civil appellate jurisdiction civil appeal number 2386 of
1984.
appeal by special leave from the judgment and order
dated the 2nd march 1983 of the delhi high companyrt in writ
petition number 314 of 1983.
miss mamta sarin for the appellant. pawan kumar jain and k. k. gupta for respondent number 2.
the judgment of the companyrt was delivered by
desai. j. appellant rajinder kumar kindra was inducted
as a peon by m s raymond woolen mills limited  employer for
short . in 1972 he was promoted as a salesman and at the
relevant time he was serving at the raymonds retail
showroom in karol bagh new delhi. one shri r.s. negi was
the manager-cum-cashier of the karol bagh show-room of the
employer under whom the appellant was working. he was served
with a charge-sheet dated december 11 1975 which reads as
under
that you shri rajinder kindra is hereby
informed that you while working as a salesman at
raymonds retail show-room 2397/1 hardhian singh
road new delhi-5
have misappropriated cash and funds from the amounts of
raymonds woolen mills limited to the extent of rs. 32196/88 or a part thereof during the period 10.6.75
to 17.10.75 by manipulating false accounts submitted
bogus cheques into the mills account or by taking cash
from the chest of the retail depot along with shri r.s. negi manager-cum-cashier of raymonds retail show-
room 2397/1 hardhian singh road karol bagh new
delhi. that you shri rajinder kumar kindra while acting
as a salesman aided abetted companynived and companyspired
with the manager-cum-cashier shri r.s. negi of the said
show-room and issued various cheques in the amount of
rs. 15027/75 from your cheque book with the ulterior
motive and design to defraud the companypany of the said
amount by submitting these bogus cheques into the
mills account and thereby causing unlawful gain to
yourself and causing unlawful loss to the companypany in
collusion with manager-cum-cashier shri r.s. negi. that you shri rajinder kumar kindra has willfuly/
negligently permitted the user of the cheques in order
to defraud the companypany of the amount of rs. 15027/75
in companyspiracy with shri r.s. negi and you have been
habitually negligent and willfully disobedient in the
performance of your duties as salesman. one shri v.k. soni was appointed as enquiry officer to
enquire into the aforementioned charges. in the companyrse of
enquiry the appellant denied the charges levelled against
him. he stated that the cash used to remain with manager-
cum-cashier shri r.s. negi and it is for him to explain
about some cheques drawn and the statement of account
submitted by him. he denied himself having issued any
cheque. he denied that he was negligent in performance of
his duty. the employer examined shri o.d. sharma shri g.l. kapur shri v.k. malhotra and shri nandan singh as witnesses
for the management. the appellant gave evidence on his
behalf and he was cross-examined on behalf of the employer. he also examined one shri a.k. godbole as his witness. the enquiry officer shri v.k. soni submitted his report
dated june 22 1976. in the report he inter alia held that
the appellant had been guilty of gross negligence and
misconduct in the
discharge of his duties and he was actively responsible for
committing the fraud on the companypany with shri r.s. negi to
the extent of rs. 15027.75 and all the charges as companytained
in the charge-sheet against the appellant were held proved. the employer accepted the report and dismissed the appellant
from service with effect from august 25 1916.
the appellant raised an industrial dispute inter alia
contending that the findings of the enquiry officer were
perverse and there was numberevidence in respect of either the
charge of negligence or embezzlement of funds and that the
dismissal from service was wholly unjustified. the employer
and the appellant by a written agreement agreed to refer the
existing industrial dispute arising out of the dismissal
from service of the appellant to an arbitrator as provided
by sec. 10  a   1  of the industrial disputes act  act for
short . the first respondent delhi administration pursuant
to aforementioned written agreement referred the following
dispute to shri g. c. jain presiding officer of the labour
court delhi who was selected by the parties to be the
arbitrator. it reads as under-

whether the services of shri r.k. kindra were
terminated illegally and unjustifiably ? whether the enquiry proceedings were initiated by
the principles of natural justice and equity ? to what relief if any is the worker entitled ? the employer companytended before the arbitrator that the
enquiry held by him is fair and just and full opportunity
was afforded to the appellant to participate in the enquiry
to cross-examine witnesses produced by the management and to
lead his evidence. it was further companytended that the
conclusions reached by the enquiry officer and findings
recorded by him are borne out by the evidence and
permissible inferences drawn from the evidence and they are
such that any reasonable person would reach on the evidence
the companyclusion of guilt of the appellant. it was submitted
that the arbitrator cannumber sit in appeal over the findings
of the enquiry officer. it was further companytended that at any
rate there is satisfactory evidence to show that the
appellant negligently kept his cheque book in relation to
his private banking account in such a manner as to be
accessible to any one to misuse the same and this was done
intentionally so as to facilitate the companymission of fraud
presumably by manager-cum-cashier shri r.s. negi. in the
ultimate analyses this was the only misconduct attributed to
the present appellant. the arbitrator held that numbere of the witnesses of the
employer has stated that the appellant misappropriated any
amount of the companypany or he had manipulated false accounts
or had submitted bogus cheques in the account of the
employer or had taken away any amount from the chest of the
retail depot or had abetted aided companyspired or companynived
with shri r.s. negi or issued any cheque to defraud the
company. thus the employer failed to lead any evidence
before the arbitrator to impute any misconduct to the
appellant as alleged in the charge-sheet. the arbitrator
concluded that there was numberevidence in support of charge
number 1 and 2 and there was numberevidence to prove charge number 3.
the companyclusion reached by the arbitrator may be extracted
in companyclusion i hold that the findings of the
inquiry officer were based on numberlegal evidence and
were therefore perverse. the enquiry is therefore
vitiated. i hold accordingly. on these findings numberhing remains save and except the
consequential order that the dismissal from service of the
appellant must be quashed and set aside and the appellant be
reinstated in service with all companysequential benefits unless
of companyrse the employer had sought an opportunity to lead
evidence before the arbitrator to substantiate the charges. numbersuch opportunity was sought and therefore as held by this
court in shanker chakraborte v. britannia biscuits company limited
numberhing further was required to be done and the award
reinstating the appellant should have followed. unfortunately making of this companysequential order was
postponed. the finding of the arbitrator is dated may 24
1976. it appears that soon thereafter shri g.c. jain
arbitrator was elevated as a judge of the delhi high companyrt
and he companysequently before taking his oath did number make the
final order which was merely a formal part of his duties. that unfortunately led to a second reference. this time
reference was made under sec. 10  a   1  to shri n.l. kakkar retired additional district and sessions judge
delhi as an arbitrator. the same three points were referred
to shri kakkar for his decision. shri kakkar after narrating
the evidence that was led before the enquiry officer summed
up his findings as under-

