M. N. SAMRATH versus MAROTRAO AND ORS.

M. N. SAMRA1H

MAROTRAO AND ORS.

AND VICE VERSA

May 4, 1979

[V. R. KRISHNA IYER, V. D. TULZAPURKAR AND R. S. PATHAK, JJ.J

Ufe Insurance Corporation of Jnditl (Staff) Regulations 1960, Regulations 25 and 39 vis-a-vis Section 15(g) of the City of Nagpur G'orporation Act, 1948, arnbit and limit and the imporl and interpretation of -Whether Rl!gu· lation 25(4) read with Section 15(g) of the Corporation Act 1948 constitutes or amounts to an ineligibility or disqualification for whole ti111e salaried employee oj L.I.C. to become member of any local authority. Clause (g) of Section 15 of the City of Nagpur Corporation Act, 1948 l•ys down that "no person shall be eligible for election as Councillor if he is under the provisions of any law for the time being in force, ineligibie to be member of any local authority. Under sub-!ection (4) of the Iife Insurance Corporation of India (Staff) Regulations, 1960, "No employee shall canvass or otbenvise interfere or use his influence in connection' with or take part in an election to any legislature or local authority". However proviso (iii) to the, ~aid sub-section lays down that "the Chairman may permit an employee to offer hintself as candidate for election to local authority and the employee so permitted shall not be deemed to have contravened the provisions of this regulation so as to attract punishment under Regulation 39, ibid.

The appellant (in C.A. 2406/77) and returned candidate as :i councilk1r from ward No. 34 of Nagpur was an employee of the Life Insurance Corpo-ration. lie had not sought or got the Chairman's pern1ission to stand for the election, 'Nith the result the election petition filed by his nearest rival respondent I and appellant in C.A. 356 o.f 1978 on this sole ground of taboo was accepted by the Court's. below. The direction given by th'e trial court declaring respondent 1 as an elected candidate was however set aside by the High Court and hence C.A. 356 of 1978 against that part of the decision by respondent 1 in C.A. 2406/77.

Allowing C.A. 2406/77 and dismissing CA. 356178. the Court HELD'

IPcr Krishna Iyer, ].]

1. The impact of Regulation 25(4) is not to impose ineligibility on an L.I.C. employee to be member of Municipal Corporation. Its effect is not on the candidature but on the employment itself. The sole and whole object of Regulation 25 read with Regulation 39, is to lay down rule of conduct for the 1 .. .1.C. employees. Among the 01any things forbidden are for instauce prohibition or acceptance of gifts or speculation in stocks and share. Obviously neither Regulation 32 can be read as invalidating gift to an L.I.C. employee under the law of gifts, nor Regulation 33 as nullifying transfer of stocks and shares speculatively purchased by the L.l.C, employee. · Lik'e1.vise, Regulation

25 while it does n1andate that the employee shall not participate in an election to local authority cannot be read as nullifying the election or disqualifyin: the candidate. The contravention of the Regulation invites dWciplina.ry aclioa which may range from censure to dismissal. [lOBBH, 1089A-B, 1091G]

2. Section I5(g) of the City of Nagpur Corporation Act, 1948 relates to the realm oi election law and eligibility to be member of local autbodty. Jneliglbility nuist flow from specific provision of laV.[1 ]designed to deny eligi· bility or to lay down disqualification. [l089C]

3. If rule of conduct makes it undesirable, objectionable or punishable for an employee to participate in election to local authority, it is distor-tion, even an exaggeration out of proportion. of that provision to extract out of it prohibition of citizen's franchise to be member in the shap! of disqualification from becoming member of loc:il authority. The thrust of Regulation 25 is disciplinary and not disqualificatory. Its intent imposes its limit, language U!!ed by legislature being only means of communicating its will in the given environment This is clear from the fact that t.hb Chair-man is gh·en the power under Proviso (iii) to Section 25(4) to permit such participation by an en1ployee depending on the circumstances of each case. Even the range of punishment is variabl'e. {1089C-E]

4. There is no ground in public policy to suppott the plea to magnify lhe disciplinary prescription into disenfranching taboo. To revere the word to reverse the sense is to do injustice to the art of int.erpretation. Permission is won.1 of wide import and may even survive the death of the person who permits. Equally clearly, where statute does not necessarily insist on pre~ viQUi permission, it may be granted even later to have retrospective effect, or permission once granted may be retracted. [1089E, H, 1090A]

