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TMI Blog1979 (5) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional order. The sister appeal filed by the respondent relates to that part of the judgment of the High Court reverses the declaration granted by the trial judge that he be deemed the returned candidate. 2. This little preface leads us on to a brief narration of the admitted facts. The appellant (in C.A. 2406 of 1977) was a candidate for election to the Corporation of the City of Nagpur from Ward 34 and his nearest rival was the 1st respondent, although there were, other candidates, also. Judged by the plurality of votes, the appellant secured a large lead over his opponents and was declared elected. The end of the poll process is often the beginning of the forensic process at the instance of the defeated candidates with its protracted trial and appeals upon appeals, thus making elections doubly expensive and terribly traumatic. The habit of accepting defeat with grace, save in gross cases, is a sign of country's democratic maturity. Anyway, in the present case, when the appellant was declared the returned candidate the respondent challenged the verdict in court on a simple legal abound of ineligibility of the former who was, during the election, a development offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucial issue is whether this taboo in Regulation 25(4) spells electoral ineligibility or merely sets rules of conduct and discipline for employees, violation of which will be visited with punishment but does not spill over into the area of election law. 5. Two decisions, one of Calcutta Sarafatulla Sarkar v. Surja Kumar Mondal and the other of Punjab Haryana Uttam Singh v. S. Kirpal Singh support the appellant's position that mere rules regulating service discipline and conduct, even though they have the force of law, cannot operationally be expanded into an interdict on candidature or amount to ineligibility for standing for election. Chakravarthi, C.J., speaking for a Bench of the Calcutta High Court, upheld the stand: It appears to me to be 'abundantly' clear that in so far as the Government Servants' Conduct Rules provide for discipline and document (conduct?) and, in doing so, forbid conduct of certain varieties their aim is merely regulation of the conduct of Government servants, as such servants, and that aim is. sought to be attained by prescribing certain rules of correct conduct and laying down penalties for their breach. If a Government servant dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and repelled the further submission that the disqualification was founded on the policy that an employee of the Corporation, if he became a member of the Legislature or City Corporation would not be able to carry out his functions. The court also dissented from a Division Bench decision of the Madras High Court which took a contrary view. 8. It is fair to notice the Madras ruling before we discuss the fundamentals and declare the law as We read it to be. In the Madras case Narayanaswamy v. Krishnamurth, I.R. (1958) Mad. 513 which related to an Assembly seat the court felt that the point was not free from difficulty but reached the conclusion that the Regulation made by the LIC was perhaps intended to ensure undivided attention upon their duties as such employees but it also operated as a disqualification, The contention before the court was somewhat different. The question posed was whether the concerned Regulation could be treated as law which fulfilled the requirements of Article 191(1)(e) of the Constitution. The major consideration of the court was as to whether a regulation to ensure proper performance of duties by the employees of the Corporation could also be treated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a member of a local authority. The thrust of Regulation 25 is disciplinary not disqualificatory. Its intent imposes its limit, language used by a legislature being only a means of communicating its will in the given environment. This is obvious from the fact that the Chairman is given the power to permit such participation by an employee depending on the circumstances of each case. Even the range of punishments is variable. No ground rooted in public policy compels us to magnify the disciplinary prescription into a disenfranchising taboo. To revere the word to reverse the sense is to do injustice to the art of interpretation. Reed Dickerson quotes a passage from an American case to highlight the guideline: The Interpretation and Application of Statutes by Reed Dickerson, p. 199 The meaning of some words in a statute may be enlarged or restricted in order to harmonize them with the legislative intent of the entire statute.... It is the spirit...of the statute which should govern over the literal meaning. 12. There is a further difficulty in construing the Regulation as stipulating an ineligibility for candidature because there is a proviso therein for the Chairman to grant per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial sanction, In Hutton v. Phillips the Supreme Court of Delaware said: 45 Del. 156, 160, 70 A. 2nd 15, 17 (1949). (Interpretation) involves far more than picking out dictionary definitions of words or expressions used. Consideration of the context and the setting is indispensable properly to ascertain a meaning. In saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or far-fetched, or unusual, or unlikely. 15. This perceptive process leaves us in no doubt about the soundness of the interpretation which has appealed to the Full Bench of the Punjab, and Haryana High Court and the Division Bench of the Calcutta High Court. 16. There is a broader constitutional principle which supports this semantic attribution. The success of our democracy to 'tourniquet' zenry indifferent to the political process is an enemy of the Republ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim a seat through an election petition merely out of speculative possibilities of success. The reasoning of the Bombay High Court not merely accords with the well-known criteria incorporated in the Representation of the People Act,. 1951 as well as in the rulings thereon by this Court but also is in consonance with the election sense. It is true that there is no common law rule applicable in this area and election statutes have to be strictly construed but that does not doctrinally drive the Court to surrender to bizarre verbalism when a different construction may inject reasonableness into the provision. 