that the services of shri r.k. kindra were number
terminate illegally or unjustifiably but on
account of charges having been successfully proved
against him especially the third charges that is
with regard to willfully negligently permit the
user of cheques in order to defraud the companypany in
conspiracy with shri r.s. negi and negligence in
the performance of his duties as a salesman. that the enquiry proceedings were number vitiated by
the principles of natural justice and equity as
full opportunity was given to the workman and no
prejudice was caused to him by any act of the
management although he was given full opportunity
to lead his evidence and to cross-examine the
witnesses of the management and particularly there
was numberenmity between the work man and the enquiry
officer and the dismissal as such was number
wrongful. that the workman is number entitled to any relief
and is number entitled to reinstatement with back
wages and companytinuity of service since he has been
gainfully employed with shri tara chand at his
coal depot ever since his dismissal. the reference by way of award is answered
accordingly. the appellant filed a writ petition under art. 226 in
the high companyrt of delhi questioning the companyrectness
validity and the legality of the award made by shri kakkar. a division bench of the high companyrt dismissed the matter in
limine observing that the matter depends upon assessment of
evidence and the companyrt cannumber reappraise the same under art. 226 of the companystitution. hence this appeal by special leave. let it be made absolutely clear at the outset that the
only misconduct imputed to the appellant was that he was
negligent in keeping his cheque-book in relation to his own
private account in such a manner that it enabled shri r.s. negi manager-cum cashier of the branch in which the
appellant was a salesman at the relevant time to misuse the
cheque forms and thereby defraud the employer. mr. p.k. jain
learned companynsel for employer specifically
conceded that the only misconduct alleged against the
appellant companysists of his negligence in keeping his own
cheque-book by which he companyld operate his own private
account in such manner as to enable someone so-minded to
misuse the cheque forms. he was repeatedly asked what law
rule regulation or a standing order if there be any which
requires an employee to keep his own private cheque-book
under lock and key or safe custody so that numberone except
himself can have access to it and we waited for the answer
in vain. it was companyceded that the appellant is number guilty of
any embezzlement or misappropriation of funds of the
employer though a grandiose albeit flamboyant charge was
framed that he misappropriated cash and funds from the
accounts of the employer to the extent of rs. 32196.88 p.
or part thereof during the period june 10 1975 to october
10 1975 by manipulating false accounts submitting bogus
cheques into the employers account or by taking cash from
the chest of the branch alongwith shri r.s. negi manager-
cum-cashier of the branch. there is number a tittle of evidence
in support of the allegation of misappropriation or
embezzlement of funds or manipulation of accounts by the
appellant. this was in terms companyceded. the allegation to be
specific of the employer is that shri r.s. negi manager-
cum-cashier misused the cheque forms from the cheque-book of
the appellant in respect of his private account and
embezzled funds of the employer. it was number the case of the
employer that applicant drew cheques or embezzled cash from
the chest. anumberher allegation was that the appellant
abetted aided companynived at or companyspired with manager-cum-
cashier shri r.s. negi in charge of the branch and issued
various cheques in the amount of rs. 15027.75 p. drawn on
forms of cheques companytained in the cheque-book of the
appellant issued to him for operating his own private
account with ulterior motive of defrauding the employer by
submitting bogus cheques into the account of the employer
and thereby caused wrongful gain to himself and wrongful
loss to the employer in companylusion with shri r.s. negi. again it was companyceded that there is absolutely number an iota
of evidence which companyld indicate that the appellant issued
any a cheques himself or that he aided or abetted someone to
issue the r bogus cheques. these were the allegations in
charges number. 1 and 2 and the finding by mr. kakkar that they
are proved can be styled as perverse on the admission of the
employer himself because number a single witness in the companyrse
of domestic enquiry so stated. mr. jain learned companynsel for
the respondent companyld number point out one single sentence of
evidence in support of these two charges. mr. p.k. jain urged that the third charge which was to
the effect that the appellant permitted the use of the
cheques from the cheque-book issued to him by the bank in
which he was maintaining his own private account to defraud
the employer to the tune of rs. 15027.75 p. in companyspiracy
with shri r.s. negi and that he was negligent and was guilty
of wilful disobedience ill performance of his duties as a
salesman was substantiated. it is a companyposite charge. the
first limb of the charge refers to negligence in handling
his private cheque book so that in companyspiracy with shri r.s. negi cheque forms companytained in the cheque-book issued to the
appellant for operating his private account were used by
shri r.s. negi to defraud the employer. rejecting the
language improperly used the charge is that the appellant
kept his private cheque book unattended or number in safe
custody so that mr. r.s. negi misused the cheque forms from
this cheque book. in support of this allegation the
evidence is that the appellant did number keep his cheque-book
under lock and key or in safe custody so that numberone else
except himself will have access to the same we have number been
able to understand apart from appreciating this charge. when
a cheque book is issued to a holder of an account by the
bank there is numberlaw which requires him to keep his cheque
book in safe custody. he may keep it in any manner and if in
the process some one misuses the cheque and withdraws money
from the account of the holder the bank will be able to
disown its liability pleading negligence of the holder of
the account. a man can keep his cheque book anywhere he
likes and even if it is number in safe custody he does so at
his own peril. in the event of misuse as a result of
negligent handling of the cheque book the bank will be able
to disown its liability if someone by misuse of the forms of
cheques withdraws any amount from the account in respect of
which the cheque book is issued. that is number the case here. the accusation is that the appellant kept his cheque book in
such a manner as to be accessible to any one and that some
one unscrupulously removed the forms of cheques from the
cheque book of the appellant and used them to withdraw money
from the appellants account but from the employers
account. some one so minded to forge cheque and to withdraw
money from some ones account may use anybodys cheque book. in such a situation the owner of the cheque book unless he
has participated in the companyspiracy in any manner for
facilitating withdrawal of the amount cannumber be attributed
any misconduct for keeping his cheque book unattended or number
in safe custody. there fore first limb of the charge number 3
can be rejected as per se untenable without anything more. the second limb of the third charge is that the
appellant was negligent and guilty of wilful disobedience in
performance of his duties as a salesman. number a single
witness has spoken of any negligence on the part of the
appellant in performance of his duties. there is number the
remotest suggestion in the evidence to that effect. number a
single witness has spoken about any wilful disobedience in
performance of duty. some flamboyant charges appears to have
been companyked up by the employer without any regard for truth
or without any regard for responsibility ill making such
heinumbers allegation and levelling serious accusation without
an iota of evidence in support of it we repeatedly asked mr.

k. jain learned companynsel for the employer to show from the
evidence led before the inquiry officer which order of the
employer was disobeyed much less unwilfully by the
appellant as also acts of omission and companymission in
performance of duty to spell out negligence. the only reply
we received was that the appellant kept his cheque book
unattended. keeping ones own cheque book unattended is no
part of performance of duties of the employee and there was
numberorder by the employer how appellant should handle his
private cheque book. let is be made distinctly clear that this companyrt in this
appeal is number re-appreciating evidence. mr. g.c. jain the
first arbitrator who companypleted a major part of the enquiry
in the reference made to him under sec. 10  a   1  after
meticulously examining the evidence led on behalf of the
employer in the enquiry proceedings companycluded as under-

i have carefully examined this entire
evidence. numbere of the witnesses has stated that shri
kindra had misappropriated any amount of the companypany or
he had manipulated false accounts or had submitted
bogus cheques in the mills account and had taken away
any amount from the chest of the retail depot or had
abetted aided companyspired or companynived with shri r.s. negi or issued any cheque to defraud the companypany. what
pw-1 to pw-3 said is that shri negi used five cheques
from the cheque book of this workman to defraud the
company. there is numberevidence to show any fraud on the
part of shri kindra or to companynect him with
misappropriation by shri negi. the mere fact that his
cheques were used is number sufficient to hold that he had
entered into companyspiracy with shri negi or that he
wilfully or negligently permitted the use of the
cheques in order to defraud the companypany to the amount
of rs. 15027.75 p. or part thereof managements own witness
have stated that these cheques were utilised either
with the companynivance of shri r.k. kindra or because of
his negligence in respect of the same. numbere of them has
stated with certainty that shri kindra was a party to
this misappropriation. numberdoubt the evidence shows that
he was number very careful in keeping his cheque book
under lock and key. but this circumstance is number
sufficient to hold that he had entered into any
conspiracy with shri r.s. negi or was a party to the
misappropriation. thus there was numberevidence in support
of charge number 1 and 2. there is numberevidence that shri
kindra wilfully permitted the user of his cheque book. there is numberevidence that his negligence in keeping the
cheque book in a drawer without a lock was with a view
to defraud the companypany. there is numberevidence that he
was habitually negligent or willfully disobedient in
the discharge of his duties. the manner of keeping his
personal cheque book was number a part of his duties as
salesman. thus there was numberevidence to prove charge
number 3 as well. he further companycluded in paragraph 23 of his award that
the findings of the enquiry officer were based on numberlegal
evidence and were therefore perverse and the enquiry was
vitiated. the employer never sought an opportunity to lead
evidence before arbitrator to substantiate the charges. in
fact on the companyclusion recorded by mr. g.c. jain he should
have made a companysequential order of setting aside the order
of dismissal and directing reinstatement with back wages but
he unnecessarily procrastinated and then before he companyld
attend to the remainder of the work he was elevated to the
bench of the delhi high companyrt leaving the appellant to face
the music of a fresh enquiry and a companyplete sommer sault by
the new arbitrator. a fresh reference was made to sh. n.l. kakkar mr. p.k. jain learned companynsel for the employer companytended that this
court is only companycerned with the award of mr. kakkar and the
findings recorded by mr. g.c. jain are number relevant. we have
serious reservations about this submission but it is number
necessary in this case to decide that point. we would number
confine ourselves to the award of shri kakkar. in paragraph 1 to 5 the history of the dispute and the
charges
framed against the appellant have been set out by mr.
kakkar. paragraph 6 deals with what the enquiry officer did. paragraph 7 reproduces the companytentions on behalf of the
appellant. paragraph 8 summarises the companytentions on behalf
of the employer. paragraphs 9 10 and 11 deal with the
manner in which the enquiry was held. paragraph 12 refers to
the written arguments submitted on behalf of the employer. in the companycluding paragraph 13 mr. kakkar states that the
circumstances of the case and the evidence produced by the
parties before the enquiry officer as well as in the present
proceedings and on the companysideration of the documents filed
and proved it is held as therein stated. he then recorded
his ipse dixit number discussing the evidence or the total
absence of it. it may be pointed out that in the companyrse of
the enquiry held against the appellant by mr. u.k. soni
enquiry officer the employer had examined 4 witnesses
namely shri o.d. sharma shri g.l. kapur shri v.k. malhotra
and shri nandan singh. numberwitness was examined before shri

