judgement:
Appeal No. 498 of 1966.
Appeal by special leave from the order dated July 10, 1964 of the Industrial Tribunal Delhi in O.P. No. 79 of 1962.
Bishan Narain, P.C. Bhartari, J.B. Dadachanji and C.L. Chopra, for the appellant.
H.R. Gokhale, Janardan Sharma and T.R. Bhasin, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
The Central Bank of India Ltd., New Delhi has flied this appeal, by special leave, challenging an order of the Industrial Tribunal, Delhi, refusing to accord approval to an order of dismissal of the respondent, Prakash Chand Jain, under section 33(2)(b) of the (hereinafter referred to as "the Act").
A charge sheet, containing two charges was served on the respondent on 21st July, 1961 in order to initiate formally an enquiry for the purpose of taking disciplinary ,action against him.
The two charges flamed were as follows : "1.
On 14 1 1960, a sum of Rs. 30,400/ was paid to Mr. P.C. Jain by the Assistant Cashier Mr. Nand Kishore out of the cheque No. 43004 dated 14 1 60 drawn by Messrs Mool Chand Hari Kishan for Rs. 63,000/ .
Taking this money Mr. P.C. Jain on the same day i.e. 14 1 1960 left for Muzaffarnagar in company of some persons to retire the following bills drawn by M/s. Gupta Iron Industries :Naya Bazar LBC 3 drawn on Puran Chand .
Rs. 5,100/ Naya Bazar LBC 5 drawn on Hiralal Shyam.
Rs. 4,950/ Thus it was within the knowledge of Shri P.C. Jain that the bills of Messrs Gupta Iron Industries were drawn on bogus firms and that those were retired by drawer 's representative who accompanies Mr. P.C. Jain to Muzaffarnagar.
Instead of reporting, such serious matters to higher authorities, Mr. P.C. Jain claims that he had never visited Muzaffarnagar.
Mr. P.C. Jain encashed on 25 2:60 cheque No. 400506 for Rs. 46,000/ from the United Bank of India Ltd., Chandni Chowk and brought cash to Naya Bazar after 11.30 a.m.i.e.
after the time for presenting of the clearing cheques at the State Bank of India.
To cover the misdeeds of Mr. Shiv Kumar Sharma the then 737 Sub Agent of Naya Bazar Office, Mr. P.C. Jain Treasurer 's representative stated in his explanation dated 16 2 1961 that cash was received at the office at about 11 a.m.i.e.
before the clearing time.
The above acts of Mr. Jain were prejudicial to the interests of the Bank as defined in ' paragraph 521 4(J) of the Sastry Award and amount to gross misconduct.
The inquiry will be held on 12 8 1961 at Chandni Chowk Branch at 10.30 a.m. by Mr. P.B. Tipnis, Chief Agent, Agra." Subsequently, an enquiry was held by Mr. Tipnis, one of the senior Officers of the Bank.
The Enquiry Officer, after recording evidence tendered on behalf of the Bank as well as the evidence given by the respondent, recorded his findings holding that both the charges were proved against the respondent and, basis, came to the view that the actions of the respondent were prejudicial to the interests of the Bank and amounted to gross misconduct, so that he proposed to award the punishment of dismissal from the Bank 's service.
The respondent was given a week 's time to show cause against this proposed punishment and, thereafter, an order was made dismissing the respondent with effect from 18th July, 1962 and a month 's wages were paid to him in accordance with the provision contained in section 33(2)(b) of the Act.
Since an industrial dispute was pending before the Industrial Tribunal, Delhi, an application under section 33(2)(b) of the Act was made requesting the Tribunal to accord approval to this order of dismissal.
The Tribunal, when dealing with this application, held that the enquiry, which had been held by the Enquiry Officer, was fair and was not vitiated by any irregularity or unfairness, but refused to accord approval on the ground that the findings accorded by the Enquiry Officer were perverse and were not based on evidence inasmuch as most of the findings were the result of mere conjecture on behalf of the Enquiry Officer.
It is this order of the Tribunal that has been challenged in this appeal.
Learned counsel appearing for the appellant Bank urged that the Tribunal, in refusing to accord approval and in disregarding the findings recorded by 'the Enquiry Officer, exceeded its jurisdiction conferred by section 3 '3(2) (b) of the Act.
It was further ' urged that, when the Tribunal found that.
the enquiry was fair, the Tribunal had no jurisdiction to go into the question whether the findings of fact recorded by the Enquiry Officer were correct and could not sit in judgment over those findings like a Court of Appeal.
The Tribunal should have accepted those findings and only examined whether a prima facie case was made out for ' according an approval.
If the Tribunal had proceeded in accord 738 ance with this principle, there.
would have been no justification for the Tribunal to refuse to approve the order of dismissal.
The jurisdiction and functions of a Tribunal under section 33(2) (b) of the Act were 'explained by I this Court in Bangalore Woolien, Cotton and Silk Mills Company Ltd. vs Dasappa (B) (Binny Mills Labour Union) and Others(1), where it was held : "The settled position in law therefore is that permission should be refused if the tribunal is satisfied that the management 's action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis of which the management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion.
In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman 's misconduct that the management has not acted bona fide.
A finding that the management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the management has reached.
In every case, therefore, it.
would be proper for the tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion.
" The point was again considered by this Court in the case of Lord Krishna Textile Mills vs Its Workmen(2) and it was held : "In view of the limited nature and extent of the enquiry permissible under section 33 (2)(b) all that the authority can do in dealing with an employer 's application is to consider whether a prima facie case for according approval is made out by him or not.
If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by section 33(2)(b) and the proviso are satisfied or not.
Do the standing orders justify the order of dismissal ? Has an enquiry been held as required by the standing order ? Have the wages for the month been paid as required by the proviso '?; and, has an application been made as prescribed by the proviso ?" (1) [1960] II L.L.J. 39.
(2) ; 739 The Court then proceeded to consider whether the Tribunal in that case had acted rightly, and noted that one had merely to read the order to be satisfied that the Tribunal had exceeded its jurisdiction in attempting to enquire if the conclusions of fact recorded in the enquiry were justified on the merits.
The Tribunal did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner.
The Court then indicated that the Tribunal had proceeded to examine the evidence, referred to some discrepancies in the statements made by witnesses and had come to the conclusion that the domestic enquiry should not have recorded the conclusion that the charges had been proved against the workmen in question.
It was then held that, in making these comments against the findings of the enquiry, the Tribunal clearly lost sight of the limitations statutorily placed upon its power and authority in holding the enquiry under section 33(2)(b).
The Court then indicated the principle applicable by saying: "It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which 'is.
entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under section 33(2)(b).
It is conceivable that even in holding an enquiry under section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence.
" These decisions make it clear that, when an Industrial Tribunal is asked to give its approval to an order of dismissal under section 33(2) (b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse.
The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all.
This principle was further affirmed in a different context in State of Andhra Pradesh V.S. Sree Rama Rao, (1), where this Court had to consider whether a High Court, in a proceeding for a writ under article 226 of the Constitution, could interfere with the findings recorded by departmental authority ill disciplinary proceedings taken against a Government servant, The Court held : (1) ; 740 "But the departmental authorities are, if the enquuiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art, 226 of the Constitution." In this connection, reference was also made to some cases where this Court has held that a finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before the tribunal.
Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with,and these two are cases in.
which the findings are not based on legal evidence! or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal.
In each of these cases, the findings are treated as perverse.
It is in the light of these principles that we have to see whether the Industrial Tribunal, Delhi, in the present case, was justified in refusing to accord approval to the order of dismissal which was passed on the basis of the evidence recorded 'by the Enquiry Officer, Mr. Tipnis.