19. Section 428 of the Corporation Act aims at sense and when a plurality of contestants are in the run other than the one whose election is set aside, predictability of the next highest becomes a misty venture. The rule in Section 428 contains the corrective in such situations and the pregnant expression 'against whose election no cause or objection is found' gives jurisdiction to the court to deny the declaration by the next highest and to direct a fresh election when the constituency will speak We concur in the reasoning of Masodkar, J. in the said ruling. 1977 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment Officer and a salaried employee in the Life Insurance Corporation (for short the L.I.C.) had neither sought nor obtained the Chairman's permission for offering his candidature and as such was disqualified from standing at the election under Section 15(g) of the Corporation Act read with Regulation 25(4) of L.I.C. (Staff) Regulations, 1960. The election was also challenged on grounds of corrupt practices, communal propaganda and distribution of malicious and defamatory hand-bills on the part of the returned candidate. In his written statement the returned candidate refuted all the grounds on which his election was challenged. On the evidence and materials produced by the parties the learned Assistant Judge, who heard the matter came to the conclusion that the returned candidate who was working as a Development Officer in the L.I.C. was its whole time salaried employee and since he had contested the election without seeking or obtaining the permission of the Chairman of the L.I.C. he suffered a disqualification under Section 15(g) of the Corporation Act read with. Regulation 25(4) of the L.I.C. (Staff) Regulations, 1960 which vitiated his election. On the other ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urned candidate had offered his candidature without seeking or obtaining permission of the Chairman he could be said to have committed a breach of one of the terms or conditions of his service for which any penalty ranging from censure to dismissal could be imposed upon him but the purpose of Regulation 25(4) was not the enactment of any disqualification and as such the terms of Section l5(g) of the Corporation Act were not answered by the mere fact that the returned candidate was an employee of the L.I.C. and was subject to Regulation 25(4). Reference was also made to Regulation 2 and proviso (iii) to Regulation 25(4) to lend support to the said contention. It was pointed out that Regulation No. 2 made the Staff Regulations applicable to every whole-time salaried employee of the L.I.C. in India unless otherwise provided by the terms of any contract, agreement or letter of appointment which clearly suggested that certain whole-time salaried employees of the L.I.C. whose terms and conditions of service were otherwise governed by a contract, agreement or letter of appointment would of outside the purview of these Regulations and the prohibition contained in Regulation 25(4) would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus: 15. No person shall be eligible for election, selection, or appointment as a Councillor if he- (g) is under the provisions of any law for the time being in force, ineligible to be a member of any local authority, Provided that a disqualification under Clause (e)(f)(g) or (i) may be removed by an order of the Provincial Government in this behalf. Regulation 25(4) together with proviso (iii) runs thus: Prohibition against participation in Politics and standing for Elections: (4) No employee shall canvass or otherwise interfere or use his influence in connection with or take part in an election to any legislature or local authority. Provided that- (iii) the Chairman may permit an employee to offer himself as a candidate for election to a local authority and the employee so permitted shall not be deemed to have contravened the provisions of this regulation. It may be stated that Regulation 39 provides for imposition of several penalties ranging from censure to dismissal upon ah employee if he were to commit a breach of any of the Staff Regulations. 27. The simple question is whether Regulation 25(4) read with Section 15(g) constitutes or amounts to an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to accept such construction for more than one reason. In the first place the heading of the Regulation clearly shows that it deals with the topic and intends to provide a prohibition against standing for election. Secondly Clause (4) of the said Regulation in plain and express terms provides; No employee shall...take part in an election to any local authority . In other words, by using negative language it puts a complete embargo (subject to proviso (iii) upon every employee from taking part in an election to any local authority. How else could a disqualification or ineligibility be worded? To say that Regulation 25(4) merely creates a prohibition against standing for election but does not create any ineligibility or disqualification to stand for an election is merely to quibble at words. In my view, there is no distinction between a legal prohibition against a person standing for election and the imposition of an ineligibility or disqualification upon him so to stand. It is true that the purpose of framing Staff Regulations was and is to define the terms and conditions of service of the employees of the L.I.C. and that being the purpose it is but natural that a provision for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rning to the decided cases, it may be observed that a construction similar to the one which I have placed on Regulation 25(4) of L.I.C. (Staff) Regulations 1960 was placed by the Madras High Court on a similar L.I.C. Staff Regulation No. 29 read with Article 191(1)(e) of the Constitution in G. Narayanaswamy Naidu's case (supra) and the very argument that Regulation 29 was merely a rule of conduct prescribed for the employees of the L.I.C., the breach of which might result in disciplinary action being taken against them but it did not render the employees disqualified for standing for election was in terms negatived. At page 549 of the report the relevant observations run thus: Though the point is not free from difficulty, we have reached the conclusion that this argument of the respondents must be rejected. We see no distinction between a legal prohibition against a person standing for election, and the imposition of a disqualification