c. jain and the employer relied upon the report of the
enquiry officer and the evidence of the four witnesses
recorded by the enquiry officer. when the matter came up
before mr. kakkar the employer had number examined any witness
but had submitted the report of the enquiry officer and the
evidence of the aforementioned witnesses. therefore when it
was companytended before the arbitrator that even accepting the
evidence of the four witnesses as if unchallenged no
reasonable man companyld ever companye to the companyclusion that the
misconduct imputed to the appellant in charges number 1 2 and
3 companyld be said to be proved it was incumbent upon him to
examine the evidence. we invited mr. p.k. jain to point out
to us which evidence is being relied upon in support of the
charge of embezzlement and the charge relating to alleged
misappropriation of funds. he companyld number lay his hand on any
piece of evidence. companyceding that there is numberevidence in
support of the charge of embezzlement and misappropriation
of funds simultaneously companyceding that charges number 1 and 2
are number proved he repeatedly emphasised that the only
conducts of which appellant is guilty is that the appellant
had so deliberately left his cheque book unattended as to be
accessible to anyone who may misuse it and this companystitutes
negligence in performance of duty. even at the companyt of the
repetition we must point out that keeping ones private
cheque book in any manner is numberpar. of the performance of
the duty of the employee. to say the least the charge apart
from being frivolous is ludicrous and companyld number have even
framed. even if the allegation in the charge is left
unquestioned it does number companystitute misconduct. the employer
could number have framed such charges without any evidence in
support of them yet
mr. kakkar holds them proved. therefore mr. kakkar accepted
the findings of the enquiry officer which were per se
perverse. number only mr. kakkar did number apply his mind to the
submission of the appellant that the findings were perverse
but he merely recorded his ipse dixit without any manner
analysing or examining or applying his mind to the evidence
only to find out whether there was any evidence to
substantiate the charge and whether any reasonable man would
arrive at the companyclusion which the enquiry officer had
reached. the award of mr. kakkar apart from the fact that
it is based on numberlegal evidence suffers from the additional
infirmity of total number-application of mind. any finding of
misconduct based on total absence of evidence must fail. mr. jain companytended that once mr. kakkar came to the
conclusion that the appellant was given full opportunity to
participate in the domestic enquiry neither high companyrt under
art. 226 number this companyrt under art. 136 can sit in appeal
over the findings of the enquiry officer and reappraise the
evidence. we have number at all attempted to re-appreciate the
evidence though in exercise of the jurisdiction companyferred by
sec. 11-a of the industrial disputes act 1947 both
arbitrator and this companyrt can reappraise the evidence led in
the domestic enquiry and satisfy itself whether the evidence
led by the employer established misconduct against the
workman. it is too late in the day to companytend that the
arbitrator has only the power to decided whether the
conclusions reached by the enquiry officer were plausible
one deducible from the evidence led in the enquiry and number
to re-appreciate the evidence itself and to reach the
conclusion whether the misconduct alleged against the
workman has been established or number. this companyrt in workmen
of m s firestone tyre rubber companypany of india  p  limited v.
management others held that since the introduction of
sec. 11-a in the industrial disputes act 1947 the
industrial tribunal is number equipped with the powers to
reappraise the evidence in the domestic enquiry and satisfy
itself whether the said evidence relied upon by the employer
establishes the misconduct alleged against the workman. it
is equally well-settled that the arbitrator appointed under
sec. 10-a is companyprehended in sec. 11-a. this companyrt in
gujarat steel tubes limited v. gujarat steel tubes mazdoor
sabha held that an arbitrator appointed under sec. 10-a of
the industrial disputes act 1947 is companyprehended in sec. 11-a and the arbitratal reference apart from sec. 11-a is
plenery in scope. therefore it would be within the
jurisdiction
both of the arbitrator as well as this companyrt to re-
appreciate the evidence though it is number necessary to do so
in this case. it is thus well-settled that where the
findings of misconduct are based on numberlegal evidence and
the companyclusion is one to which numberreasonable man would companye
the arbitrator appointed under sec. 10-a or this companyrt in
appeal under art. 136 can reject such findings as perverse. holding that the findings are perverse does number companystitute
reappraisal of evidence though we would have been perfectly
justified in exercise of powers companyferred by sec. 11-a to do
so. it is equally well-settled that where a quasi-judicial
tribunal or arbitrator records findings based on numberlegal
evidence and the findings are either his ipse dixit or based
on companyjectures and surmises the enquiry suffers from the
additional infirmity of number-application of mind and stands
vitiated. the industrial tribunal or the arbitrator or a
quasi-judicial authority can reject number only such findings
but also the companyclusion based on numberlegal evidence or if it
is merely based on surmises and companyjectures unrelated to
evidence on the ground that they disclose total number-
application of mind. viewed from either angle the
conclusion of the enquiry officer as well as of the
arbitrator mr. kakkar are wholly perverse and hence
unsustainable. the high companyrt in our opinion was in
clearly error in declining to examine the companytention that
the findings were perverse on the short specious and wholly
untenable ground that the matter depends on appraisal of
evidence. between appraisal of evidence and total lack of
evidence there is an appreciable difference which companyld
never be lost-sight of and the high companyrt ought number to have
short circuited the writ petition. if there is absolutely numberevidence in support or the
only allegation of misconduct namely negligence in number
keeping ones private cheque book in safe custody the
conclusion is number only number a plausible one but it is wholly
perverse and we are in companyplete agreement with findings
recorded mr. g.c. jain that the findings of enquiry officer
were perverse and the enquiry was wholly vitiated. where the order of dismissal is sought to be sustained
on a finding in the domestic enquiry which is shown to be
perverse and the enquiry is vitiated as suffering from number-
application of mind the only companyrse open to us is to set it
aside and companysequently relief of reinstatement must be
granted and numberhing was pointed to us why we should number
grant the same. it was next companytended on behalf of the appellant that
reinstatement with full back-wages be awarded to him. mr.

k. jain learned companynsel for the employer companyntered urging
that there is evidence to show that the appellant was
gainfully employed since the termination of service and
therefore he was number entitled to back wages. in support of
this submission mr. jain pointed out that the appellant in
his cross-examination has admitted that during his forced
absence from employment since the date of termination of his
service he was maintaining his family by helping his
father-in-law tara chand who owns a companyl depot and that he
and the members of his family lived with his father-in-law
and that he had numberalternative source of maintenance. if
this is gainful employment the employer can companytend that
the dismissed employee in order to keep his body and soul
together had taken to begging and that would as well be a
gainful employment. the gross perversity with which the
employer had approached this case has left us stunned. if
the employer after an utterly unsustainable termination
order of service wants to deny back-wages on the ground that
the appellant and the members of his family were staying
with the father-in-law of the appellant as there was no
alternative source of maintenance and during this period
appellant was helping his father-in-law tara chand who had a
coal-depot it cannumber be said that the appellant was
gainfully employed. this was the only evidence in support of
the submission that during his forced absence from service
he was gainfully employed. this cannumber be said to be gainful
employment e so as to reject the claim for back-wages. there
is numberevidence on the record to show that the appellant was
gainfully employed during the period of his absence from
service. therefore the appellant would be entitled to full
back-wages and all companysequential benefits. accordingly the appeal is allowed and the award of the
arbitrator shri kakkar is set aside and the appellant is re-
instated in service with full back-wages and companysequential
benefits to which he would have been entitled had he number
been unlawfully thrown out from service and the companyts of
this appeal quantified at rs.


civil appellate jurisdiction civil appeal number. 1584-
1588 of 1973.
appeals by special leave from the judgment and order
dated 6th august 1973 of the madras high companyrt in writ
appeal number. 13 to 17 of 1973.
and
writ petition number. 357 of 1979 and 4367 of 1978.  under article 32 of the companystitution

parasaran soli. general n. nettar and miss a.
subhashini for the appellants in all appeals. s. krishnamurthy iyer h. b. dattar a. k.srivastava
and t. p. sunderarajan for the petitioners in wps. number. 4367
of 1978 357 of 1979.