5. The strictly literal construction may not often be logical if the context indicates contrary legislative intent. Courts are not victims of verbalism but are agents of the functional success of legislation, given flexibility of meaning, if the law will thereby hit the target intended by the law-maker. polky-orien.ted understanding of legal provision which does not do violence to the text or the context gains preference as against narrow reading of the words used. So viewed, the core purpose of Regulation 25(4) is not to clamp down disqualifications regarding elections but to lay down disciplinary forbid.dance on conduct of government servants qua government servants contravention of which would invite punishment. This is purpose oriented interpretation. [1087H, lOBBA, 1090E-FJ

Dr. Hui/on ''· f'/1ilfips, 45 Del. 156, 160, 70A. 2d 15, 17 (1949); quoted with approval.

Samfatulla Sarkar v. Surja Krunar Mo11dal, A.I.R. 1955 Cal. 382 (DB); Utlam Si11Rh , .. S. Kripa/ Si11gh, A.LR. 1976 Punj. & Har. 176, approved .

. Naraya11a.rn>a1ny Naidu v. Krishnan1urthy and Anr., I.L.R. (1958) Mad. 513; explained.

6. Another persua55ive factor bas'ed on broader constitutional principle supporting the se_mantic attribution is this : The success of democracy to

'tourniquet' excess of authority depends on citizen participation. An inert citiz.enry indifferent to the political process is an 'enemy of the Republic's vitality. Indeed, absolutism thrives on inaction of the members of the polity. Therefore activist involvement in various aspects of public affairs by a5 many citizens as can be persuaded to interest themselves is sign of the health and strength of our democratic system. Local self-Government and adult fran· chise give constitutional impetus to the citizens to take part in public ad-B minis:ration. Of course, this does not n1ean that where plain conflict of interests between holding an office and taking part in the political affairs of government exists, disqualification cannot be imposed in public interest. The rule ia participation, the exception exclusion. Viewed from that angle if government servant or an employee of the L.I.C. participates in local ad· m.jnistration or other election it may well be that he may forfeit his position as government servant or employment, if dual devotion is destructive of effi· ciency as employee and be subject to disciplinary action-a matter which depends on given milieu and potential public mischief. [1091C.·F]

7. In election law, defeated candidate cannot claim seat through an election petition, merely out of speculative possibilities of success. [1092B]

8. It is true that there is no common law rule applicable in this area and election statutes have to be strictly construed, but that does not doctrinally drive the Court to surrender to bizarre verbalism when different construction may inject teasonableness into the provision. Section 428 of the Corporation Act aims at sense and when plurality of contestants are in the run other tha.n the one whose selection is set aside predictability of the next highest becomes misty venture. The ru1e in section 428 contains the corrective in such situatiortsi and the pregnant expr'ession against whose election no cause or objection i.9: found' gives jurisdiction to the Court to deny the declaration by the next highest and to direct n fresh election when the constituency will speak. [1092C-B]

Pyare Saheb Guizar Chhotumiyan Sawazi v. Dashrath Was11deo and Ors., 1977 Mah. LJ. p. 246; approved.

Sukhdev Singh v. Bhagatram, [1975] 3 S.C.R. 619; [1975] l SCC 421, held inapplicable.

Per Tult.apurkar J. (contra)

1. 'fhe words "any law for the time being in force" occurring in Section 15(g) of the City of Nagpur Corporation Act, 1948 in the context refers to the law in force at the relevant time, that is, at the time of nomination or election when the question of disqualification or ineligibility arises for consideration. [10970-B]

2. On proper construction Regulation 25(4) of the LI.C. (Staff) Regula-tions 1960 read with Section 15(g) of the Corporation Act imposes disquali-fication on or creates an ineligibility for the employees of Life Insurance Corporation to stand for election to any local authority. [10980]

(a) In the first place the heading of the Regulation clearly shows that it d'eals with the topic and intends to provide prohibition against standing for election. Secondly, cl. ( 4) of the said Regulation in plain and expre>s terms provides : (No employee shall .... take part in an election to any local. authority"). In other words, by using negati•e language it puts compkte

embargo r~ubject to proviso (iii)] upon every e111ployee from taking part in .an election to any local authority. [1097F-H)

(b). To say that Regulation 25(4) merely creates prohibition aga::rrst 'Standing for election but does not create any ineligibility or disqualification to stand for an election is merely to quibble at words. There is no <listinclion be-tween legal prohibition against person standing for election and the imoosition of an ineligibility or disqualification upon him so to stand. [1097H, 1098A]

