Tek Chand
Vs. Dile Ram [2001] Insc 36 (24 January 2001)
R.C.Lahoti,
S.V.Patil Shivaraj V. Patil, J.
L.J
Aggrieved
by the judgment and order dated 24.03.2000 passed by the High Court of Himachal
Pradesh in Election Petition No. 2/98, setting aside the election of the
appellant from 61-Nachan (S.C.) Assembly Constituency and declaring it void,
this appeal has been filed by the appellant under Section 116-A of the
Representation of People Act, 1951 (for short `the RPA), calling in question
the correctness and validity of the said judgment and order of the High Court.
The
material and relevant facts, to the extent they are considered necessary for
the disposal of this appeal, are set out as under.
The respondent
Dile Ram filed the election petition challenging the election of the appellant
from 61-Nachan (S.C.) Assembly Constituency in Himachal Pradesh, pleading that
the nomination papers were filed by the appellant, the respondent and others.
He was set up as a candidate by the Bhartiya Janata Party (BJP) and the
appellant was a candidate sponsored by the Indian National Congress (INC).
After
the scrutiny and withdrawal of nomination papers, five candidates remained in
the field. The polling took place on 28.02.1998. The appellant was declared
elected by the Returning Officer on 02.03.1998 after the counting of votes.
The
votes secured by the five candidates are as given below:-
------------------------------------------------------ Sr. Name of the candidate
Party Number of No. affiliation votes polled
1. Sh.
Tek Chand Indian National 14,390 Congress
2. Sh.
Dile Ram Bhartiya Janata 13,631 Party
3. Sh.
Sohan Lal Janata Dal 328
4. Sh.
Damodar Himachal Vikas 9,182 Party
5. Sh.
Nikka Ram Independent 2,287 -----------------------------------------------------
The respondent sought for setting aside the election of the appellant on the
ground that it was void as Nikka Ram, one of the contesting candidates
mentioned at Sr. No.5 above was holding office of profit under Government of Himachal
Pradesh on the date of filing of his nomination paper as well as on the date of
scrutiny thereof. The Returning Officer ought to have rejected his nomination
paper as per Section 36(2)(a) of the RPA. According to the respondent, Nikka
Ram was working as Junior Engineer in Irrigation and Public Health Department
of Himachal Pradesh on the relevant dates and was holding office of profit
under the State Government and as such, he was disqualified from contesting the
election in view of the bar created under Article 191 (1)(a) of the
Constitution of India. His nomination paper was improperly and wrongly accepted
by the Returning Officer which in turn had materially affected the result of
the election in so far as it concerned the returning candidate the appellant.
In
support of the grounds of challenge, material averments are made in paras 4-5
of the election petition, which were denied in the written statement filed by
the appellant. Since the High Court has set out the pleadings of the parties in
sufficient details, we consider it unnecessary to repeat them. According to the
respondent, Nikka Ram was an active worker of the Rashtriya Swayam Sevak Sangh
(RSS) and was closely associated with the cadre and workers of RSS and BJP; the
vote bank of the respondent as well as the said Nikka Ram by and large was
common as both of them were in contact with the BJP and RSS workers, supporters
and well-wishers; having failed to get BJP ticket, Nikka Ram filed his
nomination paper as an independent candidate only with an object to cut into
the votes of the respondent and damage his chances of election.
Hence,
the result of the election so far it concerned the appellant had been
materially affected.
The
appellant denied that nomination paper of Nikka Ram was wrongly and improperly
accepted by the Returning Officer. It was also denied that acceptance of his
nomination paper had materially affected the result of election insofar as it
concerned the appellant. According to him it was wrong to say that a mere
margin of votes would determine or would be relevant to determine that result
of election has been materially affected. He also pleaded that he was not a
member or active worker of BJP or RSS and he did not campaign in the election
for votes as belonging to BJP.
Certain
preliminary objections were taken as to the maintainability of the election
petition. By a detailed order dated 3.8.1998, the High Court held that the
petition did not suffer from any fatal defect so as to entail its dismissal at
the threshold. Since, thereafter main election petition itself was disposed of
after a full dressed trial on merits by the impugned judgment, it is
unnecessary to go into further details on this aspect.
In the
light of these pleadings of the parties, the learned trial Judge framed the
following issues:-
1.
Whether the nomination paper of shri Nikka Ram was improperly and wrongfully
accepted by the Returning Officer? OPP
2. If
Issue No. 1 is proved in favour of the petitioner, whether the result of the
election has been materially affected so far as it concerns the election of the
respondent? OPP
3.
Whether Shri Nikka Ram was holding an office of profit under Government of Himachal
Pradesh and was disqualified for being chosen as member o Himachal Pradesh Legislative
Assembly? OPP
4.
Whether Shri Nikka Ram was an active member of the Rashtriya Swayam Sewak Sangh
(R.S.S.) as alleged. If so, its effect? OPP
The
trial court took up issue nos. 1&3 together and after discussion in the
light of evidence, concluded that the nomination paper of Nikka Ram was
improperly and wrongfully accepted by the Returning Officer as he was holding
an office of profit under the State Government on the date of filing of his
nomination paper as well as on the day of their scrutiny by the Returning
Officer and was disqualified for being chosen as a Member of the Himachal
Pradesh Legislative Assembly.
Issue
nos. 2&4 were taken up together for consideration stating that they were
inter-connected. The findings were recorded on these issues also in favour of
the respondent holding that by the improper and wrongful acceptance of the
nomination paper of Nikka Ram, the result of election has been materially
affected so far as it concerned the election of the appellant. In view of these
findings, the election petition was allowed, the election of the appellant was
set aside declaring it as void under Section 100(1)(d)(i) of the RPA.
Shri
D.D. Thakur, learned senior counsel for the appellant, urged that:
1. the
High Court committed an error in not accepting the arguments advanced on behalf
of the appellant that in view of the proviso to sub-rule (2) of Rule 48-A of
the Central Civil Services (Pension) Rules, 1972 (for short the Rules), the
voluntary retirement sought for by Nikka Ram became effective from the date of
expiry of the period specified in the notice dated 5.12.1994; before the expiry
of the said period admittedly no communication was made to said Nikka Ram
either accepting or refusing voluntary retirement sought by him; the High Court
wrongly brushed aside this argument stating that there was overwhelming
evidence on record to show that the voluntary retirement was not accepted.
2.
Nikka Ram gave notice on 5.12.1994 seeking voluntary retirement under the
Rules; no communication was made to him till 28.2.1998, that is, the date of
election itself; no action was taken against Nikka Ram for participating in
election; in response to letter dated 25.3.1998 of the respondent a reply was
given on 26.3.1998 long after the result of election was declared on 3.3.1998.
In
these circumstances by operation of the proviso to Rule 48-A(2) of the Rules
Nikka Rams voluntary retirement became effective from the date of expiry of the
period specified in the notice. As such Nikka Ram ceased to be a Government
servant under the State and was not holding an office of profit. Thus he did
not suffer any disqualification during the relevant period and acceptance of
his nomination paper was absolutely right and justified.
