judgement:
Civil Appeal No. 3011 of 1979.
From the Judgment and Order dated the 7th September, 1979 of the Patna High Court in Election Petition No. 4 of 1977.
Shanti Bhushan and M.P. Jha for the Appellant.
S.K. Sinha for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN, J.
This election appeal is directed against the judgment of the Patna High Court dismissing Election Petition No. 4 of 1977 with costs of Rs. 1000/ .
The appellant Dharmesh Prasad Verma, who is stated to have contested the election as a Janata candidate, had pleaded four items of corrupt practice in his election petition filed against the respondent Faiyazal Azam who is stated to have contested the election as a Congress I candidate.
The poll in this case was held on 12.6.1977 for the election of a member of the Bihar Legislative Assembly from No. 5 Sikta Constituency in West Champaran district.
The appellant secured 1795 votes while the respondent secured 28324 votes and was declared elected on 15.6.1977.
The election petition was filed on 18.7.1977.
The Legislative Assembly was dissolved in 1980 and fresh election had been held in that year and the respondent is stated to have contested as a non Congress I candidate and to have been elected from the same constituency.
The appellant is, however, interested in pursuing this election petition relating to the election of the year 1977 in order to prove corrupt practice on the part of the respondent.
Mr. Shanti Bhushan, Senior Counsel, appearing for the appellant, restricted his arguments to the first charge alone and that too regarding the use of the jeep USJ 5226 which is alleged to have belonged to one Kabir Ahmed.
That charge is that respondent committed the corrupt practice falling under section 123(5) of the Representation of the People Act, 1951 (hereinafter 14 referred to as the "Act") by procuring and using the jeep for the free conveyance of voters to the polling station on the date of poll.
The respondent denied the charge in his written statement and contended that the appellant had not complied with the mandatory provisions of sections 81, 82 and 83 read with order VI, Rule 15 of the Code of Civil Procedure and section 117 of the Act and that the election petition is, therefore, liable to be dismissed.
The learned Single Judge who tried the election petition, after observing that it is common knowledge that every politician realises the importance of vehicles during general elections, noticed this Court 's observations in Rahim Khan vs Khurseed Ahmed that proceedings arising out of election petitions are quasi criminal in nature and that the evidence relating to corrupt practices should be scrutinized with scrupulous care and merciless severity, and then proceeded to consider the evidence adduced by the parties.
On the evidence the learned Judge found that the jeep bearing No. USJ 5226 while carrying five ladies was seized by the District Magistrate and the Superintendent of Police of the district from a road near a canal situate about 1.5 or 2 miles away from the Sarkiatola booth on the date of the poll and that the five ladies including Murati @ Deokalia (P.W. 19), Mehrunnissa (P.W. 11) and Rasulia (P.W. 42) were voters who were being carried free of cost for casting votes on behalf of the respondent.
The learned Judge found that at the time of the seizure of the jeep it was driven by Kabir Ahmed 's nephew Tabrez Ahmed and that Kabir Ahmed was a great friend of the respondent and he and his father worked for the respondent in the election and were present in the booth on the date of the poll and that the respondent 's polling agent Manager Prasad stood surety for the release of the jeep.
However, the learned Judge held that these facts are not sufficient by themselves to hold that the respondent himself procured the jeep from Kabir Ahmed.
The learned Judge further found that since the jeep with the voters was caught not at the polling station but at some distance away from it, in any event, it was only a case of an attempt at corrupt practice and not corrupt practice itself as per section 123(5) of the Act.
Thus the learned Judge rejected the appellant 's case in regard to this instance of corrupt practice as also the other instances and dismissed the election petition.
15 Section 123(5) of the Act read thus: "section 123.
The following shall be deemed to be corrupt practice for the purpose of this Act: (1) . . . . (2) . . . . (3) . . . . (4) . . . . (5) The hiring or procuring, whether on payment or other wise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector other than the candidate himself, the members of his family or his agent, to or from any polling station provided under section 25 or a place fixed under sub section(1) of section 29 for the poll: Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power: Provided further that the use of any public transport vehicle or vessel or any tram car or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation: In this clause, the expression 'vehicle ' means any vehicle used or capable of being used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise." 16 In clauses (5) of section 123 the word "or" is used in several places and the word "and" is used in two places in the first proviso and the explanation.
Prima facie, Parliament must be deemed to have used the word "or" and "and" for different purposes or objects.
If the matter is res integra it could be said that the main clause (5) consists of two separate parts, namely (1) the hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person, with the consent of a candidate or his election agent for the free conveyance of any elector to or from any polling station, or (2) the use of any vehicle or vessel by any candidate or his agent or by any other person with the consent of a candidate or his election agent for the purpose of free conveyance of any elector to or from any polling station.
It is true that in the latter part of clause (5) the word "such" issued before the words "vehicle or vessel for the free conveyance of any elector to or from any polling station".
But the matter is no longer res integra.
In Joshibhai Chunibhai Patel vs Anwar Beg Mirza Hidayattullah, C.J. speaking for himself and G.K. Mitter, J. has observed: "This brings us to the examination of section 123(5) with a view to finding out what are its requirements.
We have already indicated that in our opinion the election petitioner must prove in addition to the other ingredients of the section that the vehicle was used for free conveyance of voters which ingredient we have stated was not attempted to be established in the case. . .
This section defined one of the corrupt practices and it consists of hiring and procuring whether on payment or otherwise of any vehicle.
This hiring and procuring must be by any other person with the consent of the candidate or his election agent and the hiring according to the section must be for the free conveyance of any elector other than the candidate himself or members of his family or his agent to and from any polling station.
It will, therefore, appear that the section requires three things, (1) hiring or procuring of a vehicle; (2) by a candidate or his agent etc.
and (3) for the free conveyance of an elector.
It will be noticed that the section also speaks of the use but it speaks of the use of such vehicle which 17 connects the two parts, namely, hiring or procuring of vehicle and the use.
The requirement of the law therefore is that in addition to proving the hiring or procuring and the carriage of electors to and from any polling station, it should also be proved that the electors used the vehicle free of cost to themselves.
" In Razik Ram vs Jaswant Singh Chouhan, Sarkaria, J. speaking for himself and Alagiriswami, J. has observed: "On analysis, clause (5) of Section 123 falls into two parts.
The requirements of the first part are; (i) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel for the free conveyance of voters (ii) Such hiring or procuring must be by a candidate or his election agent or by any other person with the consent of a candidate or of his election agent.
The second part envisages the "use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family, or his election agent) to or from any polling station".
The two parts are connected by the conjunction "or" which is capable of two constructions.
In one sense, it is a particle coordinating the two parts of the clause and creating an alternative between them.
In the other sense which is akin to the sense of "and" it can be construed as conjoining and combining the first part of the clause with the second.
The latter construction appears to comport better with the aim and object of the amendment of 1966.
In this connection, it is not worthy that even before the amendment, this Court in Balwan Singh vs Lakshmi Narain ; , held that in considering whether a corrupt practice described in Section 123(5) is committed conveying of electors cannot be dissociated from the hiring of a vehicle.
Even if the word "or" is understood as a coordinating conjunction introducing alternatives then also a petitioner in order to succeed on the ground of a corrupt 18 practice under the second part of the clause, must prove, in addition to the use of the vehicle or vessel for the free conveyance of any elector to or from any polling station, the hiring or procuring of that vehicle or vessel.
This is so because the word "such" in the phrase introduced by the 1966 amendment, expressly imports these elements of the first into the second part of the clause.
In the view we take we are fortified by the dictum of this Court in Joshibhai Patel vs Anwar Beg Mirza ; , wherein Hidayatullah, C.J., speaking for the Court analysed the requirements of the clause, thus: It will be noticed that this section also speaks of the use of such vehicle which connects the two parts, namely, hiring or procuring of vehicle and its use.
The requirement of the law therefore is that in addition to proving the hiring or procuring and the carriage of electors to and from any polling station, it should also be proved that the electors used the vehicle free of cost to themselves.
" In Dadasahib Dattatraya Pawar vs Pandurang Raoji, Jagtap, Jaswant Singh, J. speaking for the Court has observed: In regard to section 123(5) of the Representation of People Act, 1951 which before its amendment by Act 47 of 1966 was identical in terms with section 144 1(3) of the Act, it was held by this Court in Shri Balwant Singh vs Shri Lakshmi Narain that in considering whether a corrupt practice described in section 123(5) is committed conveying of electors cannot be dissociated from the hiring of a vehicle.
It has also been held by this Court in Ch.
Razik Ram vs J.S. Chouhan and Ors.
that 19 to establish the corrupt practice under section 123(5) of the Representation of the People Act, 1951, it is necessary for an election petitioner to prove (i) that any vehicle or vessel was hired or was procured, whether on payment or otherwise by the returned candidate or by his election agent or by any other person with the consent of the candidate or of his election agent; (ii) that it was used for conveyance of the electors to or from any polling station and (iii) that such conveyance was free of cost to the electors.