(c) It i:~ true that the purpose of framing Staff Regulations was and is to define the terms and conditions of service of the en1ployees of the L.lC. and that being the purpose it is but natural that provision for imposition of penalties for breach of such Regulations \vould also be made therein. In fact the validitv of such prohibition contained in the concerned Regulation rests upon the ~ostulate that it prescribes code of conduct for the employees and as such it \Vould be within the Regulation making po\ver conferred on the L.J.c·. under s. 49 of the, L.I.C. Act, 1956 but while prescribing cod~· of con-duct the Regulation simultaneously creates disqualification or ineligibility for the e1nploy'cc to s'<!•:ld for ele::tion to any local authority. [1098A-C]

(d) 'fo construe Regulation 25(4) as rnere!y p,rescrib'.ng code of con::!uct breach ·whereof is made punishable under Regulation 39 and not itnposing disqualification. or· ineligibility upon the employees to stand for election to 'local authority would amount to rendering resid·uary provision like s. 15(g) in the Corporafion Act otiose. [1098C-D]

3. The ca~es falling within the aspecls emerging from Regulation ~ ::ind proviso (iii) to Regulation 25(4) nrc completely taken out of the prohibition ·contained in Regulation 25(4). Proviso (iii) to Regulation 25(4) is similar to the proviso tc- s. 15 of the Corporation Act under which disquaiification under els. (e), (f), (g), or (i) could be removed by an order of the Provincial Go\--ernn1ent in that behalf and obviously when any one of those disqualifications ·is removed by an order of the Provincial Government under the proviso the case \l.'OU!d clearly be outside s. 15. Jn other words, the two aspects (i) that certain employees under Regulation 2 would not be governed by the Stan ·Regulations at all and would not, therefore, he hit by the prohibition and (ii) that upon permission being obtained from the Chairman under proviso (iii l the employee would be outside the prohibition have no bearing on the queslith' of pro~er constn1ction of Regulation 25(4). [1098E-F]

In the in~tant case the returned candidate suffered disqualification or ratht.:.r •.vas under an ineligibility under Regulation 25(4) read with s. 15(g) of the Corporation Act, 1948 \.Vh~ch vitiated his election; if he were keen on active participation in the democratic process it \Vas open to h.lm to do so lby either resigning his post or obtaining the Chairman's permission before off~rina his -candidature. ~ut. his . right as citizen to keep up the Republic'<; vitaiit; by actiYe parttc1pat1on 1n the political process cannot be secured to him by purpose-ori'entated construction of the relevant Rer::lation. [11010-FJ

G. /\larayanaswa1ny Naidu v. C. Krishnan1urtli} ... nd dnr. I.L.R. 1938, Mad. 513; explained 2nd approved. 13-409 SCI/79

SUPREME COURT REPO~TS

(1979] J S.G.1C

Aid. Su;·ufatulla Sarkar v. Su~ia. Kumar Monda/, A.~.R. 195,5 D_I. .J~·~~ distinguished. , /

Uttc.ni Sir.gh v. S. Kripal Singh a11d Anr., A.I.R. 1976 P & 176; di3· approved.

HELD FURTHER (Concurring)

.. 4. C.A 356 of 1978 should be dismissed. · The declaration granted to the appellant by the learned · Assist<:mt Judge under s. 428(2) of the Corporation Act, 1948 should never have been granted. It is truo that the election-petitioner secured the next highest number of votes but that by itself would not enlitlo him to get declaration in his favour that he be deemed to have been duly elected as r Councillor from Ward No. 34. [l 102G-H]

5. s~ction 428(2) is not t.hat absolu.te for the relevant part of sub-s. ' (2) . .. provides that if the election of the returned candidate is eith.:r declared to bc-nuU :ind . void or is set aside the District Court "shall direct that the caodid:it:~ if any, in whose favour next highest number of valid votes is recorded afte.._, the said person or after all the persons who have returned at the s:iid election. · and again.ti whose election no cause or objection is found shall ~ deemed to-havc been elected". The words "against whose election no cause or objr.ction. is foundft give jurisdiction to the District Court to deny the declaration to the cand.idate who bas secured the next best vofes. [l 103A-B] .