3. The
respondent did not specifically plead giving material particulars as to how the
result of the election so far it concerned the appellant had been materially
affected and he failed to establish the same by cogent and acceptable evidence;
merely because the votes secured by Nikka Ram were three times more than the
difference of votes secured by the appellant and the respondent, it could not
be said as to how the votes secured by Nikka Ram could have been distributed in
the absence of any pleading and evidence in this regard; no material was placed
to show that trend or pattern of voting when in all there were five candidates
in the field.
4. The
approach of the High Court in appreciating the evidence placed on record was
not consistent with well established principles; the High Court simply accepted
the statements of the witnesses including that of the respondent made in
examination-in-chief without considering their evidence brought on record in
their cross-examination; the evidence of the appellant and his witnesses led in
rebuttal/defence was not considered along with the evidence led on behalf of
the respondent applying the same standards.
In
short, the analysis and appreciation of the evidence brought on record by the
High Court was not objective and appropriate.
Shri
P.S. Mishra, learned senior counsel for the respondent, submitted:
1. that
the findings recorded by the High Court based on evidence are quite justified
and they may not be disturbed. 2. The standard and burden of proof in the case
on hand cannot be equated to the one which is required in an election petition
filed on the ground of corrupt practices, i.e., as in a quasi criminal case; in
the present case the burden of proof having regard to the ground raised in the
election petition should be considered at par with a burden of proof as in any
civil case. 3. Having regard to the facts and circumstances of the case, the
evidence brought on record and the 2287 votes secured by Nikka Ram, which were
three times more than the difference of votes secured by the appellant and the
respondent, i.e., 759, the High Court was right in declaring the election of
the appellant void.
Further,
the court cannot expect proof in a case like this which is almost impossible so
as to establish how the wasted votes would have been distributed among the contesting
candidates. 4. Looking to the Fundamental Rule 56(k) and the Pension Rules the
acceptance of voluntary retirement of Nikka Ram by competent authority was
mandatory; in the absence of such acceptance he should be treated to have
continued in Government service; acceptance of voluntary retirement after the
expiry of the period specified in the notice was not automatic; acceptance of
voluntary retirement may be from a date later than the date specified in the
notice of voluntary retirement and the voluntary retirement could become
effective from the date of expiry of the period mentioned in the notice having
regard to Rule 48-A read as a whole along with Fundamental Rules touching the
question of voluntary retirement. We have carefully considered the submissions
made by the learned counsel for the parties in the light of the pleadings and
evidence brought on record. The following two points arise for our
consideration and decision in this appeal: - 1. Whether at the relevant time
Nikka Ram was holding an office of profit being in the service of the State of Himachal
Pradesh and as such his nomination paper was improperly accepted, and, if so 2.
whether the result of the election, insofar as it concerned the appellant, had
been materially affected to declare it void. Section 100, to the extent
relevant for the purpose of this case, reads: - 100. Grounds for declaring
election to be void. (1) Subject to the provisions of sub- section (2) if the
High Court is of opinion (a) .......... (b) .......... (c) .......... (d) that
the result of the election, in so far as it concerns a returned candidate, has
been materially affected (i) by the improper acceptance of any nomination.
In an
election petition where an election of a returned candidate is impeached under section
100(1)(d)(i) of the RPA, it is not enough only to establish that a nomination
of a candidate was improperly accepted. In addition, it has to be further
established that such wrong acceptance of nomination paper has materially
affected the result of the election in so far it concerned the returned
candidate. In this view, in this case, having regard to facts and contentions,
we think it is appropriate to take up the second point set forth above for
consideration first.
In
support of his case, the respondent (the election petitioner) examined PWs 1-10
including himself. The appellant (the respondent in the election petition)
examined RWs 1-13 including himself in rebuttal. The High Court having rightly
stated in para 73 of the judgment that the onus was very heavy on the
respondent on issue no. 2 and that burden had to be discharged by him not only
through specific and proper pleadings but also through cogent evidence but went
wrong in its approach while discussing the evidence and recording finding on issue
no. 2. As is evident from the discussion made by the High Court in paras 80-104
on the evidence led by the parties, the approach was almost one-sided. In
accepting the case of the respondent and his witnesses, as spoken to in
examination-in-chief without focusing the attention on what was brought about
in the cross- examination of these witnesses to test their truthfulness,
correctness, probability or veracity, the learned trial judge failed to
objectively analyse and evaluate the evidence. Further the evidence led by
appellant was also not kept in view while appreciating the evidence of the
respondent and his witnesses.
As is
evident from the election petition, the respondent did not specifically plead
that Nikka Ram was a member of RSS and / or BJP except stating that he was an
activist or actively associated with them; no documents were produced to
establish that he was a member of RSS and / or BJP; similarly nothing was
placed on record to show that he applied for and failed to get ticket from BJP
to contest the election as a BJP candidate; however it is stated that the vote
bank was common for both, the respondent and Nikka Ram. It is further stated
that Nikka Ram secured 2287 votes whereas the margin of difference between the
votes secured by the appellant and the respondent was only 759. As such the
votes secured by Nikka Ram were disproportionately large, being three times
more than the margin of difference between the votes secured by the appellant
and the respondent; had the nomination paper of Nikka Ram been rejected, the
votes polled in his favour would have definitely been polled in favour of the
respondent as those were pro-BJP and anti- establishment. The main plank of the
campaign of Nikka Ram was asking for votes in the name of Shri Atal Bihari
Vajpayee; he being an RSS activist would stand by the side of Shri Atal Bihari
Vajpayee if elected as MLA. Hence improper acceptance of nomination paper of
Nikka Ram had materially affected election of the appellant so far he was
concerned. It is not pleaded as to the pattern or trend of voting so as to show
how the wasted votes secured by Nikka Ram could have been distributed. In his
deposition the respondent (PW1) has not spoken to as to the trend of voting or
possible distribution of votes between the contesting candidates but for Nikka
Ram being in the field.
He
referred to greeting cards said to have been sent to several persons and he
received one Exbt. PW1/1 which was marked subject to objection but ultimately
that was not admitted in evidence. In examination-in-chief, he also stated that
Nikka Ram had connection with RSS and was also associated with BJP. He did not
assert or say that Nikka Ram was member of RSS and / or BJP. He admitted in
cross-examination that in 1993 also, the appellant contested and won the
election as an independent candidate. The respondent lost the election by a
margin of 7300 votes.
Congress
candidate in that election got only 3000 votes. In 1989 election to Lok Sabha,
Mr. Maheshwar Singh was the BJP candidate. He secured 5500 votes in this
constituency, more than the Congress candidate and the respondent who contested
the Assembly election in the year 1990 as a BJP candidate got less votes than
the BJP Parliamentary candidate. He has admitted that witnesses cited by him were
the BJP activists;
they
were office bearers of the party prior to 1991. He has further stated that one Ganga
Singh, a former M.P. is a resident of his constituency and his Panchayat. He
was not aware whether the said Ganga Singh supported him or opposed him. He was
President of the BJP earlier. He has further admitted that it is correct that
Nikka Ram never made any request for being made a member of the BJP in Nachan
constituency. I have no proof to the effect that the request was made by Nikka
Ram for obtaining the BJP ticket for Nachan constituency. I do not have the
record indicating that Nikka Ram was the active member of the BJP.