Failure to substantiate any one of these ingredients leads to the collapse of the whole charge.
" We shall now proceed to consider the evidence adduced by the parties alleged by the appellant.
On the day of poll, 12.6.1977 J.K. Dutta, P.W. 69, the then District Magistrate, West Champaran was proceeding to Sikta in a jeep accompanied by the Superintendent of Police in the course of his duties in relation to the election.
Finding a jeep carrying some ladies, P.W. 69 instructed the Superintendent of Police to make the necessary enquiry.
After the necessary enquiry was made by the police the jeep with the occupants and the driver was taken to the police station by the Station House Officer, Sikta Police Station, who found the jeep having been detained by the District Magistrate and the Superintendent of Police on the road near a canal situate about 1.5 or 2 miles away from the Sarakiatola booth when he was proceeding towards Parsa village with some policemen.
Subsequently, the ladies who were in the jeep were taken from the police station by a government jeep to the place from where the private jeep with the occupants and the driver was taken by the officials to the Sikta Police Station.
Anil Kumar, P.W. 73.
the then Superintendent of Police, Bettiah who accompanied P.W. 69, has given a little more detailed evidence regarding what happened when he was accompanying P.W. 69 to Sikta.
He has deposed that since they suspected that the four or five rustic ladies who were being carried by the jeep could not be its owners, he seized the jeep, evidently under the impression that the ladies were being carried free of charge to the booth, near a canal situate about 1.5 or 2 miles from the booth and took it alongwith the driver and its occupants to the police station.
After the statements of the ladies and the driver were recorded by the Station House Officer at the Sikta Police Station, they were taken back 20 by a government jeep to the place from which the private jeep in which they were travelling earlier was seized so that they could go and cast their votes.
P.Ws. 69 and 73 do not remember the number of the jeep and P.W. 69 does not know to whom the jeep belonged.
Amal Ranjan Sarkar, P.W. 81, is the Station House Officer who took the jeep with its occupants and the driver to the police station after he found the jeep having been detained by P.Ws. 69 and 73.
Kabir Ahmad 's nephew Tabrez Ahmad was driving the jeep.
P.W. 81 obtained the statement, exhibit 13, written and signed by Tabrez Ahmad as also the statements of five ladies who were found travelling in the jeep.
The jeep USJ 5226 which was taken into custody was later released to Kabir Ahmad on 17.6.1977 under exhibit (c) after one Managar Prasad, who is proved to have been the polling agent of the respondent, furnished security under exhibit 14 (b).
There is evidence of Sheikh Ejazul, P.W. 8 that the jeep USJ 5226 which was used in the election belonged to Kabir Ahmad and that it was driven by Tabrez Ahmad.
There is evidence to show that Kabir Ahmad 's brother Nazir Ahmad was another polling agent to the respondent like Managar Prasad.
The learned Trial Judge has found that Managar Parasad was the respondent 's polling agent.
This fact, to which our attention was drawn by Mr. Shanti Bhushan was not disputed by the respondent 's learned counsel.
The respondent, R.W. 45 has admitted that Kabir Ahmad 's brother Nazir Ahmad was his polling agent and that Tabrez Ahmad is the nephew of Kabir Ahmad and Nazir Ahmad.
But he has stated that the does not know if Managar Prasad whom he knows was his polling agent or whether he had furnished security for the release of the jeep by the Police to Kabir Ahmad.
D.N. Pandey, P.W. 75 the then Anchal Adhikari of Sikta who had been deputed to work as the Sub Zonal officer during the election in 1977 has also deposed about the seizure of Kabir Ahmad 's jeep driven by Tabrez Ahmad.
He was present at the Sikta Police Station when the jeep with some women sitting in it was brought to the police station.
He has stated that Kabir Ahmad, who was very friendly with respondent, came to the police station to get the women and the jeep released from the custody of the police.
The evidence of Muratiwa @ Deokha, P.W. 10, Mehrunoissa, P.W. 11 and Rasulia, P.W. 42 who travelled in the jeep alongwith two other ladies including Queresha P.W. 67 21 is that Kabir Ahmad got them released from the police station on the day of the poll after they and the two other ladies who were travelling with them by the jeep had been taken to the police station.
The aforesaid evidence of P.Ws. 69, 73, 81, 75, 10, 11 and 42 which has not been seriously challenged in the cross examination establishes satisfactorily that the jeep USJ 5226 belonging to Kabir Ahmad was seen being driven by Kabir Ahmad 's nephew Tabraz Ahmad with five women electors including P.Ws. 10, 11, 42 and 67 on the road near a canal situate about 1 or two miles away from the Sarakiatola booth on the day of the poll, that the jeep with the ladies and the driver was seized on suspicion that it was being used for carrying electors to the booth free of cost, that the statements of the five ladies and the driver Tabrez Ahmad were recorded at the Sikta Police Station by the Station House officer, P.W. 81, in the presence of P.Ws. 69, 73 and 75, that Kabir Ahmad got the ladies released from police custody on the same day and they were thereafter brought by a government jeep from the police station to the place from where they had been previously taken to the police station in Kabir Ahmad 's jeep, that the jeep was released to Kabir Ahmad on 17.6.1977 under exhibit 14(c) and that the respondent 's polling agent Manager Prasad furnished security under exhibit 14(b) for the release of the jeep to Kabir Ahmad.
The appellant 's contention is that the respondent procured the jeep USJ 5226 from Kabir Ahmad and it was used for the conveyance of electors free of cost to themselves for the purpose of casting votes in favour of the respondent and that the respondent is thus guilty of corrupt practice under section 123(5) of the Act.
The evidence referred to above establishes the requirement of clause (5) of s 123 that the vehicle USJ 5226 which is proved to belong to the respondents close friend Kabir Ahmad was used for the conveyance of electors who were proceeding to cast votes in favour of the respondent on the day of the poll.
It is not possible to agree with the learned Trial Judge that what this evidence establishes is only an attempt to convey electors to the polling booth and not actual conveyance of the electors merely because the jeep with the electors who were being carried in it was intercepted at a distance of 1 or 2 miles away from the booth and taken to the police station by the official who had suspected that an election 22 offence had been committed.
The jeep was seized when it was being used for carrying electors who were proceeding to vote for the respondent, no doubt at a distance of 1 or 2 miles away from the polling booth.
Even the learned counsel for the respondent did not contend before us that what has.
been established is only an attempt at conveying electors by the jeep of Kabir Ahmad to the polling booth and not actual conveyance.
There is overwhelming evidence on record including that of the Anchal Adhikari, P.W. 75 who had worked as the Secretary of a Cement Committee of which the respondent was the President, to show that the respondent is a good friend of Kabir Ahmad, whose brother Nazir Ahmad was admittedly the respondent 's polling agent.
The respondent had used to him for the purchase of a motor cycle for the benefit of Nazir Ahmad who admittedly advanced the money required for its purchase and was using the vehicle which stood nominally registered in the name of the respondent.
The respondent has professed ignorance in his evidence whether Kabir Ahmad owned the jeep USJ 5226 at all and he has denied that the jeep was used for carrying electors for casting votes in his favour on the day of poll.
A reading of the evidence of R.W. 45 shows that his evidence is totally unreliable.
We may state at this stage that the respondent 's learned counsel Mr. S.K. Sinha found it practically impossible to deny any aspect of the appellant 's case in regard to this item of corrupt practice except the part relating to the procurement of the jeep USJ 5226 by the respondent from its owner Kabir Ahmad.
We find that this part of the appellants case relating to this item of corrupt practice is clearly established by the evidence referred to above.
The next point for consideration is whether the electors were carried free of cost to themselves by the jeep USJ 5226 on the day of poll.
On this aspect of the appellants case there is direct evidence of the electors P.Ws. 10, 11 and 42 besides that of some other evidence.
The appellant 's polling agent Jang Bahadur Mian, P.W.6, has stated in his evidence that the jeep 23 USJ 5226 was being used for carrying electors to cast votes in favour of the respondent, that the respondent met the expenses of electors and that the jeep was seized by the District Magistrate and the police on the day of poll.
He has denied the suggestion that the jeep USJ 5226 was not used for carrying electors at all.
In view of the other evidence referred to above we are of the opinion that there is no substance at all in this suggestion made P.W. 9 who was an elector from Parsa village in the election held in 1977 has stated in his evidence that electors were carried by Kabir Ahmad 's jeep on behalf of the respondent.
The suggestion made to him and denied by him is that he has given false evidence.
The electors P.Ws. 10, 11 and 42 belong to same Parsa Village.
P.W. 10 has stated that Kabir Ahmad has asked her to vote for the candidate whose symbol consisted of cow and calf, i.e. the respondent, that she and four other women electors were being carried in Kabir Ahmad 's jeep driven by Kabir Ahmad 's nephew when the jeep was seized and taken to the police station and that they did not pay anything to the owner or the driver of the jeep for their conveyance.
To the same effect is the evidence of P.Ws. 11 and 42 who also have stated clearly in their evidence that they did not pay anything for their conveyance to the owner or the owner or the driver of the jeep and that they and the other women were carried in the jeep free of cost to themselves.