6. The High Court has rightl}"'taken the view that there was 00 material OR-record to show how the voters, who had voted for the returned candida!e, would have cast th ~ir votes bad they known about the disqualification . . [11038-C]

Obsen•ation

· 1. Judges and lawyers always clamour for legislative simplicity and when· legislative simplicity is writ large on the concerned provision and the text of th! provision is unambiguous and not susceptible to dual interpretation, it would not be permissible for court, __ by indulging in nu.ances semantics and inter-· pre!ative acrobatics to reach the opposite conclusion than is Warranted by its plain text and make it plausible or justify it by spacious referenc.es to the ob-ject, purpose or schem'e of the legislation or in the name of judici2.I activism ..

[1093A·B]

i. Prefaces and exo~dial exe.rcises, · perorations .. and s.!rmons as also the5es almost every judgment irrespective of wheth'er the subject or the ·context or languag: that· needs simplification, have ordinarily no proper place . in judicial' pronou:icements.. In any ·case. day in and day out indulgence in th<!se- in almost every jud~ment irrespective of whether the subjec't or the . . Context or· the oc:::i.sion demands it or not, serves little purpose, and surely such indulgence becomes indefensible · when matters are to be ·disposed of in terms of settle-· meat arrived at between the parties or for the sake ·of expounding the law while ~eje::tiog the approach to the Court at the threshold on prelirnin:lry grounds such :is non-maintainability laches and the like. Judicial activism in m:lay· cases Is the result of legislative inactivity and the role of Judge as law-maker has been applauded but it h:ls been c~iticised also lauded-when it is played within the common law tradition but criticised when it is carried to extremes. [1101F-H, 1102A·Bl

_ • , ,

Pathak, I. (Concurring)

1. Section 15 of ·the N<\:;pur Curporation Act declares person ineligible for election as Councillor on any one of the several grounds. Ile may be in-eligi!Jle because he ic:. not citizen of India, that is t0 say, he lacks in point of legal stJ-;us. He mey alsQ be ineligible in point of lack of capac\ty defined bY referenc~ to disqualifying circumstances, for exan1ple,' he may nave beep adjudged by competent court to be cf unsound mind The disqualification may be found, by nature of clause (,g) under the pi·ovisions of anv subsistffit, Jaw. But the Jaw must provide that he· is ineligible to be member of any Joc~1l authority. The law n1ust deal with ineligibility for men1bership, and in the context of section 15, that must be ineligibility for election. Il must be law concerned with eiections. C!ause (g) is residual clause, not UllCt)ffi-n1only found \V~rever provision of an election law sets forth specified category of ·disquaiified or ineligible person and thereafter includes residual clause, leaving the <lefinition of remaining categories of the other laws. These other laws must also be election laws. An example is the Representation of the People Act, 1951 Y.ihich is relevant to Article 102(1)(e) a.nd Article 191 (l)(e) of tl:ie C'..onstitution. Since section 15 of the Nagpur Corporatioo Act is provision of the election Iaw, clause (g) must be so construed that the la\v pro\•iding for ineligibility contemplated therein must also be of the same nature, that is to say. cledion law. [1104G-H, 1105A-C] 2. Regulation 25(4) of the (Staff) }{egulations is not law, dealing with tlections. Chapter III of the (Staff) Regulations, in which Regulation 25 is found, deals with 'conduct, discipline and appeals' in regard to employees of the Life Insurance Corporation of India. conspectus of the provisions con-tained in t.be Chapter, from section 20 to 50 shows that it deals with nothing else. This is body of provisions defining and controlling the co"J.duct of en1-ployEea in order to ensure efficiency and discipline· in the Corporation, and providing for penalt:es (Section 39) against erring employees. Regulation 25 prohibits participation in politics and standing for eJections. Regulation 25(4) forbids an employee not only from taking part in an election to any 1egi~1atnrc or local authority, but also from C?;nvassing or otherwise interfering or using his influence, in connection with such an election. If . he does, be will be guilty of breach of discipline, punishable [1]1nder Regulation 39. Reeulation 25(4) is norm of discip!ine. In substance it is nothing else. In sub;;tancf', it is not pro,·ision of election la\v. It cannot be construed as defining ground of electoral ineligibility, All that it says to the employee is: "while you n1ay b~ eiigible for election to legislature or Jocal authority, by virtue of your local status or capacity, you shall not exercise that right if you wish to con-form to the discipline of your service." [1105D-G]

3. The right to stand for election flows from the election law-Reoulation 25(4) does not take away or abrogate the right; it merely seeks to rest;ain the employee from exercising it in the interest of service discipline. If in fact the employee exercises the right, he may be punished under Regulation 39 \Vi~h any of the penalties visited on an employee-a penalty V/hich takes its colour from the relevance of 'employment, and has nothing to do with the election law. No penalty under Chapter III of the (Staff) Regu]la,tions can provide for invali-dating the election of an employee to legislature or local authority.