The
request for being made a member is to be formally accepted by an authority. I
am not aware whether the request made by Nikka Ram was accepted. In his
evidence, he stated that he never found Nikka Ram canvassing in his presence.
He only heard some people telling that he was trying to tell that after winning
the election, he would formally join BJP. He was unable to give names or
particulars of those some persons who were telling so.
Although
he made a statement that some members of the BJP joined Nikka Ram, he could not
give their names, parentage, village, place, time and their whereabouts. As to Exbt.
PW1/1, he admitted that it was not written in his presence;
it was
not signed by Nikka Ram in his presence and that his name, date and other
particulars were also not written in his presence. He stated that this card was
received by him through post. However, he did not have the possession of the
envelope with him. In the cross-examination, he further admitted that wife of
Nikka Ram had defeated the candidate of BJP in Zila Parishad elections and that
she secured 3700 votes. The BJP candidate secured 1200 votes only. It is also
admitted that wife of Nikka Ram was the President of Chatar Panchayat to which Tek
Chand, the appellant, belonged. She defeated both the Congress and BJP
candidates for the presidentship of the Panchayat. Nothing was brought on
record to show that the relationship between Nikka Ram and his wife were
strained or they belonged to different political parties or ideologies. From
this evidence of the PW1, it is not at all possible to hold that Nikka Ram was
either a member of RSS or BJP or was actively associated with them. One of the
cardinal principles of evidence is that the best possible evidence should be
placed before the court for establishing a particular fact or a relevant fact.
Either
to the membership or association of Nikka Ram with RSS or BJP, no documentary
evidence was placed on record such as membership register, application form,
correspondence or his participation in any of the programmes or activities of
RSS or BJP. So much so, no documentary evidence was placed on record to show
the trend of voting or distribution of votes between the contesting candidates
belonging to different political parties or independent candidates during
previous elections of either assembly, parliament or panchayat elections. No
other witness for the respondent spoke about the possible distribution of so
called wasted votes. Having regard to the evidence and in the absence of
positive and cogent evidence lead on behalf of the respondent it is not
possible to hold that how many out of the votes secured by Nikka Ram could have
gone to the respondent so as to say that the result of the election was
materially affected so far as it concerned the returned candidate. Looking to
the above evidence it cannot be said that in this constituency all along BJP
was leading and that the contest was only between two parties or that it was a
strong hold of BJP. There were in all five candidates in the field. Damodar,
candidate sponsored by Himachal Vikas Congress secured 9182 votes and Sohan Lal,
Janata Dal 328 votes. It is also not possible to say with reasonable certainty
or guess that all the votes secured by Nikka Ram or more than 759 votes could
have gone in favour of the respondent if Nikka Ram was not in the field that
too in the absence of any material to show the trend or probable distribution
of wasted votes. Further, there were two other candidates also in the field. In
this situation, how these 2287 votes of Nikka Ram could have been distributed
among the remaining four candidates cannot be judicially guessed.
The
statement of PW1 that all witnesses cited by him were active workers of BJP is
to be kept in mind while appreciating their evidence. PW4 is one Ranvir. He
stated that he was the President of the BJP of Mandi Sadar and he filled up
membership form of Nikka Ram for BJP. In the cross-examination, he has admitted
that Nikka Ram never applied for being enrolled as a member from Nachan Mandal;
he
applied for the membership from the Mandi constituency;
membership
was never given to him from Nachan constituency.
He
admitted that PW5, Ram Swarup, was the General Secretary of BJP of Mandi
district; PW6, Joginder Singh, was the active member of BJP from Nachan
constituency. He also stated that membership register of Nachan would be with
its President but the said register was not produced. The evidence of this
witness did not help the respondent to establish that Nikka Ram was member of
BJP or he was associated with RSS or he was active worker of RSS or BJP.
PW5
stated that Nikka Ram was one of the activists of the BJP. He was aspiring for
BJP ticket from Nachan constituency. In his cross-examination, he stated that
they had the list of the members of the BJP and that the name of Nikka Ram
appeared therein but he could not produce that record. He further stated that
names of members were received from Mandals and then the list was prepared; the
name of Nikka Ram was received from Mandi Mandal. Those records were not
produced. He, however, further stated that the membership of the BJP had not
been conferred upon Nikka Ram. PW6, is Joginder Singh, proposer of the
respondent in the election. He filed objection to the nomination paper of Nikka
Ram. In his evidence he stated that he was an active participant in the RSS and
Nikka Ram was associated with the activities of the RSS and BJP. The Returning
Officer directed him to produce evidence that Nikka Ram was in the active
service. He could not produce evidence as the time given was too short. In the
cross-examination, he has stated that resignation was given by Nikka Ram in the
year 1995. He had no personal knowledge as to whether the resignation was
accepted or not. He did not make any written request to the Returning Officer
to grant more time to place the record. PW7, Nand Lal, was the President of the
Gram Panchayat Bara, from 1990 to 1995. He stated that he was associated with
the BJP; Nikka Ram used to come and meet with a request to vote for BJP; when
he was unable to get the BJP ticket, he told he was the worker of BJP,
therefore, the votes should be given to him; Nikka Ram claimed himself as the
man of Shri Atal Bihari Vajpayee on the ground that he belonged to that party.
In the cross-examination, he admitted that he had no proof of the fact that
Nikka Ram was an active member of the BJP. PW8, Uma Dutt, stated that he became
a member of the BJP after his retirement. Nikka Ram was Junior Engineer in his
Circle. He had known and seen Nikka Ram as an active member of the BJP. In his
cross-examination he said that he helped the respondent in the election. He was
not aware as to which Pradhan of Gram Panchayats belonged to which party and
for which party they worked. He was also not aware who worked for the BJP or
for the Congress or for the independent candidate. His evidence is of no help
to the respondent. PW9, Prem Chaudhary, stated that he knew the appellant and
Nikka Ram; Nikka Ram belonged to RSS; he received a greeting card; he also
belonged to RSS; during election, Nikka Ram was soliciting votes as being
member of BJP. In the cross-examination, he stated that he received the card in
March 1997. He had not seen any record of membership of Nikka Ram. He stated
that Nikka Ram attended training camp of the RSS with him but did not remember
the date nor the month nor the year. He further stated that he helped Nikka Ram
during the election, as he was one among them. The last witness PW10 examined
in support of the election petition was Dhameswar Dutt, Pradhan of Gram Panchayat,
Jhungi since 1993. He stated that a meeting was held in the Panchayat. In that
meeting, Nikka Ram said that he belonged to BJP and was follower of Shri Atal Bihari
Vajpayee. He further stated that the speech made by Nikka Ram did not have any
impact on the members of the Panchayat.
He
denied that he was the active member of the BJP, although PW1 himself had
stated that all his witnesses belonged to BJP. From this evidence, it cannot be
said that the burden of proof placed on the respondent (election petitioner)
was discharged. By this evidence, it was not established that Nikka Ram was
either a member or activist of RSS and / or BJP. There was also no evidence to
establish that he applied for BJP ticket and the same was denied to him.