What has been elicited from P.W. 10 in the cross examination is that she does not know the names of the other ladies who travelled with her in the jeep.
P.W. 11 has denied the suggestion that she has been tutored to give false evidence.
P.W. 42 has denied the suggestion that she was not an elector at all and that she has given false evidence.
P.W. 10 is a Hindu while PWs.
11, 42 and 67 are Muslims.
Yaqub Mian, PW 43, the husband of P.W. 42 also has stated in his evidence that the electors were carried by the jeep free of cost and that after learning that the jeep had been taken to the police station he went to the police station and found that Kabir Ahmad had already obtained the release of the electors from the police.
He too has denied the suggestion that he has been tutored to give false evidence and that he had worked for the appellant in that election.
We are of the opinion that there is no reason for disbelieving the evidence of P.Ws. 10, 11, 42 and 43 that the electors who travelled by the jeep which was intercepted by the officials and taken to the police 24 station were being carried to the polling booth free of cost to themselves for casting their votes in favour of the respondent.
This part of the appellant 's case is clearly proved by the evidence of these four witnesses.
We may state that the respondent 's learned counsel has not disputed that the evidence of these four witnesses proves that the electors were being carried to the booth by the jeep USJ 5226 for casting their votes in favour of the respondent free of cost to themselves.
We find that the evidence referred to above proves the second requirement of clause (5) of section 123 of the Act.
The third point which alone is seriously disputed by the learned counsel for the respondent is the question of procuring Kabir Ahmed 's jeep USJ 5226 by the respondent for carrying electors to vote for him.
Since it has been found that the jeep USJ 5226 belonging to the respondent 's close friend Kabir Ahmed was actually used for the conveyance of voters who were proceeding to cast votes in favour of the respondent free of cost to themselves, the jeep could have been put in use for the purpose either by Kabir Ahmed himself or some other person without reference to the respondent or his agent or it could have been procured by the respondent.
It could not have become available for carrying electors who were proceeding to vote for the respondent in any other manner.
It is not the respondent 's case that Kabir Ahmed or any other person put the jeep to use for carrying electors to vote for him free of cost to themselves without any reference whatsoever to him.
The details relating to the jeep USJ 5226 had been given in the election petition.
The respondent could have made necessary enquiries from Kabir Ahmed, the owner of the jeep and pleaded that the jeep was used for carrying electors for his benefit without any reference to him voluntarily by its owner Kabir Ahmed or by any other person if that were so.
The respondent has not come forward with any such plea.
Therefore, it is not possible to accept the submission of the respondent 's learned counsel Mr. S.K. Sinha that in view of the fact that it is the appellant 's case that Kabir Ahmed is a very close friend of the respondent, Kabir Ahmed himself could have put his jeep to use for carrying electors for the benefit of the respondent without any request for the use or the jeep on the part of 25 the respondent.
Therefore, the only other possibility is that the respondent or someone else acting as his agent had procured the jeep from Kabir Ahmed for the purpose of using it for the benefit of the respondent in connection with the election, namely, to carry electors for voting in his favour free of cost to themselves.
Having regard to this probability we are of the opinion that even slight evidence in this regard would be sufficient for proving this aspect of the appellant 's case.
Regarding this aspect of the appellant 's, case on the side of the respondent there is the interested evidence of the respondent alone and he has stated that he had not asked for any jeep or any other help from Kabir Ahmed in connection with the election held in 1977 and that Kabir Ahmed did not help him in any way in that election.
The evidence of the respondent is absolutely unreliable as stated earlier having regard to the fact that it is clearly established by the evidence that the jeep USJ 5226 belonging to Kabir Ahmed was actually used for carrying electors who were proceeding to vote in favour of the respondent free of cost to themselves and that it was seized by the officials when it was being driven by Kabir Ahmed 's nephew Tabrez Ahmed, white the electors seated in the jeep.
The evidence on record clearly proves and it is not challenged by the respondent 's learned counsel but is on the other hand conceded by him that Kabir Ahmed had helped the respondent by allowing his jeep USJ 5226 driven by his own nephew Tabrez Ahmed for the free conveyance of electors who were proceeding to the booth for voting in favour of the respondent.
The appellant 's polling agent P.W. 6 has stated in his evidence that the respondent had borrowed Kabir Ahmed 's jeep for the conveyance of electors from their respective places to the booth had for their return to their places from the booth.
He has also stated that one of the two jeeps used for carrying electors to vote for the respondent is USJ 5226.
He has denied the suggestion that the jeep USJ 5226 was not used at all for carrying electors on the day of poll.
Sahib Mian, P.W. 16 is a muslim barber belonging to Haripur, which is also known as Sikta.
He was an elector who had cast his vote in the election held in 1977.
He knows the respondent as well as Kabir Ahmed who 26 owns a jeep and a mill at Parsa.
He has deposed that when he was given a share to Kabir Ahmed at his mill in Parsa, three persons including the respondent went there and that the respondent asked, Kabir Ahmed agreed to give it to him.
He has denied the suggestion that he has given false evidence.
P.W. 43 has stated in his evidence that the respondent and Kabir Ahmed went to his village on day prior to the day of the poll and asked him to vote for the respondent and told him that a jeep had been borrowed from Kabir Ahmed to carry voters and that accordingly a jeep driven by Tabrej Ahmed came on the next day and carried female electors.
No doubt, P.W. 43 and his wife P.W. 42 are casual laborers P.W. 43 has denied the suggestion that he had worked for the appellant in that election and that he has been tutored to give false evidence.
There is no satisfactory reason for disbelieving the evidence of these three witnesses P.Ws. 6, 16 and 43 of whom P.W. 6 was no doubt the appellant 's polling agent.
It is not possible to reject the evidence of P.W. 6 merely because he was admittedly the appellant 's polling agent, especially having regard to the fact that his evidence is in a way corroborated by the evidence of P.Ws. 16 and 43.
The respondent R.W. 43 has admitted in his evidence that Kabir Ahmed and others own a mill and that Kabir Ahmed is a partner in that mill business.
As stated earlier, he has admitted that Kabir Ahmed 's brother Nazir Ahmed was his polling agent and that Tabrez Ahmed is the nephew of Kabir Ahmed and Nazir Ahmed.
The evidence of P.W. 75 shows that Tabrej Ahmed did not even hold driving licence when the was found to be driving the jeep USJ 5226 carrying electors to the booth on the day of poll and that he was prosecuted separately for that offence under the Motors Vehicles Act.
There is evidence of Daroga Mahato, P.W. 56, to show that the respondent and Kabir Ahmed were good friends and that Kabir Ahmad 's father Sharif Ahmad was sitting about 100 yards away from the booth on the day of poll.
The learned Trial Judge has found that Kabir Ahmad is a good friend of the respondent and that he and his father had worked for the respondent in the election held in 1977.
Inspite of all these facts the respondent has not called Kabir Ahmad as his witness to deny that he had procured the jeep USJ 5116 from Kabir Ahmed for the conveyance of his electors.
He has not examined even Tabrez Ahmad though he had been admittedly named as one of his witnesses in 27 the list of witnesses submitted on his behalf.
He would say that to the best of his knowledge Kabir Ahmad did not possess any jeep and that he submitted the list of witnesses by merely looking into the voters list without applying his mind because he was pressurized by his lawyer to file a tentative list of witnesses as soon as possible and was informed by his lawyer that if he did not file his list of witnesses he would lose his case on that ground alone.
It is not possible to accept this evidence of the respondent as well having regard to the fact that it is stated without any denial that he himself is a lawyer, it is improbable that he would have been pressurize by his lawyer and that he filed the list of witnesses merely by booking into the voters ' list without applying his mind as to who should be cited as his witness.
In these circumstances, we are of the opinion that it is not possible to place any reliance on the interested evidence of the respondent R.W. 45 on the question of procuring the jeep USJ 5226 from its owner Kabir Ahmad.
The evidence of P.W. 16 is most natural and reliable.
There is absolutely no reason whatsoever for rejecting his evidence which could not be outrode evidence.
We accept the evidence of P.Ws. 6, 16 and 43 on this aspect of the appellant 's case and find that the respondent had procured the jeep USJ 5226 from his close friend Kabir Ahmad for the free conveyance of his electors and that the jeep was, thereafter used for that purpose on the day of poll and seized by the officials P.Ws. 69, 73 and 81 when it was being used for the conveyance of the electors P.Ws. 10,11, 42 and others including P.W. 67 free of cost to themselves.
The appellant has thus proved satisfactorily all the three requirements of clause (5) of section 123 of the Act.
The respondent has therefore, to be held guilty of corrupt practice falling under that clause which is ordinarily difficult to prove.
We think that such corrupt practice which is very largely resorted to in the elections could be avoided by either locating polling booths within walking distance of the electors or by having mobile polling stations.