[1105G-H, 1106A]

V/hen the restraint on standing for election imposed by Regulation 25(4) has to be removed, it is by the Chairman of the Life Insurance Corporation of India under the third proviso. When he does so, it is as <:uperior in the hi~rarchy of service concerned 'vith service discipline. He does not do so as an authority concerned \\-'ith elections. Therefore Regulation 25 ( 4) of the Slaff P~egulations is not law within the contemplation of Section 15(g) of the l'\'agpnr Corporation Act. Sc.marth n1ust, therefore, succeed in his app'eal. ~fhat being so, Marotrao must fail in his. Samarth having been July el-ect~d to the office of Councillor Marotrao cannot claim the same office tor himsdf. [l 106A.C, D]

G. 1\!arayanaswan1y Naid11 v. C. Krishnan111rthy & Anr. TLR 513, di:-.approved.

[1958] Mad.

!i1d. Sorafatulla Sarkar v. Suraj Kumar Manda!, A.l.R. 1935 Cal. llttcun Singh v. S. Kirpnl Singh, AIR 1976 Punj. & Har. 176; approved.

Cal. 302:

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2406,177 and 356;78.

Appeal~ by Special Leave from the Judgment and Order dated 1-9 .. /7 of the Bombay High Court i11 SCA No. 1/77.

A. P. Deshpande and M. S. Gupta for the Appellant in CA No. 2406/77 and Respondent in CA No, 356178.

JV. Dhabe and A. G. Ratnaparkhi for the Appellant in CA No. 356/78 ar.d for the Respondent in CA No. 2406/77.

The following Judgments of the Court were delivered

KRISHNA IYER, J. tricky issue of statutory construction, beset with semantic ambiguity and pervasive possibility, and prickly pro-Yision which, if interpreted literally, leads to absurdity and if con-strued liberally, leads to rationality, confront the court in these dual app8als by special leave spinning around the eligibility for candidature of an employee under the Life Insurance Corporation and the declara-tion of his rival, 1st respondent, as duly returned in ~ City Corporation c'ection. tremendous trifle in one sense, since almost the whole tcnn has run out. And yet, divergent decisions of Division Benches cf Madras and Calcutta and recent unanimous ruling of Bench of five judges of Punjab and Haryana together with the Bombay High Court's decision under apoeal have made the precedential erudition s•1fliciently conflicting for this Court to intervene and declare the Jaw, guided by the legislative text but informed by the imperatives of our ccmtitutional order. The sister appeal filed by the respondent relates to thot part of the judgment of the High Court reverses the declaration grunted by the trial judge that he be deemed the returned candidate.

This little preface leads us on to brief narration of the admitted facts. The appellant (in C.A. 2406 of 1977) was candidate for election to the Corporation of the City of Nagpur from Ward 34 and his nearest rival was the I st respondent, although there were other candidates also. Judged by the plurality cl votes, the appellant secured large lead over his opponents, and wos declared elected. The Ci'd of the poll process is often the beginning of the forensic process at the instance of the defeated candidates with its protracted trial a"d ap~1eals upon appeals, thus making elections doubly expensive and terribly traumatic. The habit of accepting defeat with grace, save in gross cases, is sign of country's democratic maturity. J\nyway, in the present case, when the appellant was declared the returned candidate the respmcdent challenged the verdict in court on simple legai ground of ineligibility of the !ormer who was, during the election, development officer under the Li [e Insurance Corpora ti en (for short. the UC) . The leth<el legal infirmity, pressed with success, by the respondent was that under Regu-lation 25 of the Life Insurance Corporation of India (Staff) Regula-tions, 1960 (briefly, the Regulations) framed by the LIC, all its em-ployees \Vere under an en1bargo on taking part in n1unicipal elections, save with the permission of the Chairman. Therefore, the appellant who was such ar: employee and had not sought or got the Chccirman's permission laboured under legal ineligibility as contempfated in s. 15(g) of the City of Nagpur Corporation Act, 1948 (hereinafter referred to as the Act). Both the Courts below shot down the poll verdict with this statutory projectile and the aggrieved' appellant urges before us the futility of this invalidatory argument.