on him so to stand. It might be that the object of the regulation was to ensure that the employees of the Corporation bestowed undivided attention upon their duties as such employees, but this does not militate against the prohibition operatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rohibition contained in Rule 23 of the Government Servants' Conduct Rules. In fact, this aspect of the matter has been emphasised by the learned Chief Justice in para 5 of his judgment where he observed: The learned Single Judge considered it immaterial that the holding of a post under the Government had not mentioned as one of the disqualifications for election in Section 10A. Bengal Village Self Government Act, 1919 because in his view, the enumeration of disabilities in that section was not exhaustive. In other words, it is clear that had Section 10A of the Bengal Village Self-Government Act, contained either a specific disqualification or a residuary provision of the type that is to be found in Section 15(g) of the Corporation Act, 1948 or Article 191(1)(e) of the Constitution. Rule 23, it appears, might have been differently construed. Construing Rule 23 by itself the learned Chief Justice came to the conclusion that the prohibition therein was directed at personal conduct and not at right owned by the Government servant concerned. In the instant case Regulation 25(4) has to be read with Section 15(g) of the Corporation Act, 1948. The learned Chief Justice referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the relevant Regulation. His appeal, therefore, deserves to be dismissed. 31. Before parting with this appeal I feel constrained, as a part of my duty, to give vent to my feelings of discomfiture and distress over one thing which is exercising my mind for a considerable time in this Court. In all humility I would like to point out that prefaces and exordial exercises, perorations and sermons as also theses and philosophies (political or social), whether couched in flowery language or language that needs simplification, have ordinarily no proper place in judicial pronouncements. In any case, day in and day out indulgence in these in almost every judgment, irrespective of whether the subject or the context or the occasion demands it or not, serves little purpose, and surely such indulgence becomes indefensible when matters are to be disposed of in terms of settlement arrived at between the parties or for the sake of expounding the law while rejecting the approach to the Court at the threshold on preliminary grounds such as-non-maintainability, laches and the like. I am conscious that judicial activism in many cases is the result of legislative inactivity and the role of a Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) provides that if the election of the returned candidate is either declared to be null and void or is set aside the District Court shall direct that the candidate, if any, in whose favour next highest number of valid votes is recorded after the said person or after all the persons who have returned at the said election and against whose election no cause or objection is found shall be deemed to have been elected. The underlined words give jurisdiction to the District Court to deny the declaration to the candidate who has secured the next best votes. The High Court has rightly taken the view that there was no material on record to show how the voters, who had voted for the returned candidate, would have cast their votes had they known about the disqualification. Therefore, this appeal also deserves to be dismissed 33. In the result I propose that both the appeals should be dismissed with no order as to costs in each. R. S. Pathak, J. 34. Manohar Nathurao Samrath was a Development Officer in the service of the Life Insurance Corporation, of India, His employment was governed by the Life Insurance Corporation of India (Staff) Regulations, 1960 [shortly referred to as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al authority and the employee so permitted shall not be deemed to have contravened the provisions of this regulation. 39. The Nagpur Corporation Act contains a number of provisions concerned with holding elections to the Nagpur Corporation. Sections 9 to 22 deal with various matters, electoral roll, the qualification of candidates, disqualification of candidates, term of office, filling up of casual vacancies, and so on. There is an entire Code of election law. And Section 15 is one of its provisions. Now, Section 15 of the Nagpur Corporation Act declares a person ineligible for election as a Councillor on any one of several grounds. He may be ineligible because he is not a citizen of India, that is to say, he lacks in point of legal status. He may also be ineligible in point of lack of capacity defined by reference to disqualifying circumstances, for example, he may have been adjudged by a competent court to be of unsound mind. The disqualification may be found, by nature of Clause (g), under the provisions of any subsisting law. But the law must provide that he is ineligible to be a member of any local authority. The law must deal with ineligibility for membership, and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estrain the employee from exercising it in the interests of service discipline. If in fact the employee exercises the right, he may be punished under Regulation 39 with any of the penalties visited on an employee-a penalty which takes its colour from the relevance of employment, and has nothing to do with the election law. No penalty under Chapter III of the (Staff) Regulations can provide for invalidating the election of an employee to a legislature or a local authority. That would be a matter for the election law. It is significant that; when the restraint on standing for election imposed by Regulation 25(4) has to be removed, it is by the Chairman of the Life Insurance Corporation of India under the third proviso. When he does so, it is-as a superior in the hierarchy of service concerned with service discipline. He does not do so as an authority concerned with elections. 41. Therefore, in my judgment, Regulation 25(4) of the (Staff) Regulation is not a law within the contemplation of Section 15 (g) of the Nagpur Corporation Act. 42. In reaching that view, I find myself, with regret, unable to subscribe to what has been observed by the Madras High Court in Narayanaswamy v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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