We have already reproduced above the charges that were framed against the respondent and we proceed to examine how far the Tribunal was correct in holding that the Enquiry Officer 's findings on these charges were without legal evidence and were based merely on conjecture.
The first charge consisted of the following elements : (i) that on 14 1 1960, a sum of 30,400 was paid to the respondent by the Assistant Cashier Nand Kishore out of the amount payable on a cheque drawn by M/s. Mool Chand Hari Kishan for Rs. 63.000; ' (ii) that the respondent left the same day for Muzaffarnagar; (iii) that he left for Muzaffarnagar in company of some persons to retire the bills drawn by M/s. Gupta Iron Industries; (iv) that these bills of M/s. Gupta Iron Industries had been drawn on bogus firms; (v) that these bills were retired by the drawer 's representative who accompanied the respondent to Muzaffarnagar; 741 (vi) that the respondent failed to report these serious matters to higher authorities; and (vii) that the respondent, instead, wrongly claimed that he had never visited Muzaffarnagar.
The Tribunal in its Order has held that on all these elements the findings recorded by the Enquiry Officer were perverse, because they were based on hearsay evidence and on conjecture.
Learned counsel appearing for the Bank took us through the entire evidence recorded by the Enquiry Officer in order to canvass his argument that these findings recorded by the Enquiry Officer were based on the material before him.
We have found that, on two of these points, there was material before the Enquiry Officer which could be held to be legal evidence and, consequently, we have to hold that, on those two points, the Tribunal was incorrect in recording its view that the findings of the Enquiry Officer were defective and could be disregarded by the Tribunal.
These two are elements Nos.
(ii) and (vii).
The finding that the respondent left for Muzaffarnagar on 14 1 1960 was based on the inferences drawn by the Enquiry Officer from the records of the Branch of the Bank in which the respondent was working on that day.
The facts found by the Enquiry Officer were that, in the cash receipt book of that date, there were only four entries in the handwriting of the respondent that he made no payments on that day; that, though he was in charge of the entire cash department, he had no knowledge that cash of Rs. 1 sac was brought from the Chandni Chowk Office of the Bank three times during that day; that the Godown Keeper had also verified several vernacular signatures when it was the respondent 's duty only to verify them; and that the cash account of that day was closed by the Godown Keeper instead of the respondent who should have done so if he was in the Bank until the closure of the work on that day.
These circumstances were brought to the notice of the Enquiry Officer from the records of the Bank by Management 's witness, J.J. Daver.
In our opinion, the Tribunal was incorrect in holding that the Enquiry Officer was acting on mere conjecture when, on the basis of these circumstances, he drew the inference that the respondent had left his work in the Naya Bazar Branch of the Bank on 14 1 1960 after working there for a short time only.
Further, the Enquiry Officer in his report mentioned that three witnesses, S: C.L. Chawla, Officer Incharge of the Muzaffarnagar Office of the Bank, Inder 'Sain Jain, Cashier in the Muzaffarnagar Office, and Nihalchand Jain, who was a Clerk in the Muzaffarnagar Office, had stated that they had seen the respondent at Muzaffarnagar Office on 14 1 1960, and relied on their evidence to hold that the respondent did go to Muzaffarnagar on that day leaving his work in the Naya Bazar Office of the Bank at Delhi.
The Tribunal criticised the evidence of these three witnesses and 742 came to the view that the Enquiry Officer was not justified in believing these witnesses and in holding on the basis of their evidence that the respondent was in Muzaffarnagar on that day.
It is clear that, in adopting this course, the Tribunal exceeded its powers.
It was not for the Tribunal to sit in judgment over the view taken by the Enquiry Officer about the value to be attached to the evidence of these witnesses, even though the Tribunal thought that these witnesses were unreliable because of circumstances found by the Tribunal in their evidence.
What the Tribunal at this stage did was to interfere with the finding of fact recorded by the Enquiry Officer by making a fresh assessment on the value to be attached to the evidence of these witnesses which was not the function of the Tribunal when dealing with an application under section 33 (2 )(b) of the Act.
In these two respects.
we find that the Tribunal fell into an error.
However, we find that, on the other ingredients of the first charge, the Tribunal was justified in arriving at the conclusion that the findings recorded by the Enquiry Officer Were perverse.
The Tribunal gave the reason that these findings were based on hearsay evidence.
This view taken by the Tribunal appears to be fully justified.
The first and the third elements of the charge relating to payment of the sum of Rs. 30.400 to the respondent by Nand Kishore, and of the respondent leaving for Muzaffarnagar in the company of some persons in order to retire the bills drawn by M/s. Gupta Iron Industries, were sought to be proved before the Enquiry Officer by the evidence of the Internal Auditor, N. N. Vazifdar, but the latter could not give any direct evidence.
as he was not present at the time when money was paid to the resplendent or when the respondent left for Muzaffarnagar.
He purported to prove these elements of the charge by deposing that a statement was made to him by Nand Kishore to the effect that Nand Kishore had paid Rs. 30,400 to the respondent and that, thereafter, the respondent left for Muzaffarnagar in the company of two persons.
The Enquiry Officer accepted this evidence of Vazifdar, but, ignored the.
fact that Vazifdar 's evidence was not direct evidence in respect of the elements of the charge sought to be proved, and that Vazifdar was only trying to prove a previous statement of Nand Kishore which, as rightly held by the Tribunal, would amount to hearsay evidence.
Nand Kishore himself was also examined as a witness, but, in his evidence, which was admissible as substantive evidence, he made no statement that this sum of Rs. 30,400 was paid by him to the respondent or that the respondent left for Muzaffarnagar in the ' company of some persons to retire the bills drawn by M/s. Gupta Iron Industries.
In fact.
Nand Kishore even went further and denied that he had made any statement to Vazifdar as stated by Vazifdar.
The Enquiry Officer was, of course, entitled to form his own opinion and 743 to believe Vazifdar in preference to Nand Kishore; but, on this basis, the only finding that the domestic tribunal could record was that Nand Kishore 's statement given before him was incorrect and that Nand Kishore had made statements to Vazifdar as deposed by Vazifdar.
Those statements made by Nand Kishore to Vazifdar could not, however, become substantive evidence to prove the correctness of these elements forming part of the charge.
It is in this connection that importance attaches to the views expressed by this Court in the cases cited above, where it was pointed out that a finding of a domestic tribunal may be perverse if it is not supported by any legal evidence.
It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals.
The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
In fact, learned counsel for the appellant Bank was unable to point out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its findings on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings.
In the case of Khardah Co. Ltd. vs Their Workmen(1), this aspect was noted by this Court as follows : "Normally, evidence on which the charges are sought to be proved must be led at such an enquiry in the presence of the workman himself.
It is true that in the case of departmental enquiries held against public servants, this Court has observed in the State of Mysore vs
S.S. Makapur(2) that if the deposition of a witness has been recorded by the ' enquiry officer in the absence of the public servant and a copy thereof is given to him, and an opportunity is given to him to cross examine the witness after he affirms in a general way the truth of his statement already recorded, that would conforms the requirements of natural justice; but as has been emphasised by this Court in M/s. Kesoram Cotton Mills Ltd. vs Gangadhar(3) these observations must be applied (1) ; at pp.
512 13.
(2) ; (3) ; 744 with caution to enquiries held by domestic tribunals against the industrial employees.
In such enquiries, it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workman should be examined in his presence.
Recording evidence in the presence of the workman concerned serves a very important purpose.
The witness knows that he giving evidence against a particular individual who is present before him, and therefore, he is cautious in making his statement.
Besides, when evidence is recorded in the presence of the accused person, there is no room for persuading the witness to make convenient statements, and it is always easier for an accused person to cross examine the witness if his evidence is recorded in his presence.