Section 15 ( g) is seemingly simple and reads :

15. No person shall be eligible for election as Council-lor if he-

(g) is under the provisions of any law for the time being in force, ineligible to be men1ber o( any local authority;

So, the search is for any provision of law rendering the returned candi-date ineligible to be member. The fatal discovery of ineligibility made b; the respondent consists in the incontestable fact that the appellant was at the relevant time an LIC employee bound by the Regulations, which have the force of Law, having been framed under R s. ~9 of the LIC Act, 1956. The concerned clause is Regulation 25 ( 4) which reads thus :

"25(4) No employee shall canvass or otherwise

interfere

or use his infinence in connection with or take part in an elect;on io any legislature or local authority. Provided that-xx xx xx (iii) the Chairman may permit an employee to offei; himself as candidate for election to local authority and the employee so permitted shaU not be deemed to have contravened the provisions of this regulation.

complementary regulation arming the Management with power to take action for breach of this ban is found in Regulation 39 wliich states :

39(1). Without prejudice to the provisions of other regulations. any one or more of the following penalties for good and sufficient reasons. and as hereinafter provided be imposed by the disciplinary authority specified in Sche-dule on an employee who commits breach of regulations of the Corporation, nr . ..... "

The crucial issue is whether this taboo in Regulation 25(4) spells electoral ineligibility or merely sets mies of conduct and discipline for employees .. violation of which will he visited with punishment but does not spill over into the area of election law, Two decisions, one of Calcutta Sarafatulln Sarkar v. Surja Kumar Mon~1l(') and the other of Punjab & Haryana Uttam Singh v. S. Kirpal Singh(') support the appellant's position that mere mies regulating service discipline and conduct, even though they have the force of law, canno'. operationally be expanded into an interdict on candidature or amount to ineligibility for standing for election. Chakravarthi, C.J., speaking for Bench of the Calcutta High Court, upheld the stand : Cl

"ft appears to me to be 'abundantly' clear that in so l'ar as the Government Servants' Conduct Rules provide tor discipline and document (conduct?) and, in doing so, forbid conduct of certain varieties their aim is merely regn-H Jation of the conduct of Government servants, as such

(1) A.T.R. 1955 Cal. 382.

(2) A. I. R. 1976 P. &. H. 176.

servants, and that aim is sought to be attained by prescrib-ing certain rules of correct conduct and laying down penal-ties for their breach. If Government .servant disregards any of the Rules which bear upon discipline and conduct and conducts himself in manner not approved by the JI. ulcs r forbidden by them, he mm· incur the penalties ?or which the Rules provide. It cannot, however, be that any of his other rights as citizen will be affeded. Taking the present case, if Government servant violates the prohibition against offering himself as candidate for elec-tion to one or another of the bodies mentioned in Rule 23, he may incur ·dismissal or such other penalty as the authorities may consider called for, but the breach of the conditions of service committed by him cannot disenfran-chise or take away from him any of the rights which he has in the capacity of the holder of franchise.

• \. ~ ..

While, therefore, Government servant offering him-self for ele.ction to one of the bodies mentioned in Rule 23. may bring upon himself disciplinary action, which may go as far as dismissal, the consequence cannot also be that his e:ection will be i·nvalid or that the validity of his election will be affected bv the breach. The disqualification imposed by Rule 2 3 is of the nature of personal bar which can he overstepped only at the Government servant's peril as rerards his membership of service under the Government. [t ls not nnd cannot be an absolute disqualification l'n the nature of ineligibility.

What the Rule enjoins is that GoV'crnment servant shall not take part in any election and that he shall also not take part in the form of offering himself as candidate .... The prohibition is directed at peroonal conduct and not at rights owned by the Government servant concerned. Illus-trations of an absolute prohibition of tho nature of real disqualification or ineligibility will be found in Sections 63-E(l) and 80-B, Government of India Act, 1915-19 and Article l 02 and 19 J of the present Constitution which deal, in both cases. with gualificaticin for election, to the Central or the S1ate Legislature."

In his view. the core purpose of Regulation 25 ( 4) is not to clamp down disqualifications regarding elections but to lav down disciplina:y forbiddance on conduct ~f government ser;ants qua

go>'-"rnme'nt servants contravention of which would invite punishment. If we may say so, this is purpose-oriented interpretation.