We accordingly allow this appeal in regard to this item of corrupt practical one with costs qualified Rs. 5,000 and hold that the res 28 pondent was guilty of corrupt practice under section 123(5) of the Act in regard to his election in 1977 as a member of the Bihar Legislative Assembly from No. 5 Sikta Constituency in West Champaran district.
N.V.K. Appeal allowed.

summary:
The respondent was elected to a State Assembly Constituency.
The appellant who had contested the election pleaded four items of corrupt practice in his Election Petition filed against the respondent.
The Legislative Assembly to which the respondent was elected has been dissolved and a fresh election has been held.
Notwithstanding, the fresh election the appellant pursued his election petition in order to prove corrupt practice on the part of the respondent.
In his election petition, the appellant pleaded that the respondent committed a corrupt practice falling under section 123 (5) of the Representation of the People Act, 1951 by procuring and using a jeep for the free conveyance of voters to the polling station on the date of poll.
The respondent denied the charge and contended that the appellant had not complied with the mandatory provisions of sections 81, 82 and 83 of the Act read with Order VI, Rule 15 of the Code of Civil Procedure and section 117 of the Act and the election petition was therefore liable to be dismissed.
The Judge who tried the petition, followed this Court 's ruling in Rahim Khan vs Khurshid Ahmed that Proceedings arising out of 12 election petitions are quasi criminal in nature and that evidence relating to corrupt practices should be scrutinized with scrupulous care and merciless severity; considered the evidence adduced by the parties, and found that the jeep bearing No. USJ 5226 while carrying five ladies including P.Ws. 10, 11, 42 who were voters, free of cost, for casting votes on behalf of the respondent was seized by the District Magistrate and the Superintendent of Police about 1.5 miles from the polling booth and that at the time of the seizure, the jeep was driven by a close friend of the respondent and that this friend had worked for the respondent in the election and was present in the booth on the date of the polling and that the respondent 's polling agent stood surety for the release of the jeep.
The Judge held that these facts were not sufficient to hold that the respondent procured the jeep, and that since the jeep with the voters was caught not at the polling station but at some distance way from it, it was only a case of an attempt at corrupt practice and not corrupt practice itself under section 123 (5) of the Act, and dismissed the election petition.
Allowing the appeal, this Court, ^ HELD: 1.
The requirement of the law in regard to corrupt practice under section 123 (5) of the Representation of the People Act 1951 is that in addition to proving the hiring or procuring of any vehicle or vessel for the carriage of voters to and from any polling station it should also be proved that the electors used the vehicle or vessel free of cost to themselves.
[17A B] 2.
Section 123 (5) requires three things, (1) hiring or procuring of a vehicle; (2) by a candidate or his agent etc.
and (3) for the free conveyance of an elector.
[16H] Joshibhai Chunibhai Patel vs Anwar Beg Mirza, ; , Razik Ram vs Jaswant Singh Chouhan, at 775 and Dadasahib Dattatraya Pawar vs Pandurang Raoji Jagtap, ; at 528, refereed to.
The appellant has proved satisfactorily all the three requirements of clause (5) of section 123 of the Act.
The respondent has therefore to be held guilty of corrupt practice falling under this clause which is ordinarily difficult to prove.
[27F] In the instant case, the evidence of P.Ws. 6, 16 and 43 reveal that the respondent had procured the jeep USJ 5226 from his close friend, Kabir Ahmed for the free conveyance of his electors and that the jeep was, thereafter, used for that purpose on the day of poll, and seized by the officials, P. W 69 District Magistrate, P.W. 73 Superintendent of Police and P.W. 81 Station House Officer where it was being used for the conveyance of the electors P.Ws. 10, 11, 42 and others including P.W. 67 free of cost to themselves.
The appellant s case that the respondent committed corrupt practice is clearly established.
[27D E] 13 4.
Corrupt practice such as in the instant case is very largely resorted to in the elections and could be avoided by either locating polling booths within walking distance of the electors or by having mobile polling stations.


judgement:
Civil Appeal Nos.
1891 1895 of 1982.
Appeals by Special leave from the Judgment and order dated the 11th September, 1979 of the Madhya Pradesh High Court in Misc.
Petitions Nos; 77 to 81 of 1979.
J. Ramamurthy and Ms. R. Vaigai for the Appellants.
G.B. Pal, S.K. Gambhir, Ashok Mahajan and Ms. Sunita Kripalani for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
Nothing appears more well settled than that the extraordinary jurisdiction under article 226 conferred on the High Court was a weapon forged to overreach injustice and secure and advance justice.
When therefore, this extraordinary power is used to defeat justice and to promote technicality not only its raison d 'etre is violated but it becomes a handy instrument for those to whom litigation cost is a luxury enjoyed at the cost of others and employed to exhaust and harass an unequal opponent.
Sad as it may appear that unfortunate situation emerges in this appeal.
The first respondent Shree Synthetics Ltd. ( 'respondent ' for short) appears to be a company governed by the .
It has set up a factory at Ujjain where it manufactures polyester fibre.
Appellants in each of these appeals were the workmen of the respondent.
There is a trade union of the workmen employed by the respondent of which at the relevant time three out of the five appellants in this group of appeals were office bearers.
Babulal Nagar was the President of the Union: Babulal Jaiswal was the General Secretary and Ramesh Chandra was the Secretary.
776 According to the respondents on June 3, 1975 around 11.10 P. M. One Verma a workman of the respondent on the shift being over went out of the compound gate and took his seat i l a tempo when Babulal Nagar and Babulal Jaiswal along with three other appellant approached him and asked Verma to alight from the tempo as they wanted to talk to him.
On Verma 's disinclination to come out of.
the vehicle, it was alleged that Babulal Nagar and Babulal Jaiswal pulled Verma out of the vehicle and all the appellants assaulted him with fists and kicks and felled him down as a result of which Verma sustained bleeding injuries on his head.
On hearing the commotion, staff of the security department intervened and rescued him.
Setting out these allegations a charge sheet was drawn up and served on the five appellants followed by a composite domestic enquiry at the end of which all of them were dismissed from service.
The appellants moved five different applications before the labour Court questioning the validity of the domestic enquiry held against them as also the legality and propriety of the orders terminating their services.
The Labour Court was of the opinion that the domestic enquiry was held according to the relevant rules and as there was evidence in support of the alleged misconduct the management was justified in imposing the penalty of dismissal from service and accordingly all the five applications were dismissed.
The appellants filed five separate revision petitions before the industrial Court under Secs.
66 and 67 of the Madhya Pradesh Industrial Relations Act, 1950 Act for short).
All the five revision petitions were heard by the President of the Industrial Court at Indore who was of the opinion that the entire approach of the inquiry officer Manager in arriving at the findings of misconduct in his enquiry appear to be biased and unfair and that the conclusions are neither fair nor reasonable and as such the dismissal cannot be sustained on the basis thereof Accordingly he, by a common judgment dated February 26, 1979, allowed all the revision petitions and set aside the orders of the Labour Court dismissing the applications and remanded the matters to the Labour Court for a fresh decision after giving both the parties due opportunity to adduce evidence in respect of the alleged misconduct.
The respondent moved five separate misc.
petitions in the High 777 Court of Madhya Pradesh, Jabalpur at Indore under articles 226 and 227 of the Constitution questioning the correctness of the decision of the Industrial Court.
A Division Bench of the High Court held that the Industrial Court exceeded its jurisdiction by interfering with the findings of facts and this was ill error apparent on the face of the award.
Accordingly, it issued a writ of certiorari and quashed the decision of the Industrial Court.
Hence these five civil appeals by special leave.
Conditions of service in respect of the employees employed by the respondent are governed by the Certified standing orders.
section O. 12 (f) which was relied upon by the respondent for imputing mis conduct to the appellants reads as under: "12.
Disciplinary action for misconduct (l) The following acts or omissions on the part of an employee shall amount to a major misconduct: (a) to (e) xx xx xx (f) drunkenness, riotous or disorderly behaviour, during working hours at the undertaking or conduct endangering the life or safety of any person, intimidation, physical duress, or any act subversive of discipline.
The allegation in the charge sheet on the basis of which the domestic enquiry was held reads as under: F "Babulal was on duty on 3.6.1975 in the B Shift from 3 p. m. to 11 p. m.
At about 8.15 p.m. when Shri Satya Prakash Verma, a Telephone Operator and Shri K. C. Bagdi, Shift time keeper were coming out of the canteen after taking their meals, Babulal Nagar and Babulal Jaiswal were sitting in the lawn in front of the canteen.
At that time, Babulal Jaiswal asked Babulal Nagar to explain to Verma the whole position in Hindi.
There upon Babulal Nagar went to Bagdi and Verma and uttered the following meaningful words: You are just a child now.
You do not understand anything; if you interfere in this, you will have to pay a heavy price, (true translation) Verma gave no reply and both Verma and Bagdi 778 went into the office.
Thereafter, at 9.15 p.m. A. K. Awasthi and Rajendra Jain went to the canteen to take their meals.
At that time both the petitioners namely, Babulal Nagar and Babulal Jaiswal were present there.