Therefore, we would discourage the idea of recording statements of witnesses ex parte and then producing the witnesses before the employee concerned for cross examination after serving him with such previously recorded statements, even though the witnesses concerned make a general statement on the latter occasion that their statements already recorded correctly represent what they stated.
" In the case of M/s. Kesoram Cotton Mills Ltd. vs Gangadhar and Others(1) referred to in the quotation above, it was held : "Even so, the purpose of rules of natural justice is to safeguard the position of the person ' against whom an inquiry is being conducted so that he is able to meet the charge laid against him properly.
Therefore, the nature of the inquiry and the status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice.
Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer, it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient see New Prakash Transport Co. vs New Suwarna Transport Co. (2)] but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker.
Further, we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not (1) ; (2) 745 be present to defend them.
In such a case, to read over a prepared statement in a few minutes and then ask the workmen to cross examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves.
It seems to us, therefore, that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the.
witnesses from the beginning to the end in the presence of the workman at the enquiry itself.
Oral examination always takes much longer than a mere reading of a prepared statement of the same length and bring home the evidence more clearly to the person against whom the inquiry is being held.
Generally speaking, therefore, we should expect a domestic inquiry by the management to be of tiffs kind.
" Proceeding further, the Court held : "The minimum that we shall expect where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged, is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the.
copy of the statements should be given well in advance, we mean that it should be given at least two days before the inquiry is to begin.
If this is not done and yet the witnesses are not examined in chief fully at the inquiry, we do not think that it can be said that principles of natural justice which provide that the person charged should have an adequate opportunity of defending himself are complied with in the case of a domestic inquiry in an industrial matter." These views expressed by this Court, in our opinion, bring out what was meant when this Court held that findings recorded by an Enquiry Officer must be supported by legal evidence.
The evidence, as indicated in these cases, should consist of statements made in the presence of the workman charged.
An exception was envisaged where the previous statement could be used after giving copies of that statement well in advance to the workman charged, but with the further qualification that previous statement must be affirmed as truthful in a general way when.
the witness is actually examined in the.presence of the workman.
Applying this principle to the present case, it is clear that the previous statement made by Nand Kishore to Vazifdar could not be taken as substantive evidence against the respondent, because 746 Nand Kishore did not affirm the truth of that statement when he appeared as a witness and, on the other hand, denied having made that statement altogether.
Even though his denial may be false, that fact would not convert his previous statement/into substantive evidence to prove the charge against the respondent when that statement was given to Vazifdar in the absence of the respondent and its truth is not affirmed 'by him at the time of his examination by the Enquiry Officer.
This statement of Nand Kishore made to Vazifdar being ignored, it is clear that no other material was available to the Enquiry Officer on the basis of which he could have held that the sum of Rs. 30,400 was paid to the respondent by Nand Kishore and that Nand Kishore, there.after left for Muzaffarnagar in the company of some persons with that money.
The fourth element of the charge was that the bills of M/s. Gupta Iron Industries were drawn on bogus firms.
We think that the Tribunal is quite correct in its comment that the Enquiry Officer, in holding that the bills were drawn on bogus firms, proceeded to do so without any evidence altogether.
In fact, the Enquiry Officer has not referred to any material which was available to him before accepting the allegation against the respondent that the bills had been drawn.
on bogus firms.
Even in the course of his submissions before us, learned counsel for the Bank was unable to point out any evidence which would support this part of the charge.
The only evidence to which learned counsel could refer was the statement of Nihal Chand Jain who said that intimations of the bills were sent to the parties: mentioned in the bills by post, but were received back unserved.
Those intimations were not produced before the Enquiry Officer and there is no mention of the reason why the postal authorities returned those intimations.
The mere return of the intimations could not possibly lead to the inference that the parties, to whom they were addressed, were bogus.
It is quite likely that their addresses there incomplete, so that the postal authorities were unable to trace them.
Clearly, in these circumstances, the finding on this point recorded by the Enquiry Officer was without any evidence or material.
The same remarks apply with regard to the element of the charge to the effect that the bills were retired by the drawer 's representative who accompanied the respondent to Muzaffarnagar.
: 'The Enquiry Officer again does not mention any witness who may have stated that the bills were retired by the drawer 's representative or that representative had accompanied the respondent.
The only evidence on this point, to which our attention was ,drawn, was that of T.C. Jain who purported to prove a previous :statement of Inder Sain Jain made to him.
According to T.C. 747 Jain, Inder Sain Jain had come to him and told him that Prakash Chand Jain had come with the representative of the drawer to retire the bills, This evidence of T.C. Jain was rightly not relied upon or referred to by the Enquiry Officer, because Inder Sain Jain, when he appeared as a witness before him, did not state, that he had made any such statements to T.C. Jain and, in his examination, he excluded the possibility of his having made that statement.
According to Inder Sain Jain 's statement before the.
Enquiry Officer, the respondent only accosted him once and bid him "Jai Ram Ji Ki".
He had no other talk with him.
He also.
stated that this happened about two hours after the bills had been retired.
Consequently, according to Inder Sain Jain 's statement before the Enquiry Officer, the respondent was not present when the bills were retired and there was no question of the respondent.
accompanying the drawer 's representative for retiring the bills.
Inder Sain Jain also did not state that the bills were retired by the representative of the drawer.
Thus, on this point also, there is no legal evidence on which a. finding could have been recorded against the resrpondent.
So far as the sixth element of the charge is concerned, that becomes totally immaterial when it is found that the Enquiry Officer 's findings that the bills were drawn on bogus firms and that they were retired by the drawer 's representative accompanying the respondent are held to have been given without any legal evidence.
If the bills are not proved to have been drawn on bogus firms and to have been retired by the drawer 's representative with the aid of the respondent, there was nothing that the respondent was required to convey to higher authorities.
So far as the second charge is concerned, we find that, similarly, the principal findings given by the Enquiry Officer are not supported by any legal evidence.
The substance of the charge was that the respondent encashed the cheque for Rs. 46,000 ' from the United Bank of India Ltd. and brought the cash after 11.30 a.m., but wrongly stated that he had brought the cash to the Naya Bazar Office of the Central Bank before 11 a.m.
The significance of the time we emphasised by the Enquiry Officer because, according to him, 11 a.m. was the clearing time of another cheque of Rs. 15,000 which had been marked as "good for payment" by the then Sub Agent, Shiv.
Kumar Sharma and the respondent had to show that cash in respect of the other cheque of Rs. 46,000 had been brought to the Bank at Naya Bazar for deposit in the account of the Drawer of that cheque of Rs. 15,000 so as to justify the endorsement made by the Sub Agent that it was 'good for payment '.
We examined the whole record and we are unable to find any evidence at all in support of the fact accepted by the Enquiry Officer that the clearing time was 11 a.m.
On the contrary, the only evi 748 dence on this point, which was that of Management 's witness J.J. Daver, was to the effect that the clearing time was 11.30 a '.m.
Ignoring tiffs evidence altogether, the Enquiry Officer proceeded to record his findings against the respondent on the basis that the clearing time was 11 a.m. without at all referring to any evidence in support of this fact.
The second significant point was as to the time by which the respondent brought the cash in respect of the cheque of Rs. 46,000/ from the United Bank of India Ltd., Chandni Chowk, to his own Central Bank Branch in Naya Bazar.
No one gave any ' direct evidence as to the time when the respondent brought the money.
The Enquiry Officer has proceeded to hold that the money could not have been brought before 11 a.m. because there is an endorsement on that cheque of Rs. 46 '000/which, according to the Enquiry Officer, shows that cheque was presented for encashment at the United Bank of India Ltd., Chandni Chowk, at 11.15 a.m.
This endorsement was also examined by us as it appeared on the photo stat copy of the cheque.
The endorsement consists of a number 37 beneath which as noted the time 11.15 a.m. with a line drawn between them.