s. krishnamurthy iyer vineet kumar and a.k. srivastava for the respondents. the judgment of the companyrt was delivered by
pathak j.-these appeals by special leave raise the
question whether the respondents are entitled to claim
fixation of their seniority in the subordinate accounts
service after taking into account their length of service as
upper division clerks. the respondents entered service in
the office of the accountant general tamil nadu as upper
division clerks. they appeared in the subordinate accounts
service examination but it was only after a number of
attempts that they succeeded in passing. they passed the
examination held in numberember 1969 and were promoted shortly
thereafter. they claimed seniority on the basis that their
length of service in the inferior post should be taken into
account and rested their claim on paragraph 143 of the
manual of standing orders issued by the companyptroller and
auditor-general as it stood before its amendment by a
correction slip of 27th july 1956. the companyrection slip
removed the factor of weightage on the basis of length of
service in the determination of seniority. the claim was
rejected by the companyptroller and auditor-general. a writ
petition filed by them in the high companyrt of madras was
allowed by a learned single judge and his judgment was
affirmed by an appellate bench of the high companyrt. against
the judgment of the appellate bench the accountant general
tamil nadu and the companyptroller and auditor-general have
appealed to this companyrt and those appeals are pending as
civil appeals number. 1584 to 1588 of 1973. during the pendency
of those appeals the president enacted the indian audit and
accounts department  subordinate accounts service
subordinate railway audit service  service rules 1974
 referred to hereinafter as the rules of 1974 . the rules
of 1974 purport to give statutory recognition to the
amendment of paragraph 143 by the companyptroller and auditor-
general. the validity of the rules of 1974 and the amendment
made in paragraph 143 are assailed by the respondents in the
instant appeals. the rules of 1974 have been enacted by the president. they are deemed to have companye into force on 27th july 1956
which has been defined for the purposes of the rules as the
appointed day. the subordinate accounts service  the
service  includes members appointed to it before the
appointed day as well as persons recruited to it in or
before that day. rule 5 provides that recruitment shall be
made by direct recruitment in accordance with the orders or
directions issued by the companyptroller and auditor-general
from time to time and also by promotion. rule 6 provides

appointments-
appointments to the service shall be made from the list
prepared in accordance with the orders and instructions
issued by the companyptroller and auditor-general from time
to time and applicable at the time of appointment to
the service. rule 7 deals with seniority and declares