Similarly,
there was no evidence to establish that he campaigned in the election that he
belonged to BJP; he would join BJP in case he was elected and that he was
supporter of Shri Atal Bihari Vajpayee. Further there was nothing to establish
that voters of BJP and Nikka Ram were common. On the other hand wife of Nikka
Ram contested an election as an independent candidate and defeated both BJP and
Congress candidates. Having regard to the trend of voting in the previous
elections, as brought out in the cross-examination of PW1 and in the absence of
any evidence as to the distribution of wasted votes, it cannot be said that
votes polled in favour of Nikka Ram would have gone in favour of the respondent
if his nomination paper had not been accepted. This being the position, it is
not possible to hold that the result of the election in so far it concerned the
returned candidate was materially affected.
Unfortunately,
the High Court has recorded a finding otherwise. The High Court has found fault
with the appellant saying that there was no rebuttal evidence as against the so
called positive and cogent evidence led on behalf of the respondent (election
petitioner), even when the respondent failed to establish his case by
discharging burden of proof placed on him. Even otherwise the rebuttal evidence
is very much there as contained in evidence of RWs 1-13.
RW1,
K.D. Lakhanpal, the Returning Officer, in his evidence has stated that Nikka
Ram was an independent candidate. One Joginder Singh (PW6) raised objection to
the nomination paper of Nikka Ram. At 12.15 PM on 5.2.1998, time was given to Joginder
Singh to prove his objection upto 3.00 PM that Nikka Ram was in Government
service. He failed to prove his objection by 3.00 PM. The Returning Officer
waited for him upto 6.25 PM; even then he did not produce any proof and no
extension of time was sought for on behalf of the objector beyond 6.25 PM. On
the basis of the record available, he accepted the nomination paper of Nikka
Ram by rejecting the objection of Joginder Singh on the ground of lack of
proof. In the cross-examination, he denied the suggestion that time sought for
to furnish proof by Joginder Singh was denied. The appellant was examined as
RW-2. In his evidence, while rebutting the case of the respondent and
supporting his defence, he has clearly denied the suggestions in the
cross-examination to the contrary. RW2 in his evidence has further stated that
Nikka Ram contested the election as an independent candidate. He and Nikka Ram
belong to same Panchayat. Nikka Rams wife Raj Kumari was the Pradhan of said
Gram Panchayat. She defeated both BJP and Congress candidates in the election
of Pradhan of Gram Panchayat. The BJP candidate had polled 250 votes whereas
she had polled 750 votes. In the Zila Parishad election, she had polled
approximately 3,700 votes while the BJP candidate had polled 1200 votes. Out of
40 Gram Panchayats, 30-32 have Congress elected Pradhans. During election,
Nikka Ram had been canvassing for vote as an independent candidate and did not
appeal in the name of any political party. It was denied that Nikka Ram was
active worker of RSS. It was also denied that because of the propaganda of
Nikka Ram, the votes of BJP supporters which would have been in the normal
course polled in favour of the respondent instead went in favour of Nikka Ram.
He also denied the suggestion that in case nomination paper of Nikka Ram had
not been accepted, the respondent would have been successful in the election.
The appellant also denied that he had put up Nikka Ram as a candidate for the
said election by financing him so as to cut into the votes of Dile Ram (the
respondent). The High Court did not accept his evidence on the ground that in
cross-examination, certain suggestions were made although they were denied and
that RW-2 did not raise any objection to the nomination paper of Nikka Ram.
RW-3, Raju,
in his evidence has stated that Nikka Ram had appointed him as polling agent at
Chachyot polling station and he had accompanied Nikka Ram for canvassing votes
in his favour and he heard Nikka Ram saying to the voters that they all had
seen what Dile Ram had done and also what Tek Chand had done and they should
vote him as he is an educated person. He further stated that he had not
canvassed for votes on the ground of being an active member of any political
party nor he had asked for votes in the name of any political party. His
evidence was sought to be discredited on the ground that he reached Shimla in
jeep belonging to the appellant in order to give evidence in court and he had
stayed previous night with the appellant in MLA hostel. Assuming, the witness
was interested but did not support the case of the election petitioner in any
way on whom the burden of proof was heavy to establish his case.
RW4, Hemraj,
stated that he was a worker of Nikka Ram as well as his polling agent at Khanet-II
polling station.
According
to him, Nikka Ram asked for votes holding out a promise that he would get minor
work done such as repair of roads etc. He did not say that he would join any
political party in case he was elected and that he did not canvass for or seek
votes in the name of any political party. Nothing was said as to why his
evidence was discarded. The evidence of RW5, Kamla Devi, is also to the same
effect and she stated that during election campaign in her presence Nikka Ram
had not announced himself to be a worker of BJP nor did he say that his leader
was Shri Atal Bihari Vajpayee. RW6, Charandas has deposed that Nikka Ram had
asked for their votes by saying that he was a person from the same constituency
and that he would give better account if elected and that he had not canvassed
for votes in the name of BJP nor he had stated that in case of being elected,
he would join that party. RW7, Dhanram Das and RW8, Dayal Singh, have also
stated that Nikka Ram did not ask for votes in the name of BJP and he had also
not canvassed saying that he would join BJP in case he is elected. The High
Court has commented on the evidence of RW8 saying that he had not been able to
tell the date of Nikka Rams visit to his village nor the names of the persons
who accompanied him on that occasion. Nothing more is said as to why the evidence
of these witnesses should not be accepted. The evidence of RWs 9-13 are also
more or less to the same effect. No good reasons are given by the High Court
for not accepting their evidence. The learned trial Judge in the judgment has
stated that the respondent pleaded his case in the election petition in a
positive and forthright manner and also has led positive and reliable evidence.
Placing strong reliance on Chhedi Ram vs. Jhilmit Ram and Others [(1984) 2 SCC
281], concluded that by improper acceptance of the nomination paper of Nikka
Ram who was disqualified from contesting the election on the relevant date and
the number of votes polled by him, namely 2287 which would be in the nature of
wasted votes, the substantial majority of the said wasted votes would have been
polled by the respondent, had Nikka Ram not been in the electoral fray. In view
of this conclusion, the learned trial Judge held that the result of the
election insofar it concerned the appellant has been materially affected to the
detriment of the respondent who would have been otherwise the successful
candidate. The argument advanced on behalf of the appellant that in case
nomination paper of Nikka Ram had been rejected, it was not necessary that all
votes polled by him would have gone only to the respondent and not to the other
candidates when there were two other candidates in the field and one of them
namely Damodar of Himachal Vikas Congress had polled 9182 votes, was lightly
brushed aside saying that there was no merit in that argument inasmuch as the
respondent had led positive and cogent evidence to show that Nikka Ram cut
deeply into the votes of the respondent by contesting election as a parallel
BJP candidate. We are unable to agree with the statement of the High Court that
the respondent led positive and cogent evidence to show that Nikka Ram cut
deeply into the votes of the respondent by contesting the election as a
parallel BJP candidate as it is not supported by cogent and acceptable
evidence. On behalf of the appellant, it was also urged before the High Court
that in order to succeed on the ground that the result of the election had been
materially affected in so far as it concerned the returned candidate by the
improper acceptance of the nomination paper of Nikka Ram, the respondent had to
establish by positive evidence that the wasted votes polled, would have been
otherwise polled in favour of the respondent. In support of this contention,
the case of Vashit Narain Sharma vs. Dev Chandra and others [(1995) 1 SCR 509]
of this Court was cited. This contention was rejected saying that in the
present case the petitioner has adduced satisfactory and positive evidence to
show that the wasted votes polled by Nikka Ram would in substantial majority
have been polled otherwise by the petitioner. So the question of finding being
speculative or conjectural does not arise on the facts of this case. Here
again, the High Court was not correct in the light of the evidence brought on
record.