From this endorsement alone, the Enquiry Officer proceeded to infer that this cheque was presented for encashment at 11.15 a.m., even though no evidence at all was given by anyone working in the United Bank of India Ltd., Chandni Chowk, to prove that this endorsement of time of 11.15 a.m. represented the time of presentation of the cheque at that Bank.
In fact the Enquiry Officer has not made reference to any evidence at all when holding that this cheque was presented for payment at 11 a.m. at the counter of the United Bank of India.
Learned counsel for the Bank, however, referred us to the evidence of J.J. Daver on this point.
Darer in this case was discharging a dual function as a witness and as the prosecutor of the case against the respondent for the Bank.
In his evidence, Darer stated that this endorsement represented the time when the token was issued to the person encasing the cheque.
Later, while prosecuting the case against the respondent on behalf of the Bank, Darer urged before the Enquiry Officer that this endorsement of 11.15 a.m. represented the time of presentation of the cheque and this was noted by the Enquiry Officer in his proceedings.
Obviously, the time of presentation of the cheque and the time of issue of 'the token in respect of it would not be identical.
In fact, there can be a lapse of an appreciable interval between the two.
In spite of this fact, the Enquiry Officer seems to have proceeded on the basis 'of what was urged before him by J.J. Darer while acting as prosecutor, and what was stated in that capacity was not evidence at all.
The evidence given by Darer was different and that was not relied upon by the Enquiry Officer.
On the face of it, the proper evidence, by which it could have been proved that the cheque was either presented at 11.15 a.m. or that the token in respect of it 749 was issued at 11.15 a.m., could have been obtained if the Bank had cared to examine the person in charge of encashing the cheque at the United Bank of India, Chandni Chowk.
Daver was not present when the cheque was presented and he has not explained on what basis he stated in his evidence that this endorsement represented the time when the token was issued.
It is clear that, era this charge also on the two crucial points of the time, viz., the clearing time of the cheque of Rs. 15,000/ as well as the time when the second cheque of Rs. 46,000/ was presented for encashment at the United Bank of India Ltd., Chandni Chowk, the Enquiry Officer has recorded findings without those findings being supported by any legal evidence.
In these circumstances, it is clear that the Tribunal was fully justified in holding that the findings recorded by the Enquiry Officer on both the charges were perverse in the sense of not being supported by any legal evidence, of course, with the exception of the finding recorded to the effect that on 14 1 1960 the respondent, after doing some work in the Naya Bazar Branch of the Bank, left for Muzaffarrnagar and was seen in Muzaffarnagar on that day.
It was to this liraired extent that the first charge only could have been held to have been proved before the Enquiry Officer against the respondent.
On this limited proof and on holding that the Enquiry Officer 's findings were correct in respect of this part of the charge only, the Tribunal would be fully justified in withholding its approval of the order of dismissal which was passed by the Bank on the basis that all the elements of both the charges had been proved.
The order of the Tribunal refusing to grant approval was, therefore, not vitiated by any error and must be upheld.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The respondent was an employee of the appellant.
After a domestic inquiry in respect of alleged misconduct he was dismissed.
As an industrial dispute was pending an application was made to the Industrial Tribunal under section 33(2)(b) of the .
The tribunal held that though the enquiry was fair, the findings of the enquiry Officer were perverse and therefore it did not give its approval the order of dismissal.
By special leave the appellant came to this Court, contending that since the enquiry was held to be fair the Tribunal no jurisdiction to interfere with the findings of fact arrived at by the Enquiry Officer.
HELD: (i) Earlier decisions of 'this Court make it clear that when in Industrial Tribunal is asked to give its approval to an order of dismissal under section 33(2)(b) of the Act, it can disregard the findings given y the Enquiry Officer only if the findings are perverse.
The findings are reverse when either they are not based on legal evidence or they are such as no reasonable person could have arrived at on the basis of material before the domestic tribunal.
[739 G 740 C] Bangalore Woolien, Cotton and Silk Mills Company Ltd. vs Dasappa B) (Binny Mills Labour Union) & Ors.
[1960] II L.L.J. 39, Lard Krishna Textile Mills vs Its Workmen, ; , State lndhra Pradesh vs
section Sree Rama Rao; , , applied.
(ii) A domestic tribunal though not bound by the technical rules rout evidence contained in the Indian Evidence Act cannot ignore subsintive rules which would form part of principles of natural justice.
The principle that a fact sought to be proved must be supported by statements lade in the presence of the person against whom the enquiry is held nd that statements made behind the back of the person charged are not be treated as substantive evidence, is one of such basic principles which.
domestic tribunal cannot disregard.
The previous statement of a witness not substantive evidence unless affirmed as truthful by the witness when actually examined in the presence of the workman charged.
A finding by the domestic tribunal based not on substantive evidence but on hearsay, is perverse, because hearsay is not legal evidence.
[743 C E; 745 Khardah Co. Ltd. vs Their Workmen, ; , State of ysore V.S.S. Makapur; , and M/s. Kesoram Cotton ills Ltd. vs Gangadhar, ; , relied on.
(iii) In the present case the findings of the Enquiry Officer were held by the Industrial Tribunal to be perverse as they were not sed on legal evidence and were not justified by the material before m. [749 C E] 736


judgement:
Appeal No. 640 of 1966.
Appeal by special leave from. ' the judgment and order dated September 2, 1965 of the Madhya Pradesh High Court in Misc.
Petition No. 92 of 1964.
N.D. Karkhanis, and A.G. Ratnaparkhi, for the appellant.
D. Narsaraju and R.N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The Income tax Officer, Sagar, assessed the appellant to pay under section 23(3) of the Income tax Act, 1922, tax on his income computed for the assessment years 1945 46 and 1946 47.
On June 24, 1959, the/Income tax Officer issued a notice of reassessment under section 34 of the/ncome tax Act, 1922, reciting that the income of the appellant had escaped assessment and requiring the appellant to submit a return of his total world income assessable for the year ending March 31, 1946.
On August 17, 1959, the appellant filed a return for the assessment of his income for the year 1946 47.
The appellant was informed by the Income tax Officer that he was called upon to submit a return of his income for the assessment year 1945 46 and not for the assessment year 1946 47.
The appellant on March 22; 1960, filed a fresh return for the assessment year 1945 46 admitting that he had "misunderstood the notice" served upon him.
In his return he admitted that he had a third share in a firm styled "Sheoprasad Shobharam".
On March 14, 1963, the Income tax Officer issued another notice under section 148 of the Income tax Act, 1961, calling upon the appellant to submit a return of his income for the assessment year 1946 47 on the ground that income of the appellant had escaped assessment.
The appellant then moved the High Court of Madhya Pradesh for an order quashing the notices dated June 24.
1959 and March 14, 1963, and for a writ of mandamus or prohibition restraining the Income tax Officer from continuing the proceedings of assessment under the two notices.
The High Court rejected the writ petition.
Against the order of the High Court, the appellant has appealed to this Court with special leave.
The appellant contended that by the notice dated June 24, 1959, he was called upon to file a return for the assessment year 1946 47 and initiation of proceedings on that notice for reassessment of income for the assessment year 1945 46 was incompetent.
706 In the preamble of the notice it is recited: "Whereas I have reason to believe that your income assessable to mcome tax for the assessment year 1946 47, 1945 46 has (a) escaped assessment . , I therefore propose to assess the said income", but in the body of the notice it is clearly recited that the appellant was called upon to deliver a return of his total world income assessable for the year ending March 31, 1946.
A demand for return of income assessable for the year ending March 31, 1946 could obviously be for the assessment year 1945 46 and not for 194647.