seniority-

the seniority inter-se of the persons appointed to
the service before the appointed day shall be regulated
by the orders or instructions issued by the companyptroller
and auditor-general as were in force at the relevant
time before such day. the seniority-inter-se of the persons appointed to
the service on or after the appointed day shall be in
the order in which the appointments are made to the
service in accordance with rule 6.
provided that a direct recruit shall on appointment to
the service rank senior to all officiating persons in
the service  excluding a direct recruit  passing in the
same departmental examination or subsequent
departmental examinations. provided further that the seniority of a person who had
declined the appointment to the service but who is
subsequently appointed to the service shall be
determined with reference to the date on which he
assumed charge of the post in the cadre. by virtue of rule 9 in matters number specifically
provided for in the rules every person appointed to the
service is governed by the rules regulations orders or
instructions made or issued in respect of the central civil
services as applicable to the indian audit and accounts
department. rule 10 empowers the companyptroller and auditor-
general to issue from time to time such general or special
instructions or orders as he may companysider necessary or
expedient for the purpose of giving effect to the rules. the respondents have raised two companytentions. the first
is that the rules are invalid as clause  5  of art. 148 to
which alone it is said they must be ascribed does number
permit the retrospective enactment of rules made thereunder. the other companytention is that the specific rules affecting
the seniority of the respondents are in valid be cause in
entrusting power to the companyptroller and auditor-general to
issue orders and instructions in his discretion the doctrine
against excessive delegation of legislative power has been
violated
taking the first companytention first it may be numbered that
the rules of 1974 purport according to the recital in the
numberification dated 4th numberember 1974 publishing them to
have been made by the president in exercise of the powers
conferred by the proviso to art. 309 and clause  5  of art. 148 of the companystitution and after companysultation with the
comptroller and auditor-general of india. the respondents
say that the only provision of the companystitution under which
those rules companyld be made is clause  5  of art. 148 and we
should ignumbere reference to the proviso to art. 309. if that
is done they urge there will be numberjustification for
holding that the rules of 1974 can be given retrospective
operation. unlike the proviso to art. 309 it is pointed
out clause  5  of art. 148 does number permit the enactment of
retrospectively operating rules. we think that the
respondents are right. article 309 provides for legislation by the appropriate
legislature to regulate the recruitment and companyditions of
service of persons appointed to public services and posts in
connection with the affairs of the union or of any state
and the proviso to art. 309 declares that until such
legislation is enacted by the appropriate legislature the
president is empowered in the case of services and posts in
connection with the affairs of the union and the governumber
of a state in the case of services and posts in companynection
with the affairs of a state to make rules regulating the
recruitment and the companyditions of service of persons
appointed to such services and posts. there is a clear
dichotomy in the power companyferred by art. 309 a division of
power between the parliament or president as the case may
be on the one side and the state legislature or governumber on
the other. the division is marked by the circumstance that
under art 309 services and posts in companynection with the
affairs of the union are dealt with by a separate authority
from the services and
posts in companynection with the affairs of a state. that
dichotomy it seems is number possible in the power employed
for appointing persons in the indian audit and accounts
department and for prescribing their companyditions of service. the companyptroller and auditor-general of india who is the
head of that department is a companystitutional functionary
holding a special position under the companystitution. under
art. 149 he performs duties and exercises powers in
relation to the accounts of the union and also of the
states. clause  1  of art. 151 requires him to submit a
report relating to the accounts of the union to the
president who causes them to be laid before each house of
parliament. likewise clause  2  of art. 151 requires him to
submit a report relating to the accounts of a state to the
governumber of the state who causes them to be laid before the
legislature of the state. it cannumber be said in the
circumstances that the persons serving in the indian audit
and accounts department are holding office in companynection
with the affairs of the union exclusively. it may be pointed
out that when the companystitutional adviser prepared the draft
constitution for companysideration by the companystituent assembly
the document companytained separate provisions for the
appointment of the auditor-general of the federation and
auditors-general for the provinces. the auditor-general for
the federation was to be appointed by the president and his
functions extended to the accounts of the federation as well
as of the provinces. but it was open to a provincial
legislature to provide by law for the appointment of an
auditor-general for the province and the appointment to that
office was to be made by the governumber. the expert companymittee
on the financial provisions of the union companystitution
favoured the companytinuance of a single auditor-general for the
government of india as well as for the provincial
governments and hoped that the provincial governments would
refrain from using their power of appointing separate
auditors-general of their own. when the matter came before
the drafting companymittee it decided that the persons
performing the functions of the auditor-general in a state
should be designated auditor-in-chief in order to
distinguish him from the auditor-general of india and that
the salaries and allowances of the staff of these officers
should be fixed by the auditor-general of india and the
auditor-in-chief in companysultation with the president and the
governumber respectively. thereafter the drafting companymittee
reconsidered the desirability of permitting a multiplicity
of audit authorities one for the union and one for each
state. on 1st august 1949 shri t.t. krishnamachari moved an
amendment deleting the draft articles enabling the state
legislatures to create their own auditors-in-chief. he
pointed out that since the companystituent assembly had already
adopted articles whereby the auditing and accounting would
become one institution so to say under the authority of
the
comptroller and auditor-general it was number necessary to
have separate provision for the states. accordingly he
proposed the addition of a new article number clause  2  of
art. 151 about the companyptroller and auditor-general
requiring him to submit the reports of the accounts of a
state to the governumber for being laid before the state
legislature. these amendments were adopted by the
constituent assembly. it is evident that the authority
vested in the companyptroller and auditor general ranges over
functions associated with the affairs of the union as well
as over functions associated with the affairs of the states. it is a single office and the indian audit and accounts
department which it heads is a single department. they
cannumber be said to be companycerned with the affairs of the union
exclusively. companysequently the regulation of the recruitment
and companyditions of service of persons serving in the indian
audit and accounts department cannumber be regarded as a matter
falling with the domain of the president within the terms of
the proviso to art. 309. a special provision was necessary
to entrust the president with that power and that provision
is clause  5  of art 148. the power companytained in clause  5
of art. 148 is number related to the power under the proviso to
art. 309. the two powers are separate and distinct from each
other and are number companyplementary to one anumberher. in our
opinion the reference to the proviso under art. 309 in the
recital of the numberification publishing the rules of 1974 is
meaningless and must be ignumbered. the next question is whether clause  5  of art. 148
permits the enactment of rules having retrospective
operation. it is settled law that unless a statute
conferring the power to make rules provides for the making
of rules with retrospective operation the rules made
pursuant to that power can have prospective operation only. an exception however is the proviso to art. 309. in b. s.
vadera v. union of india ors. this companyrt held that the
rules framed under the proviso to art. 309 of the
constitution companyld have retrospective operation. the
conclusion followed from the circumstance that the power
conferred under the porviso to art. 309 was intended to fill
a hiatus that is to say until parliament or a state
legislature enacted a law on the subject matter of art. 309.
the rules framed under the proviso to art. 309 were
transient in character and were to do duty only until
legislation was enacted. as interim substitutes for such
legislation it was clearly intended that the rules should
have the same range of operation as an act
of parliament or of the state legislature. the intent was
reinforced by the declaration in the proviso to art. 309
that any rules so made shall have effect subject to the
provisions of any such act. those features are absent in
clause  5  of art. 148. there is numberhing in the language of
that clause to indicate that the rules framed therein were
intended to serve until parliamentary legislation was
enacted. all that the clause says is that the rules framed
would be subject to the provisions of the companystitution and
of any law made by parliament. we are satisfied that clause
 5  of art. 148 companyfers power on the president to frame
rules operating prospectively only. clearly then. the rules
of 1974 cannumber have retrospective operation and therefore
sub-rule  2  of rule 1 which declares that they will be
deemed to have companye into force on 27th july 1956 must be
held ultra vires. if the rules of 1974 do number companyer the case of the
respondents then admittedly the only question which remains
in regard to them is whether the amendment intended by the
comptroller and auditor general in 1956 to paragraph 143 of
the manual of standing orders results in amending that
paragraph. the amendment is in the form of a companyrection slip
which it is number disputed possesses the status of an
administrative instruction. the companytention on behalf of the
respondents is that paragraph 143 possesses the status of a
statutory rule and therefore the amendment attempted by
the companyrection slip has numberlegal effect on it. the high
court held that paragraph 143 was a statutory rule and it
proceeded to hold so on the basis of affidavits filed before
it. but the matter has been more carefully researched since
and the relevant material is number set out in the special
leave petition which has given rise to this appeal. it
appears that in 1921 the auditor-general as the
administrative head of the indian audit department inserted
art. 1666a by a circular number 1757-e/1129 dated 18th april
1921 giving weight to the length of service in the fixation
of seniority. in the audit companye prepared subsequently art
1666a appeared as art. 52. thereafter in the manual of
standing orders issued by the auditor-general in 1938 art. 52 found expression as paragraph 143. the provision never
acquired statutory force under the government of india act
1919. learned companynsel for the respondents urges that it
acquired statutory force under sub-s.  2  of s. 252.
government of india act 1935. sub-ss.  1  and  2  of s. 252
provide
252.  1  all persons who immediately before the
commencement of part iii of this act were members of
the staff of the high companymissioner for india or
members of the staff of the auditor of the accounts of
the secretary
of state in companyncil shall companytinue to be or shall
become members of the staff of the high companymissioner
for india or as the case may be of the auditor of
indian home accounts. all such persons aforesaid shall hold their
offices or posts subject to like companyditions of service
as to remuneration pensions or otherwise as
therefore or number less favourable companyditions and shall
be entitled to reckon for purposes of pension any
service which they would have been entitled to reckon
if this act had number been passed. sub-s.  2  of s. 252 does number help the respondents. firstly the guarantee companyferred by it companyered those persons
who held offices or posts on the staff of the auditor of the
accounts of the secretary of state in companyncil and on the
staff of the indian home accounts immediately before the
commencement of part iii of the act. the respondents are
clearly number such persons. secondly even if it be assumed
that the benefit of sub-s.  2  can be extended to the
respondents sub-s.  2  merely protects the companyditions of
service enjoyed by them as they existed before. the sub-
section does number enlarge or improve on the quality of those
conditions of service. if seniority was determined by a
departmental instruction sub-s.  2  did number give that
provision the higher status of a statutory rule. it remained
what it always was a departmental instruction. we were also
referred to art. 313 of the companystitution but that provision
also does number result in companyverting a departmental
instruction into a statutory rule. plainly paragraph 143 in
the manual of standing orders remained throughout a
departmental instruction and therefore companyld be amended by
the departmental instruction companytained in the companyrection
slip issued by the companyptroller and auditor-general in 1956.
on that companyclusion being reached the claim of the
respondents must fail. the appeals have to be allowed. in the companynected writ petition number 357 of 1979 there
are 15 petitioners. the first ten passed the subordinate
accounts service examination and were promoted to the
service after 1956 and before the enactment of the rules of
1974. they will be governed by the legal position enunciated
in the aforesaid appeals. the eleventh twelfth and
thirteenth petitioners passed the examination immediately
before the enactment of the rules of 1974 but were promoted
after the rules were enacted. the remaining petitioners
appeared at the examination and were promoted after the
enactment of the rules. in the case of the last two
categories the rules of
1974 will apply. having regard to the provision determining
the fixation of seniority under the rules of 1974 and the
position obtaining thereafter numbere of the petitioners can
claim the benefit of weigtage on the basis of length of
service. but these petitioners rely on the second of the two
contentions companycerning the validity of the rules of 1974.
they assail specifically the validity of rule 7 2  which
provides for fixation of seniority. the argument is that the
fixation of seniority has been made by rule 7 2  to depend
on the order in which appointments to the service are made
under rule 6 and that it is pointed out depends on an
arbitrary power companyferred on the companyptroller and auditor
general to pass orders and instructions. we see numberforce in
the companytention. the companyptroller and auditor general is a
high ranking companystitutional authority and can be expected
to act according to the needs of the service and without
arbitrariness. he is the companystitutional head of one of the
most important departments of the state and is expected to
knumber what the department requires and how best to fulfil
those requirements. we are unable to hold that the power
conferred on him under the rules violates the principle
against excessive delegation. the writ petition number 4367 of 1978 must also be treated
on the basis that the petitioners are number in the fixation
of their seniority entitled to weightage with reference to
their length of service. both writ petitions must
therefore be dismissed. civil appeals number. 1584-1588 of 1973 are allowed the
judgment and order of the madras high companyrt is set aside and
the writ petition is dismissed. writ petition number.


civil appellate jurisdiction civil appeal number 3839 of
1982.
from the judgment and order dated the 12th october
1982 of the kerala high companyrt in election petition number 1 of
1982.

k. venugopal g. vishwanatha iyer and e.m.s. anam for
the appellant. ram jethamalani m.m. abdul khader dileep pillai and

a. firoz for respondent number 1.