In Vashit
Narain Sharma vs. Dev Chandra and others [1955 (1) SCR 509], a three Judge
Bench of this Court has expressed the view that whether the result of the
election has been materially affected should not be judged by the mere increase
or decrease in the total number of votes secured by the returned candidate but
by proof of the fact that the wasted votes would have been distributed in such
a manner between the contesting candidates, which would have brought about the
defeat of the returned candidate and burden of proof in this regard lies upon
the petitioner, who questions the validity of the election and that the
election of a returned candidate cannot be set aside on mere possibility or
conjecture as to the distribution of wasted votes.
This
Court in Samant N. Balakrishna etc. vs. George Fernandez and others etc. [1969
(3) SCR 603] has referred to and followed Vashit Narain case (supra). In para 2
at page 644 of that judgment it is stated, thus: - In our opinion the matter
cannot be considered on possibility.
Vashist
Narains case insists on proof. If the margin of votes were small something
might be made of the points mentioned by Mr. Jethmalani. But the margin is
large and the number of votes earned by the remaining candidates also
sufficiently huge. There is no room, therefore, for a reasonable judicial guess.
The law requires proof. How far that proof should go or what it should contain
is not provided by the Legislature. In Vashists case and in Inayatullah v. Diwanchand
Mahajan (15 ELR 210) the provision was held to prescribe an impossible burden.
The law has however remained as before. We are bound by the rulings of this
Court and must say that the burden has not been successfully discharged. We
cannot overlook the rulings of this Court and follow the English ruling cited
to us.
[emphasis
supplied] This Court in Shiv Charan Singh vs. Chandra Bhan Singh [(1988) 2 SCC
12], after referring to Vashit Narain case (supra) and Chhedi Ram vs. Jhilmit
Ram [(1984) 2 SCC 281], dealing with an election petition filed on the ground
under Section 100(1)(d)(i) itself, has clearly stated that the burden of strict
proof is on election petitioner; it is not permissible to act on conjectures
and surmises; mere fact that number of votes polled by a candidate, whose
nomination was improperly accepted, was greater than the margin of votes polled
by the returned candidate and the candidate securing the next highest number of
votes not by itself was conclusive proof of the material effect on the election
of the returned candidate. Paras 10 and 11 of the judgment read thus: -
10. In
the instant case Shiv Charan Singh the appellant had polled 21,443 votes and Roshan
Lal had polled 16,946 the next highest number of votes. There was thus a
difference of 4497 votes between the votes polled by the appellant and Roshan Lal.
Kanyaiya Lal whose nomination paper had improperly been accepted, had secured
17,841 votes which were wasted. The election petitioners did not produce any
evidence to discharge the burden that improper acceptance of the nomination
paper of Kanhaiya Lal materially affected the result of the election of the
returned candidate. On the other hand the appellant who was the returned
candidate produced 21 candidates representing cross-section of the voters of
the constituency. All these witnesses had stated before the High court that in
the absence of Kanhaiya Lal in the election contest, the majority of the voters
who had voted for Kanhaiya Lal would have voted for Shiv Charan Singh the
appellant. The High Court in our opinion rightly rejected the oral testimony of
the witnesses in view of this courts decision in Vashist Narain Sharma case.
The High Court however having regard to the votes polled by the appellant Roshan
Lal and Kanhaiya Lal held that the result of the election was materially
affected. The High Court held that in view of the fact that difference between Shiv
Charan Singh the appellant and Roshan Lal was only 4497 and Kanhaiya Lal, whose
nomination was improperly accepted had secured 17,841 votes therefore it could
reasonably be concluded that the election was materially affected. In our
opinion the High Court committed error declaring the appellants election void
on speculations and conjectures.
11.
Indisputably, the election petitioners had failed to discharge the burden of
proving the fact that the result of election of the appellant had been
materially affected by reason of improper acceptance of the nomination paper of
Kanhaiya Lal. In the absence of any positive evidence produced by the election
petitioners, it was not open to the High Court to record findings that the
result of the election was materially affected. The High Courts findings
relating to the material affect on the result of the election are based on
conjectures and surmises and not on any evidence. The legislature has, as noted
earlier, placed a difficult burden on the election petitioner to prove that the
result of the election was materially affected by reason of improper acceptance
of nomination paper of a candidate (other than the returned candidate) and if
such burden is not discharged the election of the returned candidate must be
allowed to stand as held by this court in Vashist Narain Sharma and in Paokai Haokip
[(1969) 1 SCR 637] case. It is true that the burden placed on the election
petitioner in such circumstances is almost impossible to discharge. But in
spite of the fact that this Court had highlighted this question on more than
one occasion, Parliament has not amended the relevant provisions although the
Act has been subjected to several amendments. It is manifest that law laid down
by this Court in Vashist Narain Sharma case and Paokai Haokip case holds the
field and it is not permissible to set aside the election of a returned
candidate under Section 100(1)(d) on mere surmises and conjectures. If the
improperly nominated candidate had not been in the election contest, it is
difficult to comprehend or predicate with any amount of reasonable certainty
the manner and the proportion in which the voters who exercised their choice in
favour of the improperly nominated candidate would have exercised their votes.
The courts are ill-equipped to speculate as to how the voters could have
exercised their right of vote in the absence of improperly nominated candidate.
Any speculation made by the court in this respect would be arbitrary and contrary
to the democratic principles. It is a matter of common knowledge that electors
exercise their right of vote on various unpredictable considerations. Many
times electors cast their vote on consideration of friendship, party
affiliation, local affiliation, caste, religion, personal relationship and many
other imponderable considerations. Casting of votes by electors depends upon
several factors and it is not possible to forecast or guess as to how and in
what manner the voters would have exercised their choice in the absence of the
improperly nominated candidate. No inference on the basis of circumstances can
successfully be drawn. While in a suit or proceedings it may be possible for
the court to draw inferences or proceed on probabilities with regard to the
conduct of parties to the suit or proceedings, it is not possible to proceed on
probabilities or draw inferences regarding the conduct of thousands of voters,
who may have voted for the improperly nominated candidate. In the instant case
there were 11 contesting candidates. If Kanhaiya Lal whose nomination paper had
been improperly accepted was not in the election contest, it is difficult to
say in what proportion the voters who had voted for him would have voted for
the remaining candidates. There is possibility that many voters who had gone to
the polling station to cast their votes in favour of Kanhaiya Lal may not have
gone to exercise their vote in favour of the remaining candidates. It is
probable that in the absence of Kanhaiya Lal in the election contest, many
voters would have voted for the returned candidate as he appeared to be the
most popular candidate. It is difficult to comprehend that the majority of the
voters who exercised their choice in favour of Kanhaiya Lal would have voted
for the next candidate Roshan Lal. It is not possible to forecast how many and
in what proportion the votes would have gone to one of the other remaining
candidates and in what manner the wasted votes would have been distributed
among the remaining contesting candidates. In this view, the result of the
returned candidate could not be declared void on the basis of surmises and
conjectures.