Babulal Nagar took out a false token and challenged that it may be checked by any security official.
Rajendra Jain thereupon said that he was not in his uniform.
At that time, Babulal Jaiswal uttered some filthy words and thereafter both Babulal Nagar and Babulal Jaiswal left the canteen uttering filthy abuses.
At 9.30 p.m. Babulal Nagar spoke to Verma on telephone that he should come out of the Plant as he wanted to talk to him.
Verma, therefore, come out in the lawn from his office where both Babulal Nagar and Babulal Jaiswal were present.
At that time, Babulal Jaiswal said to Verma as under: "You have put end to our movement.
In future things will not be right, if you interfere with us, and threatened, that we shall see at 11 O ' clock outside the gate.
(true translation) After the shift was over at about 11.10 p m. whom Verma went out of the gate and took his seat in the tempo.
Babulal Nagar and Babulal Jaiswal along with the other three petitioners went to him and asked Verma to come out of the tempo as they wanted to talk to him.
Verma replied that they could talk to him there.
Thereupon both Babulal Nagar and Babulal Jaiswal pulled Verma out of the tempo and all the petitioners assaulted Verma with fists and kicks and felled him down as a result of which he sustained a bleeding injury on his head.
On hearing the cresc of Verma members of the security Department rescued him and took him inside the gate.
Apart from anything else, a very serious question touching upon the jurisdiction of the Disciplinary Authority to hold an enquiry on the allegation that S.O. 12 (1) (f) was violated would arise before the Labour Court more particularly in view of the recent decision of this Court in M/s Glaxo Laboratories (I) Ltd. vs Presiding officer, Labour Court, Meerut & Ors.
wherein section O. 22 applicable to Glaxo Laboratories (I) Ltd. wh ch is in pari materia 779 with the section O. 12 (1) (f) came up for construction of this Court.
After an exhaustive review of the various decisions: on the subject, this Court after repelling the construction canvassed on behalf: of the appellant in that case that such acts as drunkenness, riotous or disorderly behaviour are per se misconduct uncomplicated with time place content and wherever committed would constitute misconduct, held that the various acts of misconduct therein set out would be misconduct for the purpose of the relevant standing orders, if committed within the premises of the establishment or in the vicinity thereof.
The Court further held that what constitutes establishment or its vicinity would depend upon the facts and circumstances of each case.
But we shall not finally pronounce on this point as the industrial Court had remanded the matter to the Labour Court which has jurisdiction to examine this case and we are inclined to uphold that order.
Therefore, the narrow question which we propose to examine in this case is whether the High Court in exercise of its extraordinary jurisdiction under articles 226 and 227 should have by giving undue importance to a technical objection of jurisdiction which on proper fathoming, it itself lacked should have set aside a well considered reasoned judgment of the President of the Industrial Court which again had merely remanded the matter thus prolonging to some extent the agony of the unemployed workers commencing from 1975.
Let us at the commencement acquaint ourselves with the scope and ambit of the power of the Labour Court as such as the Industrial Court under the Act which would provide a correct perspective to determine whether the High Court in exercise of its extraordinary jurisdiction under articles 226 and 227 was at all justified in interfering with the order mad, by the Industrial Court or that legalese prevailed over substantial social justice.
61 prescribes the powers of the Labour Court which inter alia includes the power (A) to decide (a) disputes regarding which application has been made to it under sub section (3) of section 31 of the Act Sec.
31 enables an employee to make an application for relief against all order of an Employer made under ally of the standing orders.
Dismissal from service is an order made under the relevant standing orders.
A relief against such order can be obtained by making all application under Sec.
Entry I in 780 Schedule II of the Act prior to the amendment of 1981 Provided that the Labour Court may examine: "the propriety or legality of an order passed or action taken by an employer acting or purporting to act under the Standing orders.
The only feature worth noticing is that the scope ambit and contours of the jurisdiction of the Labour Court in such an application would have to be determined within the parameters or the expression the propriety or legality of an order.
Against an order made by the Labour Court under Sec.
61, a revision would lie under Sec. 66 to the Industrial Court.
Sec. 66 has been wholly recast in 1981.
However at the relevant time, Sec. 66 read as under: "66; Revision.
(1) The Industrial Court may, on the application by any party to a case which has been finally decided by a Labour Court other than a case decided under paragraph (D) of sub section (1) of section 61, call for and examine the record of such case and may pass order in reference thereto as it thinks fit: Provided that the Industrial Court shall not vary or reverse any order of the Labour Court under this section (i) it is satisfied that the Labour Court has (a) exercised jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in exercise of its jurisdiction illegally to material irregularity; (ii) notice has been served on the parties to the case and opportunity given to them for being heard.
(2) No application under sub section (I) shall lie to the Industrial Court unless it is made within thirty days of the date on which the case has been finally decided by the Labour Court; 781 Provided that in computing the period of thirty days the period requisite for obtaining a copy of the order shall be excluded.
" Having noticed the relevant provisions, it is now necessary to ascertain with precision the jurisdiction of the Labour Court under Sec.
The scheme of the standing orders applicable to the respondent Company would show that a penalty of dismissal or removal from service can be imposed after holding a domestic enquiry According to the relevant provisions in the standing orders, such an order when made would be open to challenge by a substantive application under Sec. 66 (1) and in such an application if and when made, the Labour Court will have jurisdiction to decide the legality and the propriety of the order.
When jurisdiction is conferred union the Labour Court, not only to examine the legality of the order as also the propriety of the order, the Labour Court can in exercise of the jurisdiction examine the propriety or impropriety of the order.
The expression 'propriety ' is variously understood, one meaning assigned to it being 'justice ' in Legal Thesaurus by Burton at page 902.
Amongst various shades of meaning assigned to the expression, the oxford English Dictionary, VOl.
VIII page 1484 sets out 'fitness; appropriateness; aptitude; suitability; appropriateness the circumstances or conditions, conformity with requirement; rule or principle, rightness, correctness, justness etc. ' If therefore, the justice or the justness in relation to a legal proceeding where evidence is led is questioned and the authority is conferred with jurisdiction to examine the propriety of the order or decision that authority will have the same jurisdiction as the original authority to come to a different conclusion on the same set of facts.
If any other view is taken the expression 'propriety ' would lose all significance.
The expression 'legality and propriety ' has been used in various statutes where appellate or revision jurisdiction is conferred upon a superior authority.
In Raman & Raman Ltd. vs The State of Madras & Anr.
while examining the ambit of the jurisdiction of the State Government under Sec.
64A of the as amended by the Motor Vehicles (Madras) Amendment Act, 1948 to interfere with the orders of subordinate Regional Transport Authority on the ground of propriety, this Court observed as under: "The word "propriety" has nowhere been defined in the Act and is capable of a variety of meanings.
In the 782 Oxford English Dictionary (Vol. VIII), it has been stated to mean "fitness; appropriateness; aptitude; suitability; appropriateness to the circumstances or conditions; conformity with requirement, rule or principle; rightness, correctness, justness, accuracy".
If the State Government was of the opinion that respondent No. I had better facilities for operation than the appellant and their service to the public would be more beneficial, lt could not be said that the State Government was in error in thinking that the order of the Board confirming the order of the Regional Trans port Authority was improper.
" In Moti Ram vs Suraj Bhan & Ors.
while examining the scope and ambit of jurisdiction of the High Court under Sec.
15 (5) of the East Punjab Urban Rent Restriction Act, 1949, this Court observed as under: "Under Sec. 15 (5) the High Court has jurisdiction to examine the legality or propriety of the order under revision and that would clearly justify the examination of the propriety or legality of the finding made by the authorities in the present case about the requirement of the landlord under section 13 (3) (a) (iii).
" After referring to these two decisions, in Ching Chong Sine vs Puttay Gowder, Alagiriswami, J. held that tho court exercising revisional jurisdiction to decide the legality or propriety of an order has the power to come to a conclusion different from that arrived by the subordinate court on the same set of circumstances.
In Ahmedabad Sarangpur Mills Company Ltd vs Industrial Court, Ahmedabad and Anr.
a Division Bench of the Gujarat High Court held that the expression 'legality and propriety ' in section 78(1) of the Bombay Industrial Relations Act does not limit the jurisdiction of the labour court to a revisional jurisdiction.
And that any order made by the employer under the standing order is subject to the jurisdiction conferred on the labour court under Sec. 78, which can scrutinise the legality and propriety of the order.
This jurisdiction was described by the court as original jurisdiction meaning thereby that the labour 783 court can come to an entirely different conclusion on the same set of facts.
This view was followed by another Division Bench of the Gujarat High Court in Manekchown and Ahmedabad Manufacturing Company Ltd vs Industrial Court, and another.
In Vithoba Maruti Chavan vs section Taki Bilgrami, Member Industrial Court, Bombay and Anr., a Division Bench of the Bombay High Court held that the power to decide 'propriety ' and legality of the order made under standing order does not confer a mere revisional jurisdiction but a wider jurisdiction which will enable the Labour Court to set aside the order of the employer depending upon the facts and circumstances of the case.