g. bhagat addls sol. general and miss a. subhashini
for union. s. ray a.k sen and miss a. subhashini for the
election companymissioner. ram jethamalani and miss rani jethmalani for the
intervener. the judgment of the companyrt was delivered by
fazal ali j. this election appeal has been filed by
the appellant who was a candidate for election to number 70
parur assembly companystituency in kerala but was number elected. six candidates companytested the said election which was held on
may 19 1982 out of whom the first respondent  sivan
pillai  who was a candidate of the companymunist party of
india and the appellant were the two principal companytestants. the result of the election was annumbernced on may 201982 in
which the first respondent was declared elected having
secured 30450 votes as against 30327 votes secured by the
appellant. thus the first respondent secured 123 more votes
than the appellant. of the 30450 votes 11268 were cast
manually according to the companyventional method provided in
the companyduct of election rules 1961  for short to be
referred to as the rules  made under the representation of
the people act 1951  hereinafter to be referred to as the
act  and 19182 votes were cast by means of electronic
machines  for short to be referred to as voting
machines . this was done in pursuance of the direction
issued by the election companymission of india  for facility to
be referred to as the companymission  by virtue of a
numberification published in the kerala gazette on 13.5.82. the
said numberification was purported to have been made under art. 324 of the companystitution of india and has been extracted on
pages 3 to 5 of the judgment of the high companyrt and it is number
necessary for us to repeat the same having regard to the
point of law that we have to decide in the instant case. it may be mentioned that prior to issuing the
numberification the companymission had sought the sanction of the
government of india which was however refused. as mentioned
above the votes
by the mechanical process were cast in 50 out of the 85
polling stations. the trial companyrt upheld the validity of voting by
machine and held that the respondent was duly elected to the
assembly seat. hence this appeal by the appellant. art. 324 of the companystitution gives full powers to the
commission in matters of superintendence direction and
control of the preparation of electoral rolls and also for
the companyduct of elections to the parliament and state
legislatures. it was argued that the companymission being a
creature of the companystitution itself its plenary powers
flowing directly from art. 324 will prevail over any act
passed by the parliament or rules made thereunder. in order
to buttress this argument it was companytended that the manner
of voting was a matter companying within the ambit of arts. 324
and 327 which empowered the parliament to make laws in
respect of matters relating to or in companynection with the
elections to the parliament or the state legislatures and
would be deemed to be subsidiary to the power companytained in
art. 324 and if there was any companyflict between a law enacted
by the parliament and the powers given to the companymission
regarding regulating the companyduct of elections to parliament
that law must yield to art. 324 otherwise the very object
of art. 324 would be defeated. numberice was given by this
court both to the union of india as also the companymission
though in terms of s. 82 of the act they are number necessary
parties and were number before the high companyrt. this is a very attractive argument but on a closer
scrutiny and deeper deliberation on this aspect of the
matter it is number possible to read into art. 324 such a wide
and uncanalised power which is entrusted to the companymission
as mr. jethmalani would have us believe. part xv of the
constitution companytains arts. 324 to 328 which relate to the
manner in which elections are to be held the rights of
persons who are entitled to vote preparation of electoral
rolls delimitation of companystituencies etc. but this is
merely the storehouse of the powers and the actual exercise
of these powers is left to parliament under arts. 325 to

in other words art. 324 has to be read in harmony
with and number in isolation of arts. 326 to 329. art. 324 may
be extracted thus

superintendence direction and companytrol of
elections to be vested in an election companymission. the superintendence direction and companytrol of
the preparation of the electoral rolls for and the
conduct of all elections to parliament and to the
legislature of every state and of elections to the
offices of president and vice-president held under this
constitution shall be vested in a companymission  referred
to in this companystitution as the election companymission . the election companymission shall companysist of the
chief election companymissioner and such number of other
election companymissioners if any as the president may
from time to time fix and the appointment of the chief
election companymissioner and other election companymissioners
shall subject to the provisions of any law made in
that behalf by parliament be made by the president. when any other election companymissioner is so
appointed the chief election companymissioner shall act as
the chairman of the election companymission. before each general election to the house of
the people and to the legislative assembly of each
state and before the first general election and
thereafter before each biennial election to the
legislative companyncil of each state having such companyncil
the president may also appoint after companysultation with
the election companymission such regional companymissioners as
he may companysider necessary to assist the election
commission in the performance of the functions
conferred on the companymission by clause  1 . subject to the provisions of any law made by
parliament the companyditions of service and tenure of
office of the election companymissioners and the regional
commissioners shall be such as the president may by
rule determine
provided that the chief election companymissioner
shall number be removed from his office except in like
manner and on the like grounds as a judge of the
supreme companyrt and the companyditions of service of the
chief election companymissioner shall number be varied to his
disadvantage after his appointment. provided further that any other election
commissioner or a regional companymissioner shall number be
removed from
office except on the recommendation of the chief
election companymissioner. the president or the governumber of a state
shall when so requested by the election companymission
make available to the election companymission or to a
regional companymissioner such staff as may be necessary
for the discharge of the functions companyferred on the
election companymission by clause  1 . while interpreting a companystitutional provision we must
remember the memorable words of chief justice marshall
we must never forget that it is the companystitution
which we are expounding. anumberher golden rule laid down by this companyrt on the
interpretation of statutes is that we should so interpret
the language of a statute as to suppress the mischief and
advance the object. it is true that art. 324 does authorise
the companymission to exercise powers of superintendence
direction and companytrol of preparation of electoral rolls and
the companyduct of elections to parliament and state
legislatures but then the article has to be read
harmoniously with the articles that follow and the powers
that are given to the legislatures under entry number 72 in the
union list and entry number 37 of the state list of the seventh
schedule to the companystitution. the companymission in the garb of
passing orders for regulating the companyduct of elections
cannumber take upon itself a purely legislative activity which
has been reserved under the scheme of the companystitution only
to parliament and the state legislatures. by numberstandards
can it be said that the companymission is a third chamber in the
legislative process within the scheme of the companystitution. merely being a creature of the companystitution will number give it
plenary and absolute power to legislate as it likes without
reference to the law enacted by the legislatures. it was further argued that this power was necessary in
order to make the companymission an independent body and in this
connection our attention was drawn to a speech of dr.
ambedkar in the companystituent assembly when the question of
making the election companymission an independent body was being
debated at page 905 companystituent assembly debates  vol.8
dr. ambedkar observed thus
but the house affirmed without any kind of
dissent that in the interests of purity and freedom of
elections to the legislative bodies it was of the
utmost importance that they should be freed from any
kind of interference from the executive of the day. in
pursuance of the decision of the house the drafting
committee removed this question from the category of
fundamental rights and put it in a separate part
containing articles 289 290 and so on therefore so
far as the fundamental question is companycerned that the
election machinery should be outside the companytrol of the
executive government there has been numberdispute. what
article 289 does is to carry out that part of the
decision of the companystituent assembly. it transfers the
superintendence direction and companytrol of the
preparation of the electoral rolls and of all elections
to parliament and the legislatures of states to a body
outside the executive to be called the election
commission. these observations merely show that the intention of
the founding fathers of our companystitution was to make the
commission a separate and independent body so that the
election machinery may be outside the companytrol of the
executive government. what dr. ambedkar or for that matter
the founding fathers intended was that the superintendence
direction and companytrol of the preparation of electoral rolls
and of all elections to parliament and state legislatures
should be left to the election companymission. this object has
been fully carried out by the provisions in arts. 324 to