[Emphasis
supplied] Further in our country as the things stand, all voters do not belong
to or are affiliated to one or the other political party. Large majority of
them may be neutral or independent or not committed. In this case, Nikka Ram
contested the election as an independent candidate, obviously, on a symbol
other than those allotted to recognized political parties. Hence it cannot be
said that all 2287 votes secured by Nikka Ram were from common vote bank of
BJP. May be, many out of those voters did not belong to any political party.
In para
12 of the same judgment it is clearly stated that decision of this court in Chhedi
Rams case did not overrule earlier decisions in Vashit Narain Sharma and Paokai
Haokip cases and added that Chhedi Rams case did not lay down any different law
and that decision turned upon its own facts. In Chhedi Rams case the difference
between successful candidate and the candidate who had secured the next highest
number of votes was 373 only. While the candidate whose nomination paper found
to have been improperly accepted had polled 6710 votes, i.e., almost 20 times
of the difference of number of votes secured by the successful candidate and
the candidate securing the next highest number of votes. In that situation
result of the election was held to have been materially affected.
In Chhedi
Ram vs. Jhilmit Ram and others [(1984) 2 SCC 281], it is held that the burden
of establishing that the result of election has been materially affected due to
the improper acceptance of nomination is on the person impeaching the election.
If, having regard to the facts and circumstances of a case the reasonable
probability is all one way, the burden may be said to have been discharged and
a court must not lay down an impossible standard of proof and hold a fact as
not proved. It is added that question must depend on the facts, circumstances
and reasonable probabilities of the case, particularly, when votes secured by a
candidate, whose nomination was improperly accepted, was disproportionately
large as compared with the difference between the votes secured by the returned
candidate and the candidate securing the next highest number of votes. In the
case we are dealing with the facts and circumstances are entirely different.
The reasonable probability is not all one way in favour of respondent. On the
other hand there is no cogent and reliable evidence to probablise the case of
the respondent.
A
three Judges Bench of this Court in J. Chandrasekhara Rao vs. V. Jagapathi Rao
and others [(1993) Supp. 2 SCC 229], after referring to other decisions of this
Court including Chhedi Rams case (supra) has held that Chhedi Rams case did not
overrule the earlier decisions and that Chhedi Rams case rested on its own
facts. It is further expressed that a decision in the election petition can be
given only on the positive and affirmative evidence and not merely on
speculation and suspicion, however, strong they may be. Para 18 of the said judgment reads: -
18.
Thus it can be seen from all the aforesaid decisions of this Court that it is
for the election petitioner to prove by positive and reliable evidence that
either improper acceptance of the nomination of the candidate or on account of
the non-compliance with the provisions of the Constitution or the Act, Rules or
orders etc. that the wasted votes would have been distributed in such a manner
among the remaining candidates that any candidate other than the returned
candidate would have polled the highest number of valuable votes. Such a burden
of proof maybe difficult, say impossible, but the courts cannot set aside the
election of the returned candidate on surmises and conjectures unless established
by positive evidence that the election of the returned candidate has been
materially affected.
[emphasis
supplied] In spite of this Court explaining the position clearly, as above, in
relation to Chhedi Rams case in two subsequent decisions of three Judges Bench
in Shiv Charan Singh and Chandrasekhara Rao cases (supra), strangely the High
Court misread Chhedi Rams case and preferred to support its view from that case
as against aforementioned decisions and other decisions of this Court. We may
repeat that in the aforementioned decisions it is clearly stated that the Chhedi
Rams case was decided on its own facts.
In Uma
Bhallav Rath (Smt.) vs. Maheshwar Mohanty (Smt.) and others [(1999) 3 SCC 357],
this Court has taken a view that election of a returned candidate cannot be set
aside on presumptions, surmises or conjectures. There must be clear and cogent
proof in support of the allegations. Applying the principles stated and law
laid down by this Court in the aforementioned decisions and in the facts and
circumstances of the case having regard to the evidence placed on record we
have no hesitation in reaching the conclusion that the High Court committed a
manifest error in concluding that the result of the election of the appellant
had been materially affected on account of improper acceptance of the
nomination paper of Nikka Ram.
No
doubt, in appeal court will be slow in disturbing a finding of fact recorded by
the trial court based on proper appreciation of evidence but it is also the
duty of the appellate court to disturb it if the burden of proof is not
discharged by cogent, positive and acceptable evidence in the light of law laid
down by this Court. More so when there is non consideration of material
evidence and appreciation of evidence is not objective and one sided.
In a
democratic set up, an election of a returned candidate should not be easily
vulnerable to vague allegations or to averments made in an election petition
not substantiated or supported by positive, cogent and reliable evidence. The
verdict given by the majority of voters in a constituency in favour of an
elected candidate to represent a constituency in a State Legislative Assembly
or Parliament cannot be lightly annulled or negatived in the absence of
specific, acceptable and convincing evidence in support of the grounds raised
in an election petition. Being the Court of first appeal when the finding
recorded by the High Court in this case is not based on proper appreciation and
objective assessment of evidence brought on record, as discussed above, we have
no impediment in reversing the finding recorded by the High Court.
Thus
viewed from any angle and even assuming that nomination paper of Nikka Ram was
improperly accepted we hold that the election of the appellant-the returned
candidate in so far it concerned him had not been materially affected. The
point No. 2 is answered accordingly.
In
view of our finding recorded on point no. 2, we could have disposed of this
appeal without any further discussion on point No. 1. Since the learned counsel
on both sides took pains in elaborately arguing on this point as well, we will
examine and consider the same for completion.
Answer
to this question depends on whether Nikka Ram was in Government service on the
date of filing and scrutiny of his nomination paper. Nikka Ram gave an
application for voluntary retirement on 5.12.1994 to the Superintending
Engineer, Irrigation and Public Health, Circle Rampur, District Shimla, Himachal
Pradesh. In that application he has stated that he had completed 20 years of
service and sought voluntary retirement with all benefits of service.
The
said application mentioned also of three months notice with a request that he
may be retired with effect from 28.2.1995. According to the respondent, as
pleaded in para 4 of the election petition, the said application made for
voluntary retirement had not so far been accepted by the Government and Nikka
Ram still continued in Government service. Copy of the letter dated 26.3.1998
issued by the Superintending Engineer certifying that voluntary retirement
application of Nikka Ram had not been accepted, was filed alongwith the
election petition. Exbt. PW3/1 is said to be the Office Order of the IPH Deptt.
dated 18.12.1996; it says that an inquiry under Rule 14 of the Central Civil
Service (Classification, Control and Appeal) Rules, 1965 is being held against
Nikka Ram and the Inquiry Authority to inquire into the charges framed was
appointed. Of course, the nature and contents of the charges were not
indicated.