Mr. Pai on the other hand drew our attention to Vaidyanath vs The Madhya Pradesh vs State Road Transport Corporation and Ors.
While observing that a Labour Court cannot exercise the power of an appellate court and cannot reappraise the evidence yet both the Labour Court or the Industrial Tribunal can interfere with the findings of fact of the inquiry officer of the employer only where they are not supported by any legal evidence or are so perverse that no reasonable person would arrive at such findings on the materials placed before him It was held that the power of the Labour Court or the Industrial Court under the Act are not wider than those of Industrial Tribunal under the before the introduction of Sec.
11 A in the latter Act.
In Kymore Cement Mazdoor Congress vs Industrial Court, Indore and Ors., it was held that the expression 'illegally ar with material irregularity in sub cl.
(c) of the first proviso of Sec.
66(1) do not cover either errors of facts or law and they do not refer to the decision arrived at but to the manner in which it is reached.
Approaching the matter from this angle, the High Court set aside the decision of the Industrial Court in revision against the order of the Labour Court on the ground that the Industrial Court had interfered with a finding of fact which even if erroneous would not confer jurisdiction on the Industrial Court to interfere in exercise of revisional jurisdiction Mr. Pai emphasised that the view of M.P. High Court on the interpretation of Sec. 61 should prevail over the view of Gujarat High Court interpreting a different statute.
This does not carry conviction because Sec. 61 of the Act is in pari materia with Sec.
78 784 of the Gujarat Act.
However, it would be profitable to refer to the decision of this Court in Awdesh Kumar Bhatnagar vs The Gwalior Rayon Silk Mfg.
(Weaving) Co. Ltd. and Anr.
in which this Court while examining the scope of the jurisdiction conferred by Sec. 66 on the Industrial Court under the Act held that if the Labour Court has committed serious mistakes, the Industrial Court has jurisdiction to interfere with the same and upheld the decision of the Industrial Court which had interfered with the findings of facts recorded by the Labour Court A full Bench of the Madhya Pradesh High Court in Nand Kumar Singh vs The State Industrial Court, Indore and Ors held that perverse or arbitrary findings based on no material fall within the ambit of the phrase "exercise of jurisdiction illegally or with material irregularity" justifying interference in revision.
It is not necessary to further multiply the authorities.
Therefore, it appears well established that the Labour Court having jurisdiction to examine the legality and propriety of the order made by the employer under the standing order will have jurisdiction to examine the propriety of the order which will permit it to come to a conclusion different from the role to which the employer arrived at Such being the amplitude of the jurisdiction of the Labour Court if upon a wrong view of ambit of its jurisdiction Labour Court approaches the matter as if it exercises narrow revisional jurisdiction, the industrial Court in revision can interfere on the ground of failure to exercise jurisdiction vested in the Labour Court or material irregularity in exercise of its jurisdiction.
66(1) of the Act provides that the Industrial Court omitting the portion not relevant for the present purpose, may call for and examine the record of such case and pass order in reference thereto as it thanks fit.
If the Industrial Court has the jurisdiction to pass any order in reference to a case called for by it thinks fit, obviously it can come to a conclusion on the same set of facts different from the one to which the Labour Court had arrived.
It was however urged that this jurisdiction of wide amplitude has been cut down by the proviso which provides that the Industrial Court shall not very or reverse any order of the Labour Court under Sec.
66(1) unless (i) it is satisfied that the Labour Court has (a) exercised jurisdiction not vested in it by law; or (b) failed to exercise a 785 jurisdiction so vested; or (c) acted in exercise of its jurisdiction A illegally or with material irregularity.
It was urged that these clauses so circumscribe and cut down the jurisdiction of the Industrial Court under Sec. 66 as to be on par with Sec. 115 of the Code of Civil Procedure.
The main part of Sec.
61 clearly spells out the jurisdiction of the Industrial Court to pass any order in reference to the case brought before it as it thinks fit.
The expression 'as it thinks fit ' confers a very wide jurisdiction enabling it to take an entirely different view on the same set of facts.
The expression 'as it thinks fit ' confers a very wide jurisdiction enabling it to take an entirely different view on the same set of facts The expression 'as it thinks fit ' has the same connotation, unless context otherwise indicates, 'as he deems fit ' and the latter expression was interpreted by this Court in Raja Ram Mahadev Paranjype & Ors.
vs Aba Maruti Mali & Ors to mean to make an order in terms of the statute, an order which would give effect to a right which the Act has elsewhere conferred.
Is this jurisdiction so circumscribed as to bring it on par with Sec. 115 of the, Code of Civil Procedure ? Proviso does cut down the ambit of the main provision but it cannot be interpreted to denude the main provision of any efficacy and reduce it to a paper provision.
Both must be so interpreted as to permit interference which if not undertaken there would be miscarriage of justice.
Sub cl.
(c) of the first proviso to Sec.
66(1) will permit the Industrial Court to interfere with the order made by the Labour Court, if the Labour Court has acted with material irregularity in disposal of the dispute before it.
If the finding recorded by the Labour court is.
such to which no reasonable man can arrive, obviously, the Industrial Court in exercise of its revisional jurisdiction would be entitled to interfere with the same even if patent jurisdictional error is not pointed out.
Reverting to the facts of this case, the Industrial Court while having the revision petitions found that the petitioners were trade union workers and the three of them were the office bearers of the Union.
It was further found that a material piece of evidence clearly pointing to the contrary was wholly overlooked by the inquiry officer.
It extracted the relevant portion of the evidence of witness Balchand and pointed out in no uncertain terms that if the inquiry officer had taken note of the relevant piece of evidence and 786 had applied its mind to it and dealt with it in the report, it would have been difficult to hold the charge proved.
The non application of mind of the inquiry officer was pointed out by referring to that part of the final order which manifestly overlooked the material piece of evidence which would go to the root of the matter.
The Industrial Court observed that the inquiry officer quitely skipped over very material portion of the evidence of Balchand which went a long way to falsify the charges relating to the incidents which preceded the actual assault on Verma. 'The Industrial Court then pointed out that report (exhibit D/18) purporting to have been made by victim Verma to the factory Manager on the day following the date of the occurrence when properly scanned appears to be a highly suspicious evidence because: 'it is not dated aud does not bear the endorsement of the officer to whom it was presented. ' This is permissible because the revisional jurisdiction enables the authority to point something which is no evidence legally speaking or in the eye of law.
It was pointed out that Verma did not identify the report.
The Industrial Court concluded that the possibility of this report being introduced at a later stage to strengthen the case against the live appellants cannot be ruled out.
After referring to other infirmities in the approach of the Labour Court, the Industrial Court concluded that the entire approach of the Manager in arriving at the findings of misconduct in his inquiry 'appear to be biased and unfair ', and 'the conclusions are neither fair nor reasonable and any order of dismissal based thereon cannot be sustained. ' Can it ever be said that in reaching this conclusion, the Industrial Court exceeded its revisional jurisdiction ? The whole approach of the Labour Court dealing with the report of the inquiry as also the inquiry itself clearly disclosed material irregularity and thereby the Labour Court failed to exercise jurisdiction vested in it namely, to examine the property of the order with in it failed to do.
The Industrial Court in our opinion, was perfectly justified in interfering with the order of the Labour Court.
Even then the approach of the Industrial Court, being conscious of the severe constraints on its jurisdiction was of dignified restraint and just.
It merely set aside the award of the Labour Court and did not proceed to reappraise evidence but remitted the case to the Labour Court for a fresh decision.
It was thus an eminently just order.
Is it such an order which the High Court could have interfered with in exercise of its extraordinary jurisdiction ? The High Court 787 observed that the Labour Court can only interfere with the decision of the inquiry officer, if the findings arrived at by him were perverse.
The High Court completely missed the ambit of jurisdiction of the Labour Court in that it had the jurisdiction to decide the legality and propriety of the order.
Impropriety as converse of propriety cannot be equated with perversity as understood by the High Court.
The High Court further observed that if 'the finding of the misconduct is a plausible conclusion flowing from the evidence adduced at the enquiry, the labour tribunals have no jurisdiction to sit in judgment over the decision of the employer, as an appellate body.
This betrays complete lack of understanding of the jurisdiction of the Labour Court in respect of an order made under the standing order as set out in Schedule II item I to the Act which enables the Labour Court to examine the legality and propriety of the order.
The High Court therefore, wholly misread the relevant provision and interfered with the decision of the Industrial Court which was pre eminently just and within the four corners of its jurisdiction.
What left us guessing was that according to the High Court the Industrial Court had narrow jurisdiction while dealing with the order of the Labour Court, yet the High Court in exercise of its extraordinary jurisdiction interfered with the decision of the Industrial Tribunal.
Times without number, it has been pointed out that article 225 is a device to secure and advance justice and not otherwise.
(Sadhu Ram vs Delhi Transport Corporation) Ordinarily, the courts exercising extraordinary jurisdiction is loathe to interfere with an order remanding the matter to the authority directed to investigate facts.
