

their election prospects. On January 16, 1953, the

respondent herein filed a replication in which he sought to

weave the above

396

allegations into the fabric of his petition, but the result

was a mere patchwork. It should be mentioned that there is

no provision of law under which a replication could be filed

as a matter of right, nor was there an order of the Tribunal

allowing it. On February 25, 1953, the appellants opened

their arguments at the hearing of the preliminary issue, and

thereafter, with a view to remedy the defects which must

have been then pointed out, the respondent filed his present

application for amendment. Even that was defective, and had

to be again amended. And what is remarkable about this

application is that no at tempt was made to explain why it

was made after such long delay and why the new allegations

were not made in the original petition. The position taken

up by the respondents was that the amendment only made

express what was implicit in para 7(c). The Tribunal was of

opinion that notwithstanding all these features, the

amendment should be allowed as it was in the interests of

the public that purity of elections should be maintained.

But then, public interests equally demand that election

disputes should be determined with despatch. That is the

reason why a special jurisdiction is created and Tribunals

are constituted for the trial of election petitions. Vide

the observations of Lord Simonds L.C. in Senanayake v.

Navaratne (1).

In the present case, having regard to the circumstances

stated above, the order of amendment would be open to grave

criticism even if it had been made in an ordinary

litigation, and in an election matter, it is indefensible.

The strongest point in favour of the respondent is that we

should not in special appeal interfere with what is a matter

of discretion with the Tribunal. It is not necessary to

pursue this matter further, as we are of opinion that the

order of amendment dated November 28, 1953, is, for the

reasons already stated. beyond the powers of the Tribunal,

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and therefore must be set aside and the finding based on

that amendment that the appellants had committed the corrupt

practice mentioned in s. 123(8) of the Act must be reversed.

In this view, it becomes unnecessary

(1) [1954] A.C. 640.

397

to deal with the further contention of the appellants that

there is no legal evidence in support of the finding of the

Tribunal that they had obtained the assistance of four

Mukhias in furtherance of their election prospects.

Then there is the question whether the first -appellant has,

as held by the Tribunal, again by a majority, contravened s.

123(7) of the Act. The facts found are that one Ganga

Prasad was engaged by the first appellant to prepare three

carbon copies of the Electoral Rolls and was paid Rs. 550/-

at the rate of Re. 0-8-0 per hundred voters and likwise, one

Viswanath Pande was engaged to enter the names of the voters

in printed cards and was paid Rs. 275/- at Re. 0-4-0 per

hundred cards. Both these are undoubtedly expenses incurred

in connection with the election and have, in fact, been

shown by the first appellant in the return of election

expenses against column K. Now the contention of the

respondent which has found favour with the Tribunal is that

both Ganga Prasad and Viswanath Pande must be held to have

been employed for payment in connection with the election,

and as with their addition, the, number of persons allowed

to be employed under Schedule VI has been exceeded, the

corrupt practice mentioned in s. 123(7) of the Act has been

committed. It is contended by the Solicitor-General that on

the facts found Ganga Prasad and Viswanath Pande cannot be

said to have been employed by the first appellant,and that

the conclusion of the Tribunal to the contrary is based on a

misconception of law. Now' whether a person is an employee

or not is a question of fact, and if there had been any

evidence in support of it, this Court would not interfere

with the finding in special appeal. But the respondent, on

whom the burden lies of establishing contravention of r.

118, has adduced no evidence whatsoever, and all that is on

record is what the first appellant deposed while he was in

the box. He merely stated that Ganga Prasad and Viswanath

Pande were asked to do the work on, contract basis. That is

wholly insufficient to establish that there was a contract

of employment of those persons by him. It was argued for

the respondent that there could be a contract of employment

in

398

respect of piece-work as of time-work, and that the evidence

of the first appellant was material on which the Tribunal

could come to the conclusion to which it did. It may be

conceded that a contract of employment may be in respect of

either piece-work or time-work; but it does not follow from

the fact that the contract is for piece-work that it must be

a contract of employment. There is in law a well-

established distinction between a contract for services, and

a contract of service, and it was thus stated in Collins v.

Hertfordshire Central Council (1):

In the one case the master can order or require what is to

be done while in the other case he can not only order or

require what is to be done but how it shall be done."

This Court had occasion to go into this question somewhat

fully in Dharangadhara Chemical Works Ltd. v. State of

Saurashtra (2) , and it was there held that the real test

for deciding whether the contract was one of employment was

to find out whether the agreement was for the personal

labour of the person engaged, and that if that was so, the

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contract was one of employment, whether the work was time-

work or piece-work or whether the employee did the whole of

the work himself or whether he obtained the assistance of

other persons also for the work. Therefore, before it could

be held that Ganga Prasad and Viswanath Pande were employed

by the first appellant, it must be shown that the contract

with them was that they should personally do the work, with

or without the assistance of other persons. But such

evidence is totally lacking, and the finding, therefore,

that they had been employed by the first appellant must be

set aside as based on no evidence.

Neither of the grounds on which the election of the

appellants has been declared void, could be supported. We

must accordingly allow the appeal, set aside the order of

the Tribunal and dismiss the election petition filed by the

respondent, with costs of the appellants throughout.

Appeal allowed.

Election petition dismissed.

(1) [1947] K.B. 598, 615. (2) [1957] S.C.R. 152.

399