Exbt.
PW3/2 is a letter dated 29.12.1994 from the Superintending Engineer, IPH,
Circle Rampur, addressed to the Executive Engineer. In the letter it is stated
that Nikka Ram had sought voluntary retirement from Government service with
effect from 28.2.1995 by giving three months notice. Further the Executive
Engineer was requested to examine the case properly as required under the Rule
and send No Demand Certificate as well as Vigilance Clearance Certificate alongwith
specific comments to take further action. It is further indicated that if not
the detailed position be intimated to this office immediately, the VVC may be
obtained personally from the E-In-C, IPH Department, Shimla, as well as from
the C.N. Dharmshala immediately.
Copies
were sent to other authorities to take immediate action. Exbt. PW3/1 is another
letter dated 2.4.1998 from the Superintending Engineer addressed to Nikka Ram
at his home address stating that his voluntary retirement as sought could not
be accepted for the reason that total length of his service was 19 years 10
months and 6 days which was less than 20 years. One more letter Exbt. PW3/2
dated 26.3.1998 from the Superintending Engineer was addressed to the
respondent in reply to his letter dated 25.3.1998 informing that issue of
voluntary retirement of Nikka Ram had not been finalized due to some
departmental formalities and his request for voluntary retirement had not been
accepted till date. In response to the application dated 6.8.1998 of the
respondent, Exbt. PW3/3 dated 7.8.1998 was issued giving various details of the
departmental formalities and hurdles indicating that his voluntary retirement
could not be accepted.
It is
not disputed that the appointing authority did not refuse to grant the
permission for retirement before expiry of the period specified in the said
application dated 5.12.1994 given by Nikka Ram. Further, no communication
whatsoever was made to him within the said period. During the course of the
argument before the High Court, the learned counsel for the parties referred to
Rule 48-A of the Rules, of course, placing their own interpretation. Since the
said Rule is material and has bearing on the question to be determined, it is
extracted below:- 48-A. Retirement on completion of 20 years qualifying
service.
(1) At
any time after a Government servant has completed twenty years qualifying
service, he may, by giving notice of not less than three months in writing to
the appointing authority, retire from service.
Provided
that this sub-rule shall not apply to a Government servant, including scientist
or technical expert who is
(i) on
assignments under the Indian Technical and Economic Co- operation (ITEC) Programme
of the Ministry of External Affairs and other aid programmes.
(ii)
Posted abroad in foreign based offices of the Ministries / Departments.
(iii)
On a specific contract assignment to a foreign Government, unless, after having
been transferred to India, he has resumed the charge of the
post in India and served for a period of not less
than one year.
(2)
The notice of voluntary retirement given under sub-rule (1) shall require
acceptance by the appointing authority;
Provided
that where the appointing authority does not refuse to grant the permission for
retirement before the expiry of the period specified in the said notice, the
retirement shall become effective from the date of expiry of the said period. ..........................................
Under
sub-rule (1) of the said Rule, at any time after completion of 20 years
qualifying service, a Government servant could give notice of not less than
three months in writing to the appointing authority for retirement from
service. Under sub-rule (2), voluntary retirement given under sub-rule (1)
shall require acceptance by the appointing authority. In the proviso to
sub-rule (2) of Rule 48-A, it is clearly stated that in case the appointing
authority does not refuse to grant the permission for retirement before the
expiry of the period specified in the said notice, the retirement shall become
effective from the date of expiry of the said period.
It is
clear from sub-rule (2) of the Rule that the appointing authority is required
to accept the notice of voluntary retirement given under sub-rule (1). It is
open to the appointing authority to refuse also on whatever grounds available
to it but such refusal has to be before the expiry of the period specified in
the notice. The proviso to sub-rule (2) is clear and certain in its terms.
If the
appointing authority does not refuse to grant the permission for retirement
before the expiry of the period specified in the said notice, the retirement
sought for becomes effective from the date of expiry of the said period. In
this case, admittedly, the appointing authority did not refuse to grant the
permission for retirement to Nikka Ram before the expiry of the period
specified in the notice dated 5.12.1994. The learned senior counsel for the
respondent argued that the acceptance of voluntary retirement by appointing
authority in all cases is mandatory. In the absence of such express acceptance
the Government servant continues to be in service. In support of this
submission, he drew our attention to Rule 56(k) of Fundamental Rules. He also
submitted that acceptance may be on a later date, that is, even after the
expiry of the period specified in the notice and the retirement could be
effective from the date specified in the notice. Since the proviso to sub- rule
(2) of Rule 48-A is clear in itself and the said Rule 48-A is self-contained,
in our opinion, it is unnecessary to look to other provisions, more so in the
light of law laid down by this Court. An argument that acceptance can be even
long after the date of the expiry of the period specified in the notice and
that the voluntary retirement may become effective from the date specified in
the notice, will lead to anomalous situation. Take a case, if an application
for voluntary retirement is accepted few years later from the date specified in
the notice and voluntary retirement becomes operative from the date of expiry
of the notice period itself, what would be the position or status of such a
Government Servant during the period from the date of expiry of the notice
period upto the date of acceptance of the voluntary retirement by the
appointing authority? One either continues in service or does not continue in
service. It cannot be both that the voluntary retirement could be effective
from the date of expiry of the period mentioned in the notice and still a
Government servant could continue in service till the voluntary retirement is
accepted. The proviso to sub-rule (2) of Rule 48-A of the Rules does not admit
such situation.
This
Court in a recent judgment in the case of State of Haryana and others vs. S.K.Singhal [(1999)
4 SCC 293], after referring to few earlier decisions of this Court touching the
very point in controversy in para 13 of the judgment has held thus :-
13.
Thus, from the aforesaid three decisions it is clear that if the right to
voluntarily retire is conferred in absolute terms as in Dinesh Chandra Sangma
case by the relevant rules and there is no provision in the rules to withhold
permission in certain contingencies the voluntary retirement comes into effect
automatically on the expiry of the period specified in the notice. If, however,
as in B.J. Shelat case and as in Sayed Muzaffar Mir case the authority
concerned is empowered to withhold permission to retire if certain conditions
exist, viz, in case the employee is under suspension or in case a departmental
enquiry is pending or is contemplated, the mere pendency of the suspension or
departmental enquiry or its contemplation does not result in the notice for
voluntary retirement not coming into effect on the expiry of the period
specified. What is further needed is that the authority concerned must pass a
positive order withholding permission to retire and must also communicate the
same to the employee as stated in B.J. Shelat case and in Sayed Muzaffar Mir
case before the expiry of the notice period. Consequently, there is no
requirement of an order of acceptance of the notice to be communicated to the
employee nor can it be said that non-communication of acceptance should be
treated as amounting to withholding of permission.
In our
view, this judgment fully supports the contention urged on behalf of the
appellant in this regard.