The Industrial Court had made an order of remand.
The High Court was not justified in interfering with the same.
By this uncalled for interference, it has merely prolonged the agony of the unemployed workmen and permitted the jurisdiction of the High Court under Act.
226 to be exploited by those who can well afford to wait to the deteriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues avoiding decision on issues more vital to them.
(D.P. Maheshwari vs Delhi Administration and Ors.
788 Accordingly these appeals succeed and are allowed and the decision of the High Court is.
set aside and the one of the Industrial Court is restored with costs.
As the matter is an old one, the Labour Court is directed to give top priority to this matter and dispose this of as early as possible and not later than six months from today.

dataset_name: IN-Abs

summary:
The appellants were workmen employee, of the first respondent company.
It was alleged that they assaulted another workman as a result of which he sustained bleeding injuries on his head.
A chargesheet was drawn up by the management was served on the appellants, which was followed by a composite domestic enquiry at the end of which all of them were dismissed from service.
The appellants moved five different applications before the Labour Court questioning the validity of the domestic enquiry as also the legality and propriety of the orders terminating their services.
The Labour Court finding that the domestic enquiry was held according to the relevant rules, and that there was evidence in support of the alleged misconduct, held that the management was justified in imposing the penalty of dismissal from service.
The appellants filed five Separate revision petitions before the Industrial Court under sections 66 and 67 of the Madhya Pradesh Industrial Relations Act, 1960.
The President of the Industrial Court finding that the entire approach of the Inquiry Officer Manager in arriving at the findings of mis conduct in the domestic enquiry appeared to be biased and unfair and that the conclusions neither fair nor reasonable, held that the dismissal could not be sustained.
All the revision petitions were therefore allowed, and the orders of the Labour Court dismissing the applications were set aside, and 773 the matters were remanded for a fresh decision after giving the parties due opportunity to adduce evidence in respect of the alleged misconduct.
The respondent company filed writ petitions before the High Court questioning the correctness of the order of the Industrial Court and a Division Bench held that the Industrial Court exceeded its jurisdiction by interfering with the findings of facts, and as this was an error apparent on the face of the award, quashed the decision of the Industrial Court.
Allowing the appeals to this Court, ^ HELD: 1.
(i) Times without number, it has been pointed out that article 226 is a device to secure and advance justice and not otherwise.
[787E] Sadhu Ram vs Delhi Transport Corporation, ; , referred to.
(ii) ordinarily, the Courts exercising extraordinary jurisdiction is loathe to interfere with an order remanding the matter to the authority directed to investigate facts.
[787F] D.P. Maheshwari vs Delhi Administration and Ors., , referred to.
In the instant case, the Industrial Court had made an order of remand.
The High Court was not justified in interfering with the same.
By this uncalled for interference, it has merely prolonged the agony of the unemployed workmen and permitted the jurisdiction of the High Court under article 226 to he exploited by those who can well afford to writ to the detriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues more vital to them.
[787F G] 2.
(i) Dismissal from a service is an order made under the relevant standing orders.
A relief against such an order can be obtained by making an application under section 61 to the Labour Court.
Against the order made by the Labour Court under section 61, a revision would lie under section 66 to the Industrial Court.
[779H; 780C] (ii) If and when an application under section 61 is made the Labour Court will have jurisdiction to decide the legality and propriety of the order of dismissal or removal from service.
When jurisdiction is conferred upon the Labour Court, not only to examine the legality of the order as also the propriety of the order, the Labour Court can in exercise of the jurisdiction examine the propriety or impropriety of the order.
[781C] 3.
(i) The main part of Sec. 66 clearly spells out the jurisdiction of the Industrial Court to pass any order in reference to the case brought before it as it thinks fit '.
The expression 'as it thinks fit; confers a very 774 wide jurisdiction enabling it to take an entirely different view on the same set of facts: The expression 'as it thinks fit ' has the same connotation, unless the context otherwise indicates 'as he deems fit '.
[785B C] Raja Ram Mahadev Paranjype and ors.
vs Aba Maruti Mali and ors., [1962] Suppl.
1 SCR 739; referred to.
(ii) Sub cl.
(c) of the first proviso to Section 66 (1) will permit the Industrial Court to interfere with the order made by the Labour Court, if the Labour Court has acted with material irregularity in disposal of the dispute before it.
If the finding recorded by the Labour Court is such to which no reasonable man can arrive, the Industrial Court in exercise of its revisional jurisdiction would be entitled to interfere even if patent jurisdictional error is not pointed out.
[785E F] 4.
The expression propriety is variously understood; one meaning assigned to it being 'justice '.
Amongst various shades of meaning assigned to the expression, the dictionary sets out; 'fitness, appropriateness; aptitude; suitability etc. ' as some of them.
[781D E] 5.
If the justice or the justness in relation to a legal proceeding where evidence is led is questioned and the authority is conferred with jurisdiction to examine the propriety of the order or decision that authority will have the same jurisdiction as the original authority to come to a different conclusion on the same set of facts.
If any other view is taken, the expression 'propriety ' would lose all significance.
The expression 'legality and propriety ' has been used in various statutes where appellate or revisional jurisdiction is conferred upon a superior authority.
[781E G] Raman and Raman Ltd. vs The State of Madras and Anr., ; , Moti Ram vs Suraj Bhan and Ors.
, ; , Awdesh Kumar Bhatnagar vs The Gwalior Rayon Silk Mfg.
(Weaving) Co. Ltd and Anr.
[1972] Lab.
and IC. 842; referred to.
In the instant case, the Industrial Court while hearing the revision petitions found that the petitioners were trade union workers and that three of them were office bearers of the union, and that a material place of evidence clearly pointing to the contrary was wholly overlooked by the inquiry officer.
The Industrial Court also pointed out that report (Ex D/18) purporting to have been made by the assaulted worker to the factory Manager on the day following the date of occurrence when properly scanned appeared to be highly suspicious evidence because: 'it was not dated and did not bear the endorsement of the officer to whom it was presented.
After referring to other infirmities in the approach of the Labour Court, the Industrial Court concluded that the entire approach of the Manager in arriving at the findings of misconduct in his enquiry 'appeared to be biased and unfair ', and 'the conclusions neither fair nor reasonable and any order of dismissal based thereon could not be sustained. ' The Industrial Court was, therefore perfectly justified in interfering with the order of the Labour Court.
It merely set aside the award 775 of the Labour Court and did not proceed to re appraise the evidence but remitted the case to the Labour Court for fresh decision.
It was thus an eminently just order.
The High Court however, observed that the Labour Court could only interfere with the decision of the inquiry officer if the findings arrived at were perverse.
The High Court completely missed the ambit of jurisdiction of the Labour Court in that it had the jurisdiction to decide the legality and propriety of the order.
Impropriety as converse of propriety cannot be equated with perversity.
The High Court wholly, misread the relevant provision and interfered with the decision of the Industrial Court which was preeminently just and within the four corners of its jurisdiction.
[785G; 786A G; 787A D]


judgement:
: Criminal Appeals Nos. 130 and 131 of 1954.
Appeals by special leave from the judgment and order dated September 11, 1953, of the former Madhya Bharat High Court in Appeals Nos.
42 and 43 of 1953.
Shiv Dayal and R. H. Dhebar, for the appellant.
B. C. Misra, amicus curiae, for the respondent.
April 5.
The Judgment of the Court was delivered by GOVINDA MENON J.
The State of Madhya Bharat, G which after November 1, 1956, had become merged in the present State of Madhya Pradesh, had obtained special leave from this court on April 11, 1954, to appeal against the judgment and order of acquittal passed in favour of the respondent herein, by the High Court of Judicature of Madhya Bharat on September 11, 1953, in two consolidated Criminal Appeals Nos.
42 and 43 of 1953, by the identical appellant before that court.
The question for decision in these two appeals is how far the High Court was justified in ordering the acquittal.
The respondent herein was a Tax Collector in the Municipal Committee of Lashkar, Gwalior, and was prosecuted in the court of the City Magistrate and Additional District Magistrate, Lashkar, firstly by means of a challan dated October 23, 1951, for offences under sections 468, 477 A and 409 of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act II of 1947, in that he misappropriated a sum of more than Rs. 7,000, entrusted to him in the capacity of Tax Collector, and during the course of the said transaction committed various offences.
On July 4, 1952, a second complaint was filed against him in the same court under the identical sections for having misappropriated in 1950 a sum of Rs. 3,500 in all under similar circumstances.
While these two complaints were pending in the trial court, on July 28, 1952, the Criminal 112 870 Law Amendment Act (Act No. 46 of 1952) came into force and by section 6 of that statute, the State Government was authorised to appoint a Special Judge for the trial of an offence under sub section
(2) of section 5 of the Prevention of Corruption Act 11 of 1947.
Section 7 of the same statute laid down that notwithstanding any.
thing contained in the Criminal Procedure Code, or any other law for the time being in force, an offence under section 5 (2) of the Prevention of Corruption Act could be tried only by a Special Judge, appointed under section 6 of the Criminal Law Amendment Act.