By his letter dated March 22, 1960, the appellant admitted that he was called upon to file a return for the assessment year 1945 46 and he had "misunderstood" the notice and had filed a return for the assessment year 1946 47.
There was apparently some negligence in drawing up the preamble to the notice, but that does not affect the validity of the notice, for the appellant was clearly informed that he had to file a return for the year ending March 31, 1946.
The appellant then contended that in any event on August 17, 1959, the appellant had submitted a return for the assessment year 1946 47 and even if no notice for assessment year 1946 47 calling upon him to submit a return for that year was issued, a notice under section 34 of the Income tax Act, 1922, or under section 148 of the Income tax Act, 1961, was incomp.etent so long as the ,return submitted by the appellant in August 1959 for the assessment year 1946 47 was not considered and disposed of.
Reliance in support of this contention was placed upon two decisions of this Court: Commissioner of Income tax vs Ranchhoddas Karsondas(1) and Commissioner of Income tax vs section Raman Chettiar(2).
Under section 22( 1 ) of the Income tax Act, 1922, the Income tax Officer was required before the 1st day of May in each year to give notice, by publication in the press and by publication in the prescribed manner.
calling upon every person whose total income during the previous year exceeded the maximum amount not chargeable to income tax to furnish, within such period not being less than sixty days as may be specified in the notice, a return in the prescribed form.
Sub section (2) authorised the Income tax Officer to serve a notice upon any person whose total income was in the opinion of the Income tax Officer of such an amount as to render such person liable to income tax, requiring him to furnish within such period, not being less than thirty days, as may be specified in the notice, a return of his total income during the previous year.
Sub section ( 3 ) provided: "If any person has not furnished a return within the time allowed by or under sub section (1 ) or sub section (1) (2) 55 I.T.R. 630.
707 (2 ) or having furnished a return under either of those sub sections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made.
" Section 34 of the Act authorised the Income tax Officer to serve a notice on the assessee for assessment or reassessment if (a) the Income tax Officer had reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income tax have escaped assessment for that year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or if (b) in cases not mentioned in cl.
(a) the Income tax Officer had in consequence of information in his possession reason to believe that income, profits or gains chargeable to income tax had escaped assessment for any year, or had been under assessed, or assessed at too low a rate, or had been made the subject of excessive relief under the Act or that excessive loss or depreciation allowance had been computed, and to proceed to reassess the income of the assessee.
The appellant was already assessed to income tax for the years 1945 46 and 1946 47 under the Act of 1922.
Counsel for the appellant concedes that the appellant did not comply with the notice dated June 24, 1959, and filed first a return for the assessment year 1946 47 and thereafter a return for the assessment year 1945 46.
He, however, submits that even if the return was not demanded, since the return for 1946 47 was filed by the appellant the Income tax Officer was bound to consider that return according to law and to pass appropriate orders of assessment thereon and so long as he did not do so, he was incompetent to issue a notice of reassessment either under section 34 of the Income tax Act of 1922, or section 148 of the Income tax Act, 1961.
We are unable to accept that contention.
The Act does not provide for any machinery for dealing with voluntary returns filed by an assessee after assessment of income for the year of assessment is completed.
Such a voluntary return does not_ operate as a bar to the Income tax Officer issuing a notice of reassessment.
This Court has held in Ranchhoddas 's case(1) that 'where no return has been filed by the assessee within the period prescribed by section 22(1) of the Income tax Act, 2922, the assessee is entitled in law to submit a voluntary return in answer, to the general notice under section 22(1 ) before assessment is completed, for a return (1) 135up.
CI/68 14 708 answer to the general notice can under section 22 (3) be/lied at any time before assessment and for filing such a return there is no limit of time, and when such a voluntary return is filed, the Income tax Officer cannot ignore that return voluntarily filed and issue a notice of reassessment under section 34 of the Income tax Act, 1922.
A notice of reassessment before the voluntary return is disposed of is therefore invalid.
But the principle of Ranchhoddas 's case(1) only applies to cases where no assessment of the income of the assessee has been made.
Where the income of the assessee has been assessed to tax, it is not open to the assessee on coming to learn or apprehending that proceedings under section 34 of the Act will be taken against him to file a voluntary return and avoid the issue of a notice under section 34 against him.
In section Raman Chettiar 's case(2) also a Hindu undivided family had not filed any return for the assessment year 1944 45.
The Income tax Officer issued a notice under section 34 of the Indian Income tax Act, 1922, in April 1948 calling upon the assessee to file a return of income, and the assessee complied with the notice and filed a return on September 4, 1948.
In the course of the proceeding, it was discovered that the notice under section 34 was invalid, because the Commissioner 's sanction was not obtained.
The Income tax Officer then issued a fresh notice on February 27, 1953, in respect of the assessment year 1944 45 and passed an order of assessment in respect of the income which had not been assessed.
This Court held that the return submitted on September 4, 1948, by the assessee in response to the invalid notice under section 34 was a return within the meaning of section 22(3) of the Act, and the Income tax Officer could not ignore it and issue a notice under section 34 on the assumption that there had been omission or failure by the assessee to make a return of his income under section 22, and on that ' account the assessment under section 34 was invalid.
In that case also no return had been filed by the assessee pursuant to section 22 and no order of assessment of the income of the assessee for the year 1944 45 was recorded.
The principle of Ranchhoddas 's case(x) and section Raman Chettiar 's case(2) has, in our judgment, no application to cases where a return has been filed by the assessee and assessment made and thereafter apprehending proceedings under section 34 of the Indian Income tax Act, 1922, the assessee files another return.
Unless a notice of reassessment is issued by the Income tax Officer, the assessee cannot after an order of assessment is made submit a return of his income for the year for which he is already assessed and call upon the Income tax Officer to assess his income.
Such a proceeding would be futile.
It is true that a notice under section 34 is also a notice of assessment, but relying upon section 22(3) the assessee may furnish a 'revised return to rectify an omission or wrong statement, or furnish a return pur (1) (1) 709 suant to a requisition under section 34: he cannot seek to rectify his return on which assessment has already been made.
The return filed on August 17, 1959, therefore, did not deprive of the Income tax Officer of his jurisdiction to start proceedings under section 34 of the Indian Income tax Act, 1922, against the assessee.
There is no dispute that after the repeal of the Act of 1922, it was competent to the Income tax Officer to issue a notice under section 148 of the Income tax Act, 1961, for assessment of the income of the assessee if no proceeding for assessment had been commenced prior to April 1, 1962.
The appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was assessed to pay tax on his income for the assessment years 1945 46 and 1946 47 under section 23(3) of the Income tax Act, 1922.
Thereafter, on June 24, 1959, the Income Tax Officer issued a notice of reassessment under section 34 requiring the appellant to submit a return of his income assessable for the year ending March 31, 1946 on the ground that the income of the appellant had escaped assessment.
The preamble to the notice however, referred to the assessment years 1946 4 7 and 1945 46.
The appellant filed a return for the assessment year 1946 47, and when his attention was drawn to the body of the notice, he flied a fresh return for the assessment year 1945 46 admitting that he had misunderstood the notice.
On March 14, 1963 the Income Tax Officer issued another notice under section 148 of the Income tax Act, 1961, calling upon the appellant to submit a return of his income for the assessment year 1946 47, on the ground that his income for that year also had escaped assessment.
The appellant, thereupon flied a writ petition in the High Court for quashing the two notices dated June 24, 1959 and March 14, 1963 but the petition was dismissed.
In appeal to this Court, on the questions, whether; (1 ) by the notice dated June 24, 1959 the appellant was called upon to file a return for the assessment year 1946 47 and therefore the reassessment proceedings for the assessment year 1945 46 were incompetent; and (2) since the appellant had submitted another re.turn for the assessment year 1946 47 the notice dated March 14, 1963.