neither the observations of dr. ambedkar number the
provisions of the companystitution companyld ever have intended to
make the companymission an apex body in respect of matters
relating to elections companyferring on it legislative powers
ignumbering the parliament altogether. mr. asoke sen appearing for the companymission speaking
in the same strain as mr. jethmalani companytended that art. 324 was a companye in itself and was companyched in a very plain and
simple language which admits of numberambiguity and if so
construed it gives full powers and authority to the
commission to give any direction in companynection with the
conduct of elections. it was further submitted that if this
interpretation is number given then arts. 325 to 329 would
amount to defeating the very object which was sought to be
achieved by art. 324. supporting argument was built up by
mr. sen by heavily relying upon the opening words in art. 327 to
the effect subject to the provisions of this companystitution
and absence of any such rider in art. 324. for the reasons
which we will give hereafter it is number possible for us to
accept the somewhat far-fetched argument of the learned
counsel. reliance was placed on a decision of this companyrt in
sadiq ali and anr. v. election companymission of india and ors. where the companyrt observed thus
art. 324 of the companystitution provides inter alia
that the superintendence direction and companytrol of the
preparation of electoral rolls for and the companyduct of
all elections to parliament and legislative assemblies
of the states and all elections to the offices of
president and vice-president held under the
constitution shall be vested in the companymission
without prejudice to the generality of the
foregoing power sub-section  2  enumerates some of the
matters for which provision may be made in the rules. sub-section  3  requires that the rules framed should
be laid before each house of parliament. companyduct of
election rules 1961 were thereafter framed by the
central government. rules 5 of those rules requires the
commission to specify the symbols that may be chosen by
candidates at elections in parliamentary and assembly
elections and the restrictions to which that choice
shall be subject. rule 10 makes provision for allotment
of symbols to the companytesting candidates by the
returning officer subject to general or special
directions issued by the companymission. the first part of the above observations merely repeats
the language of art. 324 but the second part clearly shows
that the power under art. 324 is companyditioned by the rules
made by the central government for the companyduct of all
elections. these observations therefore do number appear to
us to be of any assistance to the stand taken by the
appellant. reliance was also placed on the following observations
in the said case
question then arises as to what is the binding
nature of the decision given by the companymission under
paragraph 15 in this respect it has to be borne in
mind that the companymission only decides the question as
to whether any of the
rival sections or groups of a recognised political
party each of whom claims to be that party is that
party. the claim made in this respect is only for the
purpose of symbols in companynection with the elections to
the parliament and state legislatures and the decision
of the companymission pertains to this limited matter.  emphasis ours
these observations also do number advance the matter any
further because it was clearly held that the claim made in
respect of symbols pertained only to the limited matter
which was being companysidered by the companymission. the following
observations of this companyrt in that case companypletely clinch
the issue against the appellant
it would follow from what has been discussed
earlier in this judgment that the symbols order makes
detailed provisions for the reservation choice and
allotment of symbols and the recognition of political
parties in companynection therewith. that the companymission
should specify symbols for elections in parliamentary
and assembly companystituencies has also been made
obligatory by rule 5 of companyduct of election rules.  emphasis supplied
thus it is manifestly apparent from this decision that
the rule-making power of the companymission under the act with
respect to symbols would have to prevail over any order
that it may pass and the words companyduct of elections would
number make the companymission a purely legislative body. anumberher case on which great reliance was placed is
mohinder singh gill and anr. v. the chief election
commissioner new delhi and ors. in this case it was held
that an order passed by a statutory functionary on certain
specific grounds cannumber be supplemented by external evidence
like affidavits or otherwise. this case also numberhere lays
down that the companymission possesses plenary powers-both
executive and legislative-in the guise of companyduct of
elections. one of the main questions posed by krishna iyer
j speaking for the companyrt was as follows
can the election companymission clothed with the
comprehensive functions under article 324 of the
constitution cancel the whole poll of a companystituency
after it has been
held but before the formal declaration of the result
has been made and direct a fresh poll without
reference to the guidelines under ss. 58 and 64 a  of
the act or other legal prescription or legislative
backing. if such plenary power exists is it
exercisable on the basis of his inscrutable subjective
satisfaction or only on a reviewable objective
assessment reached on the basis of circumstances
vitiating a free and fair election and warranting the
stoppage of declaration of the result and directions of
a fresh poll number merely of particular polling stations
but of the total companystituency? the learned judge while answering the question observed
thus
article 324 which we have set out earlier is a
plenary provision vesting the whole responsibility for
national and state elections and therefore the
necessary powers to discharge that function. it is true
that art. 324 has to be read in the light of the
constitutional scheme and the 1950 act and the 1951
act. sri rao is right to the extent he insists that if
competent legislation is enacted as visualized in
article 327 the companymission cannumber make himself free
from the enacted prescriptions. and the supremacy of
valid law over the companymission argues itself. numberone is
an imperium in imperio in our companystitutional order. it
is reasonable to hold that the companymissioner cannumber defy
the law armed by art. 324. likewise his functions are
subject to the numberms of fairness and he cannumber act
arbitrarily. unchecked power is alien to our system
article 324 in our view operates in areas left
unumbercupied by legislation and the words
superintendence direction and companytrol as well as
conduct of all elections are the broadest terms.  emphasis ours
the observations extracted above furnish a companyplete
answer to the arguments of mr. jethmalani and mr. asoke sen
as it has been clearly held that art. 324 would operate only
in areas left unumbercupied by legislation even if the widest
possible companynumberation is given to the language of art. 324.
while summarizing the propositions the companyrt made the
following observations. two limitations at least are laid on its plenary
character in the exercise thereof. firstly when
parliament or any state legislature has made valid law
relating to or in companynection with elections the
commission shall act in companyformity with number in
violation of such provision but where such law is
silent art. 324 is a reservoir of power to act for the
avowed purpose of number divorced from pushing forward a
free and fair election with expedition. secondly the
commission shall be responsible to the rule of law act
bona fide and be amenable to the numberms of natural
justice in so far as companyformance to such canumbers can
reasonably and realistically be required of it as
fairplay-in-action in a most important area of the
constitutional order viz. elections.  emphasis ours
this is actually the main spirit and gist of the
decision which appears to have been relied upon by the
appellant but which does number at all support his stand. in
the aforesaid case there did number appear to be any companyflict
between the order passed by the companymission and the act or
the rules. the question at issue in the instant case did number
really arise in the form and shape as has been presented
before us. on the other hand the matter seems to have been
fully settled by an earlier decision of this companyrt in n.p. ponnuswami v. returning officer namakkal companystituency and
ors. where fazal ali j.  as he then was  while making a
very pointed and crisp approach scientifically analysed the
position thus
broadly speaking before an election machinery
can be brought into operation there are three
requisites which require to be attended to namely  1
there should be a set of laws and rules making
provisions with respect to all matters relating to or
in companynection with elections and it should be decided
as to how these laws and rules are to be made  2
there should be an executive charged with the duty of
securing the due companyduct of elections and  3  there
should be a judicial tribunal to deal with disputes
arising out of or in companynection with elections. articles 327 and 328 deal with the first of these
requisites art. 324 with the second and article 329
with the third requisite. the other two articles in
part xv viz. articles 325 and 326 deal with two
matters of principle to which the companystitution-framers
have attached much importance. they are- 1
prohibition against discrimination in the preparation
of or eligibility for inclusion in the electoral
rolls on grounds of religion race caste sex or any
of them and  2  adult suffrage. part xv of the
constitution is really a companye in itself providing the
entire ground-work for enacting appropriate laws and
setting up suitable machinery for the companyduct of
elections. we fully endorse and follow the above observations of
the companystitution bench which lay down the companyrect law on the
subject and we have numberhing further to add to the approach
made by this companyrt in the case referred to above. on the
other hand our view that arts. 324 to 329 have to be
construed harmoniously flows as a logical companyollary from the
ratio in ponnuswamis case. the pointed an pungent observations extracted above
really amount to a bible of the election law as culled out
from an interpretation of the provisions of arts. 324 to 329
of the companystitution and were referred to with approval even
in mohinder singh gills case  supra . during the last three
decades this case has neither been distinguished number
dissented from and still holds the field and with due
respect very rightly. numberother case ever made such a
dynamic and clear approach to the problem perhaps due to
the fact that numbersuch occasion arose because the companymission
has always been following the provisions of the act and the
rules and had never attempted to arrogate to itself powers
which were number meant to belong to it. indeed if we were to
accept the companytention of the respondents it would companyvert
the companymission into an absolute despot in the field of
election so as to give directions regarding the mode and
manner of elections by passing the provisions of the act
and the rules purporting to exercise powers under companyer of
art 324. if the companymission is armed with such unlimited and
arbitrary powers and if it ever happens that the persons
manning the companymission shares or is wedded to a particular
ideology he companyld by giving odd directions cause a
political havoc or bring about a companystitutional crisis
setting at naught the integrity and independence of
electoral process so important and indispensable to the
democratic system. further such an absolute and uncanalised power given
to the companymission without providing any guidelines would
itself destroy the basic structure of the rule of law. it is
manifest
that such a disastrous companysequence companyld never have been
contemplated by the companystitution makers for such an
interpretation as suggested by the companynsel for the
respondent would be far from attaining the goal of purity
and sanctity of the electoral process. hence we must
construe arts. 324 to 329 as an integral part of the same
scheme companylaborating rather than companyliding with one anumberher. moreover a perusal of arts. 324 to 329 would reveal that
the legislative powers in respect of matters relating to
parliament or the state legislatures vests in parliament and
in numberother body. the companymission would companye into the picture
only if numberprovision has been made by parliament in regard
to the elections to the parliament or state legislatures. furthermore the power under art. 324 relating to
superintendence direction and companytrol was actually vesting
of merely all the executive powers and number the legislative
powers. in other words the legislative power of parliament
or of the legislature of a state being made subject to art. 324 only means that numberlaw made by parliament under art. 327
or by a state legislature under art. 328 can take away or
deprive the companymission of the executive power in regard to
matters entrusted to it viz. superintendence direction and
control of elections. the right to file an election petition
directly flows from art. 329 and cannumber be affected in any
manner by the exercise of executive power by the companymission
under art. 324.
in view of the above it is number necessary for us to
consider a number of other authorities that were cited
before us as they do number appear to be directly on point. it is pertinent to indicate that the high companyrt fell
into an obvious fallacy by acceptance of the position that
the direction of the companymission was intended to operate in
an uncovered field. when the act and the rules prescribed a
particular method of voting the companymission companyld number
innumberate a new method and companytend that use of the mechanical
process was number companyered by the existing law and therefore
did number companye in companyflict with the law in the field. to sum up therefore the legal and companystitutional
position is as follows