Sub cl.
(b) of section 7 laid down that when trying a case, triable exclusively by a Special Judge under this statute, he may also try any other offence with which the accused may under the Code of Criminal Procedure, be charged at the same trial.
The last section of the Criminal Law Amendment Act aforesaid provided that all cases triable by a Special Judge under section 7, which immediately :before the commencement of the Act were pending before any Magistrate, shall on such commencement be forwarded for trial to the Special Judge having jurisdiction over such cases.
In accordance with the above mentioned provisions of the statute, the cases pending before the City Magistrate and Additional District Magistrate, Lashkar, were transferred to a Special Judge constituted for the purpose before whom they were numbered as Case No. 3 of 1953 and No. 6 of 1953.
After the prosecution evidence was over, on March 10, 1953, the Special Judge framed charges under all the sections complained against.
By separate judgments dated June 5, 1953, the Special Judge found the respondent guilty of an offence under section 409 of the Indian Penal Code and sentenced him to rigorous imprisonment for three years.
He, however, passed an order of acquittal under sections 468 and 477 A, of the Indian Penal Code.
As regards the charge under section 5 (2) of Act II of 1947, the learned Special Judge was of the view that since the provisions of sub.s.
(4) of section 5 of the Prevention of Corruption Act to the effect that no police officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under sub section
(2) 871 of section 5 of the Prevention of Corruption Act without an order of a 1st Class Magistrate, had not been complied with, the foundation for preferring a complaint had not been established and, therefore, there was an illegality which affected the jurisdiction of the court to try the case, the result being that the accused could not be tried for that offence.
Such being the case, no formal order of acquittal was passed by the trial court.
Aggrieved by the convictions under section 409 of the Indian Penal Code, the respondent preferred two appeals to the High Court of Madhya Bharat which were consolidated by that court, and by a common judgment that court applying the doctrine of autrefois acquit held that when once on the same facts the trial Judge found that the respondent could not be found guilty of an offence under section 5 (2) of the Prevention of Corruption Act, it was tantamount to an acquittal for that offence in which case no conviction could be had under section 409 of the Indian Penal Code.
The respondent was, therefore, acquitted.
As mentioned already, the State has been granted special leave to appeal against the orders of acquittal.
The correctness of the conclusion of the High Court has been challenged in more ways than one by the appellant 's counsel.
Firstly, it is argued that the offence under section 5 (2) of the Prevention of Corruption Act and that under section 409 of the Indian Penal Code, are not the same, and such being the case, granting that the order of the Special Judge amounted to an acquittal under section 5 (2) of the Prevention of Corruption Act, still that would not bar the conviction of the respondent under section 409 of the Indian Penal Code.
Secondly, it is pointed out that when at the same trial there are two alternative charges like those with which we are now concerned, acquittal of the accused under one charge is no impediment to his conviction on the other; and lastly it is contended that any defect in the investigation would not amount to an illegality which would invalidate the trial and conviction if the proceedings culminate that way.
872 This court has recently held in Om Prakash Gupta vs The State of U. P.(1), that the offence of criminal misconduct punishable under section 5 (2) of the Prevention of Corruption Act II of 1947 is not identical in essence, import and content with an offence under section 409 of the Indian Penal Code.
The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate section 409 of the Indian Penal Code.
In the common judgment in those appeals the conclusion has been expressed in the following words: "Our conclusion, therefore, is that the offence created under section 5(1)(c) of the Prevention of Corruption Act is distinct and separate from the one under section 405 I.P.C. and, therefore, there can be no question of s.5(1)(c) repealing section 405 I.P.C." In view of the above pronouncement, the view taken by the learned Judge of the High Court that the two offences are one and the same, is wrong, and if that is so, there can be no objection to a trial and conviction under a. 409 of the Indian Penal Code, even if the respondent has been acquitted of an offence under section 5(2) of the Prevention of Corruption Act II of 1947.
Section 403(1) of the Criminal Procedure Code only prohibits a subsequent trial for the same offence, or on the same facts for any other offence for which a different charge from the one made against an accused person might have been made under section 236 of the Criminal Procedure Code, or for which he might have been convicted under section 237 when the earlier conviction or acquittal for such an offence remains in force.
It is obvious that section 403(1) has no application to the facts of the present case, where there was only one trial for several offences, of some of which the accused person was acquitted while being convicted of one.
On this ground alone the order of the High Court is liable to be set aside.
The High Court also relied on article 20 of the Constitution for the order of acquittal but that Article cannot apply because the respondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the (1) [1957] S.C.R.423.
873 well known maxim " Nemo debet bis vexari, si constat curice quod sit pro una et eadem causa" (No man shall be twice punished, if it appears to the court that it is for one and the same cause) " embodied in article 20 cannot apply.
The next argument on behalf of the appellant is that where there are two alternate charges in the same trial, the fact that the accused is acquitted of one of them, will not prevent the conviction on the other, is also well founded.
Section 26 of the General Clauses Act can be called in aid in support of this proposition.
There is no question of double jeopardy.
Section 26 runs as follows: "Provisions as to offences punishable under two or more enactments: Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same.
" We are, therefore, of the opinion that the learned Judge 's view on this aspect of the case is also unsound.
In view of what has been stated above, it is unnecessary to deal with the last contention of the learned counsel for the appellant except merely to state that the Special Judge had jurisdiction to try the accused person under section 7 of the Prevention of Corruption Act, 1947.
The result is that the appeals succeed, the order of the High Court acquitting the respondent of an offence under section 409 of the Indian Penal Code is set aside and the appeals are remanded to the High Court of Madhya Pradesh for re hearing on the merits.

summary:
The accused was tried by a Special Judge for offences under section 409 Of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act.
He was convicted under section 409 but the judge held that the accused could not be tried under section 5(2) as there had been no investigation by a police officer not below the rank of a Deputy Superintendent of Police.
Upon appeal by the accused against the conviction under section 409, the High Court applying the doctrine of autrefois acquit held that the order of the judge in respect of the charge under section 5(2) was tantamount to an acquittal for that offence and on the same facts no conviction could be had under section 409 : Held, that the offences under section 409 of the Indian Penal Code and under section 5(2) of the Prevention of Corruption Act were distinct and separate and there could be no objection to a trial and conviction under section 469 even if the accused had been acquitted under section 5(2).
Om Prakash Gupta vs The State Of U.P., ; , applied.
Section 403(1) of the Code of Criminal Procedure has no application where there is only one trial for several offences, of some of which the accused person is acquitted though convicted of one.
Article 20 of the Constitution also does not apply where the accused had not already been, tried: and acquitted for the same offence in an earlier trial, 869 Where there are two alternate charges in the same trial, the fact that the accused is acquitted of one of them will not prevent the conviction on the other.


judgement:
Review Petition No. 249 of 1984.
In Special Leave Petition (C) No. 13618 of 1983 CHAMBER MATTER By Circulation The order of the Court was delivered by CHINNAPPA REDDY, J.
This application for Review is nothing 206 short of an abuse of the process of the Court and waste of the time of this Court, time which has now become so dear and precious because of the daily mounting arrears.
No ground for seeking a review is mentioned or even hinted at in the petition.
In the first paragraph of the petition it is stated "This is an application for Review of the order dated 9.12.83, whereby this Hon 'ble Court was pleased to dismiss the above Special Leave to Appeal (Civil).
The said order discloses an error apparent on the face of the record as will be clear from perusal of the various grounds and facts mentioned in the petition for Special Leave to Appeal.
It is submitted that since the order is unsustainable in view of the facts and circumstances of the case, this Hon 'ble Court may be pleased to review the order".
In the second paragraph we are told that no detailed grounds have been taken (though in point of fact not a single ground is even mentioned) as limitation is about to expire and "If so advised, further set of grounds would be submitted for the consideration of the Hon 'ble Court" The petition was filed on 9.1.1984 and nothing has been done though more than six months have passed since then.
The offer to file detailed grounds remains an unredeemed promise.
Possibly he was advised to file no further grounds as there was none to be submitted.
Good words were not to be thrown away after bad.
To that extent, we may consider ourselves spared.
We must however express our deep dissatisfaction and anguish with the indiscriminate manner in which petitions for special leave and petitions for review are being filed.
The present application is entirely frivolous and is accordingly dismissed.
section R. Petition dismissed.

summary:
An application for review against the order of dismissal of the Special Leave Petition dated 9.12.83 was filled without disclosing any ground for review.
It was averred that the petition was being filed so as to be within the limitation prescribed under Order XL of the Supreme Court Rules and that further grounds would be filed if advised.
However, nothing was done though more than six months had elapsed by the date of hearing.
Dismissing the petition, expressing its deep dissatisfaction and anguish with the indiscriminate manner in which petitions for Special Leave and petitions for Review were being filed in the Supreme Court, [206A] ^ HELD: The application for review was nothing short of an abuse of the process of the court, a waste of the time of the Court and was entirely frivolous.