In
this judgment, it is observed that there are three categories of rules relating
to seeking of voluntary retirement after notice. In first category, voluntary
retirement automatically comes into force on expiry of notice period. In second
category also, retirement comes into force unless an order is passed during
notice period withholding permission to retire and in third category voluntary
retirement does not come into force unless permission to this effect is granted
by the competent authority. In such a case, refusal of permission can be
communicated even after the expiry of the notice period. It all depends upon
the relevant rules. In the case decided, the relevant rule required acceptance
of notice by appointing authority and the proviso to the Rule further laid down
that retirement shall come into force automatically if appointing authority did
not refuse permission during the notice period. Refusal was not communicated to
the respondent during the notice period and the court held that voluntary retirement
came into force on expiry of the notice period and subsequent order conveyed to
him that he could not be deemed to have voluntary retired had no effect. The
present case is almost identical to the one decided by this Court in the
aforesaid decision.
This
Court in B.J. Shelat vs. State of Gujarat & Ors. [ (1978) 2 SCC 201 ] while
dealing with a case of voluntary retirement, referring to Bombay Civil Service
Rules, Rule 161(2)(ii) proviso and Rule 56(k) of the Fundamental Rules, in
similar situation, held that a positive action by the appointing authority was
required and it was open to the appointing authority to withhold permission
indicating the same and communicating its intention to the Government Servant
withholding permission for voluntary retirement and that no action can be taken
once the Government servant has effectively retired. Paras 9 and 10 of the said
judgment read thus :
9. Mr.
Patel next referred us to the meaning of the word withhold in Websters Third
New International Dictionary which is given as hold back and submitted that the
permission should be deemed to have been withheld if it is not communicated. We
are not able to read the meaning of the word withhold as indicating that in the
absence of a communication it must be understood as the permission having been
withheld.
10. It
will be useful to refer to the analogous provision in the Fundamental Rules
issued by the Government of India applicable to the Central Government
servants.
Fundamental
Rule 56(a) provides that except as otherwise provided in this Rule, every
Government servant shall retire from service on the afternoon of the last day
of the month in which he attains the age of fifty-eight years.
Fundamental
Rule 56(j) is similar to Rule 161(aa)(1) of the Bombay Civil Services Rules
conferring an absolute right on the appropriate authority to retire a
Government servant by giving not less than three months notice. Under
Fundamental Rule 56(k) the Government servant is entitled to retire from
service after he has attained the age of fifty-five years by giving notice of
not less than three months in writing to the appropriate authority on attaining
the age specified. But proviso (b) to sub-rule 56(k) states that it is open to
the appropriate authority to withhold permission to a Government servant under
suspension who seeks to retire under this clause. Thus under the Fundamental
Rules issued by the Government of India also the right of the Government
servant to retire is not an absolute right but is subject to the proviso where
under the appropriate authority may withhold permission to a Government servant
under suspension. On a consideration of Rule 161(2)(ii) and the proviso, we are
satisfied that it is incumbent on the Government to communicate to the
Government Servant its decision to withhold permission to retire on one of the
grounds specified in the proviso.
In
this decision effect of Rule 56(k) of Fundamental Rules is also considered
which answers the argument of the learned counsel for the respondent on this
aspect. It may also be noticed that under Rule 48-A in Government of Indias
decision giving instructions to regulate voluntary retirement it is stated,
Even where the notice of voluntary retirement given by a Government servant
requires acceptance by the appointing authority, the Government servant giving
notice may presume acceptance and the retirement shall be effective in terms of
the notice unless the competent authority issues an order to the contrary
before the expiry of the period of notice.
If we
accept the argument of the learned senior counsel for the respondent, even if
the refusal of voluntary retirement is not communicated within the period
specified in notice, the voluntary retirement cannot be effective unless it is
accepted by the appointing authority, no meaning and effect can be given to the
proviso to sub-rule (2) to Rule 48-A. It is cardinal rule of construction that
no word or provision should be considered redundant or superfluous in
interpreting the provisions of a statute or a rule.
The
High Court looking to the letters dated 29.12.1994, 18.12.1996, 2.4.1998,
26.3.1998 and 7.8.1998 came to the conclusion that Nikka Ram was in Government
service on the date of filing nomination paper. The High Court also observed
that there was glaring omission on the part of the appellant in not controverting
the pleadings and evidence of the respondent with regard to Nikka Ram being in
Government service at the relevant time and also relied on the oral evidence in
this regard to say that Nikka Ram was holding office of profit by being in
Government service on the date of filing nomination paper and as such his
nomination paper was wrongly accepted. It is not disputed, as already stated
above, that no communication was given to Nikka Ram before the expiry of the
period specified in the notice of voluntary retirement. Nikka Ram was not
examined.
Exbt.
PW3/2, letter dated 26.3.1998, Exbt. PW3/3, letter dated 2.4.1998 and Exbt.
PW3/3 letter dated 7.8.1998 were of dates subsequent to the date of filing of
nomination paper and even declaration of the result of the election on
2.3.1998. On the basis of the material available on record on the date of
scrutiny of nomination paper, there was nothing to show that Nikka Ram
continued in Government service in view of the admitted position that he had
submitted application for voluntary retirement by giving notice on 5.12.1994
and no refusal was communicated to him, refusing acceptance of voluntary
retirement before 28.2.1995. By virtue of Rule 48-A, as discussed above, the
voluntary retirement of Nikka Ram came into force and became effective from
28.2.1995. Neither Nikka Ram nor Government of Himachal Pradesh are parties to
this appeal before us.
In
this appeal we do not wish to deal with the status of Nikka Ram in relation to
Government service or the respective rights and contentions, if any, of Nikka
Ram and State Government in regard to his service and the consequences that may
follow. For the purpose of this appeal it is enough to say that on the date of
filing and scrutiny of nomination paper of Nikka Ram, he should be deemed to
have been voluntarily retired by operation of proviso to sub-rule (2) of Rule
48-A.
I.As.
2/2000 and 3/2000 are filed for impleadment of Nikka Ram and State of Himachal Pradesh and for modification of the order
dated 24.7.2000 respectively. Application for impleadment was made on the
ground that Nikka Ram and State of Himachal Pradesh were not made parties to the election petition. The
decision, one way or the other, on the point whether the said Nikka Ram ceased
to be a Government servant or continued to be in Government service may result
in serious consequences affecting the rights of Nikka Ram or the State
Government as the case may be. Since neither Nikka Ram nor the State of Himachal
Pradesh were necessary or proper parties to be impleaded in the election
petition, we do not think it appropriate to allow I.A. No. 2/2000.
Hence
it is rejected. We, however, wish to add that the order passed or observations
made in this appeal on the point of acceptance of the nomination paper of Nikka
Ram on the ground that he had ceased to be in Government service having regard
to the proviso to sub-rule (2) of Rule 48-A on the available material on the
date of his nomination and scrutiny, will be without prejudice to the rights
and contentions either of Nikka Ram or the State Government in relation to
service of Nikka Ram. No order is necessary in I.A. 3/2000.
In the
result, for the reasons stated above, this appeal merits acceptance. Hence, it
is allowed. The judgment and order of the High Court impugned in this appeal
are set aside and the election petition stands dismissed.
Parties
to bear their own costs.
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