, was incompetent, because a notice under section 34 of the Income tax Act, 1922, or section 148 of the Income tax Act 1961, could not be issued so long as the return was not considered and disposed of, HELD: (1) Though there was some negligence in drawing up the preamble to the notice dated June 24, 1959 it did not affect its validity for the assessment year 1945 46.
The appellant was clearly informed that he had to file a return of his income assessable for the year ending March 31, 1946 that is for the assessment year 1945 46, and the appellant himself had admitted his mistake in construing it.
[706 B D] (2) The Act does not provide any machinery for dealing with voluntary returns filed by an assessee after assessment of income for the year of assessment was completed.
When the income of the assessee had been assessed to tax, it was not open to him, to file another voluntary return and avoid the issue of a notice either under section 34 of the 1922 Act or section 148 of the 1961 Act.
The cases, Commissioner of Income tax vs Ranchhoddas Karsondas, and Commissioner of Income tax vs
section Raman Chettiar, 55 I.T.R. 630 (S.C.) on which the appellant relied are cases where there was no order of assessment for the rele 705 vant year and their principle has no application to the present case.
Unless a notice of reassessment is issued by the Income Tax Officer, the assessee cannot, after an order of assessment is made, submit a return of his income for the year for which he was already assessed and call upon the Income Tax Officer to assess his income.
[707 G; 708 C, F G]


judgement:
Appeal No. 1864 of 1967.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated August 21, 1967 of the Andhra Pradesh High Court in Election Petition No. 13 of 1967.
P. Ram Reddy and A.V.V. Nair, for the appellants.
681 D. Narsaraju, R.V. Pillai and A. Sitarama Reddy, for respondent No. 1 G. Narayana Rao, for respondent No. 2.
The Judgment of the Court was delivered by Mitter, J.
On April 6, 1967 the appellants before us, fled an Election Petition in the High Court of Andhra Pradesh challenging the election of the first respondent, B.N. Reddi, to the Andhra Pradesh Legislative Assembly from the Kollapur Constituency inter alia on the ground of corrupt practices committed by him, his election agent, polling agents and other workers mentioned in the schedule to the petition with his consent and praying for a declaration that the second respondent, K. Ranga Das, was duly elected from the said constituency.
The third respondent was another candidate who had contested the election but had fared very badly.
The first respondent secured 25,321 votes at the election overtopping the votes polled by the second respondent by approximately 1600.
The petitioners stated in paragraph 5 of the petition that one ' V.K. Reddi who had firfiled his nomination paper had been made to withdraw his Candidature by the first respondent on payment of an illegal gratification of a sum of Rs. 10,000/ .
This allegation was repeated in paragraph 10.
The first respondent was also charged with other corrupt practices m diverse other paragraphs of the petition.
The first respondent put in his written statement on 28th June, 1967; the second respondent put in his counter affidavit on June 26, 1967.
The issues were settled on July 24, 1967.
On August 4, 1967 the petitioners filed Application No. 161/1967 for impleading V.K. Reddi.
Thereafter they wanted to withdraw that application when the examination of witnesses had commenced.
On August 7, 1967 this application was dismissed.
On August 8, 1967 the first respondent 'filed Application No. 169/1967 praying for dismissal of the petition on the ground that although V.K. Reddi had been charged with corrupt practices he had not been impleaded as a party to the petition which was liable to be dismissed under the provisions of section 82(b) of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act ') in compliance with section 86(1).
The election petitioners filed Application No. 187 of 1967 for withdrawing the allegations against V.K. Reddi, or, in the alternative, to implead him as a respondent.
They also filed Application No. 186/1967 for condoning the delay in seeking to implead V.K. Reddi in Application No. 187/1967.
The second respondent filed a number of applications of which it is necessary to take note of a few only.
Application No. 174/1967 was filed for condoning the delay in seeking to implead V.K. Reddi in Application No. 175/1967.
Application No. 175/1967 was for the purpose of 682 impleading V.K. Reddi as a party respondent to the election petition.
The learned trial Judge held that the allegations contained in election petition amounted to an imputation of corrupt practice to V.K. Reddi and although of the view that the prayer in Application No. 169/1967 for condonation of delay was allowable in suitable cases, he felt himself bound by the decision of Kumarayya, J. in Applications Nos.
150 155/1967 in Election Petition No. 11 of 1967 and dismissed the amendment application No 169/1967.
Before us a faint attempt was made to argue that the allegation against V.K. Reddi did not amount to a charge of corrupt practice but that it was the first respondent who was guilty of such a practice by making the payment of illegal gratification.
The argument has only to be set down to be rejected.
In paragraph 5 of the petition, the definite averment was that V.K. Reddi had been made to withdraw his candidature by the first respondent on payment of an illegal gratification of Rs. 10,000/ .
If the payment of Rs. 10,000/ amounts to an illegal gratification the taint attaches not only to the payer, the first respondent, but also to the payee,.
V. K. Reddi.
The second point urged was that the learned Chief Justice 's view in regard to the power of condonation of delay in impleading V.K. Reddi was correct and although he could not give effect to his own view because he felt himself bound by the decision of Kumarayya, J. we ought to accept the appeal and uphold his view.
This argument was developed as follows.
An election petition was in essence an application to the High Court for the purpose of the Indian and as such section 29(2) of the Act of 1963 was applicable to such petitions drawing in its chain the applicability of section 5 of the Act giving the court the power to admit the same if it was satisfied that the applicant had sufficient cause for not preferring the application within the prescribed period of limitation.
The Act as it now stands provides by section 80A that the court having jurisdiction to try an election petition shall be the High Court.
Under section 81 (1 ) "an election petition calling in question any election may be presented on one or more of the grounds specified in sub section
(1 ) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days, but not earlier than, the date of election of the returned candidate . " section 82 runs as follows : "A petitioner shall join as respondents to his petition 683 (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition.
" Section 83 lays down inter alia that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of such practice.
Section 86( 1 ) provides that: "The High Court shall dismiss an election petition which does not comply with the provisions of section 81, or section 82 or section 117.
" The last mentioned section relates to the giving of security for costs.
Sub section
(4) of section 86 gives any candidate not already a respondent, a right to be joined as one upon application to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made.
Under sub section (5) "The High Court may, upon such terms as to.
costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
" Sub sections
(6) and (7) aim at the speedy disposal of the election petitions.
Section 87 ( 1 ) provides that: "Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits :" The proviso to the sub section gives the High Court discretion to refuse, for reasons to be recorded in writing, to examine any witness.
Sub section
(2) makes the provisions of the Indian Evidence 684 Act applicable in all respects to the trial of an election petition.
Section 98 shows the nature of the order to be made by the High Court at the conclusion of the trial of an election petition.
Section 99 makes it obligatory on the High Court while making an order under section 98 in cases where any charge is made in the petition of any corrupt practice having been committed at the election, to record a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice as also the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice.
There is.
a proviso to the section which lays down that a person who is not a party to the petition shall not be so named unless he has been given notice to appear before the High Court and to show cause to the contrary.
In case he does so, he is further given the right to.
cross examine any witness already examined by the High Court and to give evidence in his defence.
Entry 72 of List I of the Seventh Schedule vests in Parliament the exclusive power to make laws with respect to elections to Parliament, to the Legislatures of States and to the offices of President and Vice President as also the Election Commission.
Under article 329(b) lm15 "Notwithstanding anything in this Constitution (a) (b) no election to either House of Parliament or to the House of either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
" In order to determine whether an election petition launched for the purpose of contesting the validity of an election is an application within the meaning of the Indian , it is necessary to examine the nature of the rights and liabilities involved therein and of the provisions of law which govern such determination.