Five·J udge Bench of the Punjab & Haryana High Court adop-ted this reasoning in situation akin to ours and repelled the further submi»ion that tho disqualification was founded on the policy that an employee of the Corporation, if he became memhcr of the Legis-lature or City Corporatio'n would not be able to carry out his func-tions. The court also dissen:ed from Division .. :nch decision of the Madras High Court which took contrary view.

lt is fair to notice the Madras ruling before we discuss the fund 1 · mentals and declare the law as we read it to qc. In th•: Madras case Narayanaswamy v. Krishnamurth,(') which related to an Assem-bly scat) r'1e court felt that the point was not free from difficulty but reached !he conclusion that the Regubtion made by the UC was perhaps intended to ensure undivided attention upon their duties as such employees but it also operated as disqualification. The conten-tion before the court was somewhat different. The question posed was whether the concerned Regulation could be treated as law which ful-filled the requirements o[ Art. J 91 (1) (e) of the Constitution. The major eo~sideration of the court was as to whether regulation to ensure proper performance of duties by the employees of the Corpora-tion cculd also he treated as law imposing disqualification. Even so. making liberal approach to the line of reasoning of the court we may consider the observation as striking contrary note.

We do not examine, not having been invited to do so, whztl1cr Parliament or its drlegat•e could enact law relating to elections to local bJdies, topic which falls within the State List. We confine ourselves to the sole question debated at the Bar as to the ambit and limit, the impoct and in"crpretation of Regulatio"n 25 ( 4) of the UC Regulations, vis vis s. 15 (g) of the Act. The Regulations have been framed under s.49 of the UC Act and conspectus of the various chapters convincingly brings home the purpose thereof. All the Regulations and the Schedules exclusive-ly dev0te thcms·2~vcs to defining the terms and co·nctitions of service of the staff. Regulation 25 co·ncs within chap'er !IT dealing with conduct and discipline of the employees. Regulaticm 39 deals with penalties for misconduct and Regulation 40 deal' with appeals. The inference is irresistible that the sole and whole object of Regulation 25, read 'vith Rcgu1aticn 39. is ;o 1'1y do\\"n ru:c of conduct for the

LIC cmployoes. Among the many things forbidden are, for instance, prohibition of acceptance ot gifts or speculation in stocks and shares. Obviously. \Ve cannot read Regulation 32 as invalidating gift to an UC employee under the law of gifts, or Regulation 33 as nullifying transfer of stocks and shares speculatively purch<>\•cd by an LlC emp-loyee. Likewise, Regulation 25 while it docs mandate tha:t the emp-loyee shall not participate in an election to local authority cannot be read as nullifying the election or disqualifying the candidate. The contravcntio'n of the Regulation invites disciplinary action. \Vhich n1ay range fro1n censure to dismissa1.S•oction 15 ( g) relates to the realm o[ election low and eligibility to be member of local authority. Ineligibility must flow from specific provisinn Of ~a\V dr~igncd to deny eligibility Of to luy dO\Vll disqualification. If rule of conduct makes it undesirable, objection-able or punishable for an cmploye•c to participate in electio'ns to local authority. it is distortion, even an exaggeration out of propor-tion, of that provision to extract out o[ it prohibition of citizen~s franchise to he member in the 1shapc of disqualification from becom-ing memkr o[ local authority. The thrust of Regulation 25 is discip1inary not disqua1ificatory. lts inte·nt irr1poses its 1in1it, language used by ~egi~:a~urc being only mc:ins of co1n1nunicating its \Vill in the given e·nvironmcnt. This is obvious from the fact that the Chair-man is given the po\\\?r to pcnnit such participation by an employee depending o'n the circun1:stanccs of each case. Even the range of punish111ents is variable. No ground rooted in public policy compels us to inagnify ~he disciplinary prescription into disi~nfranchising taboo. To rev-ere the v.'ord to reverse the sense is to do i'njustice to the art of interpretation. Reed Dickerson quotes passage, from an American case to highlight the guideline : ( ')

"Th.:: meaning of son1c \'v'Ords in statute may be en-larged or restricted in order to harmonize them with the legislative intent of the entire statute .... lt is the spirit .... of the statute which should ~ovcrn over the literal mccn-ing."