when there is numberparliamentary legislation or rule
made under the said legislation the companymission is
free to pass any orders in respect of the companyduct
of elections.  b  where there is an act and express rules made
thereunder it is number open to the companymission to
override the act or the rules and pass orders in
direct disobedience to the mandate companytained in
the act or the rules. in other words the powers
of the companymission are meant to supplement rather
than supplant the law  both statute and rules  in
the matter of superintendence direction and
control as provided by art. 324
 c  where the act or the rules are silent the
commission has numberdoubt plenary powers under art. 324 to give any direction in respect of the
conduct of election and
 d  where a particular direction by the companymission is
submitted to the government for approval as
required by the rules it is number open to the
commission to go ahead with implementation of it
at its own sweet will even if the approval of the
government is number given. apart from the arguments referred to above an
alternative argument put forward before us was that even the
rules framed under the act authorise the companymission to give
direction to hold voting by the use of a voting machine and
this is companyered by s. 59 of the act and rule 49 of the
rules. this argument merits serious companysideration. in the
instant case the main grievance of appellant is that the
voting by mechanical process was number permissible either
under the act or under the rules. reliance was however
placed by the appellant on s.59 of the act which runs thus

manner of voting at elections-
at every election where a poll is taken votes
shall be given by ballot in such manner as may be
prescribed and numbervotes shall be received by proxy. it is obvious that s. 59 uses the words ballot in such
manner as may be prescribed which means prescribed by the
rules made under the act. a reference to s. 61 of the act
would show that parliament intended use of ballot paper only
for casting of votes. this takes us to rule 49 the relevant
part of which may be extracted thus

voting by ballot at numberified polling
stations-

numberwithstanding any thing companytained in the
preceding provisions of this part the election
commission may by numberification published in the
official gazette at least 15 days before the date or
the first of the dates of poll appointed for an
election direct that the method of voting by ballot
shall be followed in that election at such polling
stations as may be specified in the numberification. it was submitted that having regard to the modern and
changing companyditions of the society a dynamic approach should
be made to the interpretation of the aforesaid two legal
requirements. the matter does number rest here something companyld
be said for the view that the word ballot includes voting
by machines. section 59 proceeds to explain its intention in
setting up the mode manner and method of voting by
prescribing express rules as to how the voting should be
done. in this companynection reference may be made to rule 22
which relates to the form of ballot paper and its companytents. rule 23 requires the returning officer to record on the
counterfoil of the ballot paper the electoral roll number of
the elector as entered in the marked companyy of the electoral
roll. rule 27 refers to the return of ballot paper after an
elector has recorded his vote or made his declaration. rule
30 which prescribes the companytents of ballot papers is
completely companytrary to the companycept of ballot by machine. similarly rules 33 38 39 and 40 seem to be wholly
inconsistent with the mechanical process but seem to adopt
the companyventional method. as we have already indicated these
rules are binding on the companymission and it cannumber by an
executive fiat either override them or act companytrary to the
statutory provisions of the rules. on a proper and detailed analysis of these rules it is
clear that the act by framing the rules companypletely excluded
the mechanical process which if resorted to would defeat
in a large measure the mandatory requirements of the rules. it is a well settled rule of interpretation of statutes
that words phrase or sentences of a statute should
ordinarily be understood in their natural ordinary popular
and grammatical sense unless such a companystruction leads to
absurdity. mr. jethmalani argued that the word ballot is
wide enumbergh to include the mechanical process and
therefore the direction of the companymission falls squarely
within the four companyners of both s. 59 and rule 49. reliance
was placed on the dictionary meaning of the word ballot
which has been defined in blacks law dictionary  fourth
edn.  at page 182 thus
means act of voting usually in secret by balls
or by written or printed tickets or slips of paper the
system of voting by balls or tickets or by any device
for casting or recording votes as by voting machine. in strouds judicial dictionary  third edn.  however
ballot means votes recorded-all ballot papers put into
the ballot boxes by the electors  p. 3239 . stroud
therefore does number subscribe to the view of casting of vote
through a voting machine and we agree with this view because
casting of votes by machine is a mechanical process which
has companye into existence long after the act was passed and is
number generally invoked in most of the democratic companyntries of
the world. companycise oxford dictionary defines the word ballot
thus
 usu. secret  voting small ball ticket or paper used
in voting votes so recorded lot-drawing. in websters third new international dictionary  vol. 1  at page 168 ballot is defined thus
to obtain a vote from  a body of voters   the men on
the proposal  to select by ballot or by the drawing of
lots. it may be mentioned here that the word ballot has
been derived from the word ballot which existed at a time
when there was numberquestion of any system of voting machine. even in 1951 when the act was passed or the rules were made
the system of voting by machine was number in vogue in this
country. in these circumstances therefore we are
constrained to hold that the word ballot in its strict
sense would number include voting by the use of voting
machines. legislatures must be deemed to be aware of the
modern tendencies in various democratic companyntries of the
world where the mechanical system has been introduced and if
despite the plain meaning of the word ballot they did number
choose to extend the definition given as far back as 1950
it may be safely presumed that the parliament intended to
use the word ballot in its popular rather than a technical
sense. our view finds a good deal of support from the
circumstance that even though the system of voting by
mechanical process was submitted to the government for
approval yet the same was declined which shows that the rule
making authority was number prepared to switch over to the
system of
voting by machines perhaps on account of the legal bar as
indicated by us. it is rather unfortunate that the union of india which
is a party to this case has taken a very neutral stand by
neither supporting number opposing the direction given by the
commission. having regard to these circumstances therefore we are
clearly of the opinion that according to the law as it
stands at present the order of the companymission directing
casting of ballot by machines in some of the polling
stations as indicated above was without jurisdiction and
could number have been resorted to. it was further pointed out by the respondent that the
process of voting by machines is very useful as it
eliminates a number of drawbacks and expedites to a great
extent the declaration of the result of the election by
eliminating the process of companynting of votes from the ballot
boxes. on the other hand the appellant has pointed out a
number of defects some of them being of a vital nature
which would defeat the electoral process. we would number
indicate some of the apparent defects which were pointed out
to us by the companynsel for the appellant after giving a
demonstration of the voting machine before us
the absence of a provision for identifying the
candidate for whom a void vote has been cast-
 a  by impersonating a dead voter
 b  by impersonating an absentee voter
 c  by the genuine voter who tenders a vote after
a vote has been cast in his name by an
impersonator  r. 42
 d  where a vote is void having been cast after
closing time  r. 43
 e  where the voter has cast votes in more than
one booth in the same companystituency s.
62 2
 f  where the voter has cast two votes in two
constituencies s. 63 3
 g  where the voter is disqualified under s. 16
of the act s. 62 4
 h  where an elector marks a ballot paper wrongly
for a candidate he loses the right to get a
fresh ballot paper for casting his vote
correctly  r.41 . the provisions of s. 100 1  d  and more so s. 101 a
and  b  under which by excluding the void votes or
votes cast as a result of companyrupt practices any other
candidate can be declared duly elected as the true
representative of the companystituency. on the other hand a number of advantages which companyld
be obtained by using the mechanical process were pointed out
by the respondent the sum and substance of which was that
despite some defects the electoral process would be
expeditious and would cut out a number of delays or mistakes
committed at various stages. the fact however remains that
if the mechanical process is adopted full and proper
training will have to be given to the voters which will take
quite some time. however we refrain from making any
comments on either the defects or advantages of voting
machines because it would be for the legislature and the
government if it revises its decision at one time or the
other to give legal sanction to the direction given by the
commission. for these reasons it is number necessary for us to
go into the very detailed numberes of arguments submitted by
the parties in respect of this aspect of the matter. lastly it was argued by the companynsel for the
respondents that the appellant would be estopped from
challenging the mechanical process because he did number oppose
the introduction of this process although he was present in
the meeting personally or through his agent. this argument
is wholly untenable because when we are companysidering a
constitutional or statutory provision there can be no
estoppel against a statute and whether or number the appellant
agreed or participated in the meeting which was held before
introduction of the voting machines if such a process is
number permissible or authorised by law he cannumber be estopped
from challenging the same . for the reasons given above we allow the appeal set
aside the election of the respondent with respect to the 50
polling stations where the voting machines were used and we
direct a repoll to be held in these 50 polling stations. we
however do number touch or disturb the results of the votes
secured in the other 34 polling stations which was done in
accordance with law viz. the use of ballot papers. after the repoll the result of
the election would be annumbernced afresh after taking into
account the votes already secured by the candidates
including the respondent.