The right of citizens to elect representatives of their choice either to the House of the People or to a Legislative Assembly of a State, the process of election beginning from the notification of general elections and the nomination of candidates, the general procedure at elections, taking of the poll and counting of votes and the publication of election results are all matters dealt with and covered by different provisions of the Act.
The right to elect is statutory and so are all the processes connected with the election.
There is no element of any common law right 685 in the process of election.
Part VI of the Act deals with disputes regarding election.
The second chapter of this Part shows how elections may be called in question, which courts have jurisdiction to try election petitions, how such a petition is to be presented, who are to be parties to the petition, what are to be the contents of the petition as also the relief which may be claimed by the petitioner.
The third chapter of this Part deals with the trial of election petitions.
The first section of this group makes it incumbent on the High Court to, dismiss an election petition straightaway if it does not comply with certain statutory requirements.
The next section is a guide to the procedure to be adopted by the High Court in the trial of an election petition.
This section does not equate an election petition with a suit but merely shows that subject to the provisions of the Act and.
of any rules made thereunder, the trial is to conform as nearly as possible to the trial of a suit under the Code of Civil Procedure.
This means that (a) the contestants have a right to file written statements, (b) both parties must disclose the documents on which they reply; (c) they must examine witnesses orally, if necessary, to substantiate the charges leveled or the defenses raised in the petition; and (d) the evidence to be adduced must comply with the requirements of the Indian Evidence Act.
There are however certain limitations as to the questions which may put to a witness contained in sections 94 and 95; the returned candidate has a right to recriminate under the provisions of section 97.
The High Court does not pass a decree as in the case of a suit but has to make an order in terms of section 98 which gives the nature of the orders to be made.
The High Court has to communicate the substance of its decision to the Election Commission and the Speaker or the Chairman as the case may be of the House of the People or of the State Legislature.
Chapter IV deals with withdrawal and abatement of election petitions.
Chapter IV A deals with appeals from the decisions of the High.
Court and Chapter V deals with costs and security for costs.
The above brief analysis is sufficient to show that the trial of an election petition is not the same thing as the trial of a suit.
As was pointed out by this Court in the case of Kamaraja Nadar vs Kunju Thevat(1), the provisions of the Act "go to show that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law . " The Court also emphasised on the peculiar character of an election petition by quoting from the observations of A. Sreenivasan vs Election Tribunal, Madras(2).
Reference was also made.
to the Tipperary case(3) where Morris, J. said: (1) at 596.
(2) 11 E.I. R. 278 at 293.
(3) 686 " . a petition is not a suit between two persons, but is a proceeding in which the constituency itself is the ' principal party interested.
" This aspect of an election petition was emphasised again in the ,case of Basappa vs Ayyappa(1) where it was held that the provisions of O. 23 r. 1 of the Code of Civil Procedure do not apply to election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission.
Even though section 87 ( 1 ) of the Act lays down that the procedure applicable to the trial of an election petition shall be like that of the trial of a suit, the Act itself makes important provisions of the Code inapplicable to the trial of an election petition.
Under O. 6 r. 17 C.P.C. a court of law trying the suit has very wide powers in the matter of allowing amendments of pleadings and all amendments which will aid the court in disposing of the matters in dispute between the parties are as a rule allowed subject to the law of limitation.
But section 86(5) of the Act provides for restrictions on the power of the High Court to allow amendments.
The High Court is not to allow the amendment of a petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
With regard to the addition of parties which is possible in the case of a suit under the provisions of O. 1 r. 10 subject to the added party 's right to contend that the suit as against him was barred by limitation when he was irapleaded, no addition of parties is possible in the case of an election petition except under the provisions of sub section
(4 ) of section 86.
Section 82 shows who are necessary parties to an election petition which must be filed within 45 days from the date of election as laid down in section 81.
Under section 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of section 81 or section 82.
Again the High Court must dismiss an election petition if security for costs be not given in terms of section 117 of the Act.
It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation.
But an election petition stands on a different footing.
The trial of such a petition and the powers of the court in respect thereof are all circumscribed by the Act.
The Indian of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith.
The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a court of law unless the application thereof has been excluded by any enact (1)[1959] S.C.R. 611.
687 ment: the extent of such application is governed by section 29(2) of the .
In our opinion however the cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian .
Before the recent amendment of the Representation of the People Act, election petitions had to be presented to the Election Commission and it was the Commission which was empowered under section 85 to dismiss the petition if the then provisions of section 81, section 83 and section 117 were not complied with.
It is only when the petition was not so dismissed that the Election Commission had to appoint an Election Tribunal for the trial of the petition.
Under section 85 the Commission had power to admit a petition presented after the prescribed period if it was satisfied that there was sufficient cause for the failure.
Section 90(4) of the Act of 1951 empowered the Tribunal to dismiss an election petition even if it had not been so dismissed by the Election Commission.
The Act as amended in 1966 gives the jurisdiction to try an election petition to the High Court of a State.
The provision for appeal in section 116 A was introduced in the Act for the first time in 1956 providing for an appeal from every order of the Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal was situate.
By sub section
(2) of section 116 A of the Act as amended in 1956 the High Court was, subject to the provisions of the Act, to have the same powers, jurisdiction and authority and was to follow the same procedure with respect to an appeal ' under this Chapter (Chapter IV A) as if the appeal were an appeal from an original decree passed by a court situate within the local limits of its civil appellate jurisdiction.
Sub section
(3) fixed the time limit for filing the appeal.
to a period of 30 days from the date of the order complained of.
The proviso to this sub section gave the High Court discretion to entertain an appeal after the expiry of the period of 30 days, if it was satisfied that the appellant had sufficient cause for not preferring the appeal within such period.
This section was amended again in 1966 and section 116 A( 1 ) now provides for an appeal from an order of the High Court under section 98 or section 99 to the Supreme Court on any question, whether of law or fact.
Sub section
(2 ) of the new section is on the same lines as the old sub section
(3) excepting that the Supreme Court has been substituted for the High Court and the High Court for the Tribunal in the old section.
While the Act of 1956 was in force this Court had to go into the question as to whether section 29(2) of the of 1908 would be applicable to an appeal preferred to the High Court 688 from an order of the Tribunal.
In Vidyacharan Shukla vs Khubchand Baghel (1) the main question before this.
Court was whether for the purpose of computing the period of 30 days prescribed under section 116 A(3) of the Act, the provisions, of section 12 of the could be invoked.
The High Court had proceeded on the basis that section 29(2) applied to the case of appeals under section 116 A of the Act and on that basis had held that the appeal was within time if it was 'computed after making the deductions permitted by section 12 of the .
There was a good deal of discussion in the case about the scope and extent of section 29(2).
We are no.t concerned with that in the present appeal.
According to the learned Chief Justice and Ayyangar, J. "even on the narrowest construction of the words 'different from those prescribed therefor in the first schedule ' occurring in the opening part of section 29(2), the exclusion of time provided for by article 12 of the would be permissible in computing the period of limitation for filing the appeal to the High Subba Rao, J. (as he then was) took the view that section 116 A did not provide an exhaustive and exclusive code of limitation and did not exclude the general provisions of the .
The majority view was that though the fight of appeal was conferred by section 116 A of the Act of 1951 it was still an appeal under the Code of Civil Procedure and to attract article 156 of the First Schedule to the , it was not necessary for an appeal to be an appeal under the Code of Civil Procedure in that the right to prefer the appeal should be conferred by the said Code.
In our view.
sub section
(2 ) of section 116 A empowered the High Court to treat an appeal under that section presented to it as if it were an appeal from an original decree passed by a court within the local limits of its civil appellate jurisdiction.
Consequently, the jurisdiction, powers and authority of the High Court would be the same as in an appeal from an original decree of a lower court.
In other words, in entertaining the appeal and disposing of it the High Court could exercise the same powers as were available to it in an appeal from a decree of a lower court.
To such an appeal the powers of the High Court under section 12 of the would necessarily 130 attracted, Mr. Ram Reddy attempted to press that decision to service in the appeal before us.
In our view, the situation now obtaining in an appeal to this Court from an order of the High Court is entirely different.
There is no section in the Act as it now stands which equates an order made by the High Court under section 98 or Is.
99 to a decree passed by a civil court subordinate to the High (1) ; 689 Court.
An appeal being a creature of a statute, the rights conferred on the appellant must be found within the four corners of the Act.
Sub section
(2) of the present section 116 A expressly gives this Court the discretion and authority to entertain an appeal after the expiry of the period of thirty days.
No right is however given to the High Court to entertain an election petition which does not comply with the provisions of section 81, section 82 or section 117.
It was argued that if a petition were to be thrown out merely because a necessary party had not been joined within the period of 45 days no enquiry into the corrupt practices alleged to have been committed at certain elections would be possible.
This is however a matter which can be set right only by the Legislature.
It is worthy of note that although the Act has been amended on several occasions, a provision like section 86(1) as it now stands has always been on the statute book but whereas in the Act of 1951 the discretion was given to the Election Commission to entertain a petition beyond the period fixed if it was satisfied as to the cause for delay no such saving clause is to be found now.
The legislature in its wisdom has made the observance of certain formalities and provisions obligatory and failure in that respect can only be visited with a dismissal of the petition.
It is to be noted however that even though the Indian does not apply to an election petition provisions like sections 9 and 10 of the providing for computation of time which are in pari materia with sections 12( 1 ) and 4 of the would apply to such a petition.
The last submission of counsel for the appellants was that the failure to implead V.K. Reddi did not make the election petition liable to dismissal under section 86 (1 ).
It was argued that after V.K. Reddi had withdrawn from contest he was no longer a candidate within the meaning of section 79(b) or 82(b) of the Act.
In our opinion, it is not open to him to argue that point in view of the decision of this Court in Hat Swarup vs Brij Bhushan(1).
It is to be noted that this decision does not stand by itself.
In Mohan Singh vs Bhanwarlal(2) an attempt was made to get the election petition dismissed in limine on the ground that one of the candidates at the election, namely, Himmat Singh, against whom allegations of corrupt practice were made in regard to withdrawal of his candidature was not joined as a respondent.
It was held by this Court that a mere offer to help in getting employment was not an offer of gratification within the meaning of section 123(1)(B) of the Act.
The Court however observed: "If therefore the petition contained any imputation of corrupt practice made against Himmat Singh, it could (1) ; (2) ; 690 not be regarded as properly constituted unless he was impleaded as a respondent, for, by the defmition of "candidate" in section 79(b), the expression "any other candidate" in section 82(b) must include a candidate who had withdrawn Iris candidature." (see at p. 18 ).
Reference may also be made to Amin Lal vs Hunna Mal(1).
It was however sought to be argued that section 99 enjoined upon the High Court to name all persons who had been proved at the trial to have been guilty of any corrupt practice and where such a person who not a party to the petition, he was not to be so named unless he had been given notice to appear before the High Court and asked to show cause why he should not be so named and if he chose to appear, he was to be given an opportunity of crossexamining any witness already examined by the High Court and of calling evidence in his own defence and of being heard.
This provision, to our mind, only enjoins upon the High Court to give an opportunity to a person sought to be held guilty of a corrupt practice if he was not a party to the petition, but it does not apply to a person who is a necessary party thereto.
An obvious case for the use of powers.
under section 99 would be that of an agent guilty of commission of a corrupt practice with the consent of the candidate.
Such a person would not be a necessary party to the petition but he must have an opportunity of showing cause and of being heard before the High Court can name him as guilty of a corrupt practice while making an order under section 98.
In our opinion, the appeal has no merits and must be dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The election of the first respondent to the Andhra Pradesh Legislative Assembly at the General Election hold in 1967 was challenged by the appellants in an election petition.
Various corrupt practices were alleged appellants to have been committed by the first respondent, his agents and supporters.
One of these was that the first respondent paid a bribe to one R who had also filed nomination papers, in order to secure his withdrawal as a candidate.
After the issues were framed the appellants made an application to the Court for impleading R but it was dismissed.
The first respondent then filed an application under section 86(1) praying for the dismissal of the election petition on the ground that there had been compliance with section 82(b) of the Representation of the People Act, 1951 inasmuch as R against whom corrupt practice had been alleged had not been made a party.
The appellants filed an application seeking to with draw the allegation against R and in the alternative to implied him as are not.
They also prayed for condonation of delay in making the respondent.
The learned Judge of the High Court trying the election petition dismissed the aforesaid applications and refused to condone the delay.
The ' appellants came to this Court.
The contentions in the appeal were: (i) that the allegation against R did not amount to an allegation of corrupt practice, (ii) that section 5 and section 29(2) of the were applicable to the case and the High Court and this Court had power to condone the delay made by the election petitioner in impleading a necessary party, (iii) that R, having withdrawn from the contest was not a 'candidate '.
and (iv) that the procedure under section 99 ought to have been followed in respect of R. HELD: (i) The taint of illegal gratification attaches not only to the payer but also to the payee.
It could not therefore be accepted that the allegation against R that he had received illegal gratification did not amount to corrupt practice.[682 C D] (ii) The plea for condonation of delay in impleading R could not be accepted.
It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation.
But an election petition stands on a different footing.
The trial of such a petition and the powers of the court in respect ' thereof are all circumscribed bY the Representation of the People Act.
The Indian of 1963 is an Act to consolidate and amend the law of limitation 67f suits and other proceedings and for 680 purposes connected therewith.
The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a court of law unless the application thereof has been excluded by some enactment: the extent of such application is governed by section 29(2) of the .
However the cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self contained code which does not admit of the introduction of the principles or the provisions of the 'law contained in the Indian .
[686 H 687 B] Kamaraja Nadar vs Kunju Thevar, and Basappa vs Ayyappa, ; applied.
A. Sreenivasan vs Election Tribunal, Madras, 11 E.L.R. 278 and Tipperary case, (1875) 30 'M & H. 19, referred to.
After the amendment of the Representation of the People Act in 1966 there is now no section in the Act which equates an order made by the High Court under section 98 or section 99 to a decree passed by a civil court subordinate to the High Court.
An appeal being a creature of statute, the rights conferred on the appellant must be found within the four corners of the Act.
Sub section
(2) of the present section 116 A expressly gives this Court the discretion and authority to entertain an appeal after the expiry of the period of thirty days.
No right is however given to the High Court to entertain a petition which does not comply with the provisions of section 81, section 82 or section 117.
Any hardship resulting from this situation is a matter which can be set right only by the Legislature.
The Legislature in its wisdom has made the observance of certain formalities and provisions obligatory and failure in that respect can only be visited with a dismissal of the petition.
[688H 689 C] Vidyacharan Shukla vs Khubchand Baghel, [1964] 6 S.C.R. 129, distinguished.
O bitter: Even though the Indian does not apply to an election petition provisions like section 9 and section 10 of the providing for computation of time which are in pari materia with sections 12 (1) and 4 of the would apply to such a petition.
[689 E] (iii) A candidate who has withdrawn from the election remains a 'candidate ' within the meaning of section 79(b) and section 82(b) of the Act.
[689 F] Har Swarup vs Bril Bhushan, [1967] IS.C.R. 342, Mohan Singh vs Bhanwarlal, ; and Amin Lal vs Hunna Mat ; relied on.
(iv) Section 99 only enjoins upon the High Court to give an opportunity to a person sought to be held guilty of a corrupt practice if he was not a party to the petition, but does not apply to a person who is a necessary party.
[690 C D]