·rhcre 1s further dit1icultv in construing the Regulation c:s stipulat-ing U!1 inL·hgibility for candidµture because there is prov;so therein for tho C:1airmai~ t~ grant pcnilission to the employ~e to participate in elections. Pcnn1ss1011 is \.Vor<l of wide import and inay even survive the death of _the person who permits (Kally v. Cornhill Insw·ance Co.

(1) The Interpretation and Applic.ation of Statutes by Recd n:ckcr.<;cn. p. 199.

Ltd.(') Equally clearly, where statute does not necessarily insist on previous per!!J.ission it may be granted even later to have retros-pective efft:ct. Or permission once· granted may be retracted. These legal pessibilitics will create pnzz!cso.me anomalies if we .treat the Reguh!ion as ban on participation in election. An employee may stand as a· candidate after securing permission, but in the course of the election the Chairman may withdraw the permission. What hap-pens then ? An employee may be refused permission in the begin-ning and if he still contests and wins it is conceivable that the Chair-man may grant him permission which may _remove the disability. In such later stage. ~ ca~e,., one who was ineligible at one stage becomes eligible -· Other odd consequences may also be conceived of, . . at although it is not necessary to figure them cut. The rationale of the Regulation, rather, its thrust, is di~ciplinary_ 11_otdisqi:alificatcry.

It is quite conceivable, if the legislature so expresses itself un-equivocally, that even in law dealing with disciplin~ry control, to enforce electoral disqualifications provided the legislature l1os compe-tence. The prese.tit provision do.~s not go so far.

Ev"n assuming that !iterality in construction has tenability in given circumstances, the doctrinal clevelopmont in the nature of _judicial in-terpretation takes us to other methods like the teleological, the textual, the. co,..tcxtual and the functional. The strictly literal may ~ot often be logicJl if the context indicates contrary legislative intent. Courts are net victims of verbalism but are agents of th~ functional success of legislation, given flexibility of mcar.ing, if the. law will thereby hit the target intended by the law-maker. Here the emphasis lies on the function, utility, aim and purpose which the provision !1as to fulfil. policy-oriented understanding of legal provision which does not' do violence to the text or the context gains preference as against narro\V reading of the words used. Indeed, this approach is version of the plain meaning rule,(') and has judicial sanction. In Hutton v. Phillips the Supreme Court of Delaware said : (')

"(Interpretation) involves far more· than picking out d:ctionary definitions of words or -expressions used. Con-sideration of the context and the setting is ind!spensable pro-perly to ascertain .meaning. Iri saying th?J verbal ex-pression is plain or unambiguous. we mean little mere than that we are convinced that virtually anyone competent to

(t) [1964] 1 All. E. R. 321, H.L. per Lord Dilhorne, L. C. at p. 323.

('.!) The Interpretation and Application of Statutes by Reed Dickerson p. 231.

Cl) 45 Del .156, 160, 70 A. 2nd 15, 17 (1949).

understand it, and desiring io'rly and impartially lo ascertain its dgnification, would attribute to the expression i;1 its con·· text meaning such as the one we derive, rather than any other; and would consider any different meaning, by compa-nson, strained, or far-fetched, or unusual, or unlikely."

This perceptive process leaves us in no doubt about the soundness of the interpretation whkh has appealed to the Full Bench of the Punjab and Haryana High Court and the Division Bench of the Cal-cutta High Court.

There is broader comtitutional principle which supports this semantic attribution. The success of our demoracy to 'tourniquet' zenry indifferent to the political process is an enemy of the Republic's vitality. Indeed, absolutism thrives on inaction of the members of the polity. Therefore, activist involvement in various aspects of public affairs by as many citizens as can be persuaded to interest themselves is sign of the health and strength of our democratic system. Local self-government and adult franch.~se give constitutional impetus to the citizens to take part in public adn1i11i~!ration. Of course. thi-: does not mean that where plain conflict of i:itercsts between holdin~ an office and taking part in the political affair~ of government exists, dis-qualification cannot be imposed in public interest. The rule is par-ticipation. the exception exclusion. Viewed from that angle, if gov-ernment servant or an employee of the LIC participates in local admi-nistration or other election it may well be that he may forfeit his posi-tion as government servant or employment, if dual devoticn is dest-ructive of efficiency as employee and be subject to disciplinary action-a matter which depends on given milieu and potential nublic mis-chief. I am not resting my decision on this general consideration but mention this persuasive factor as broadly supportive of our conclu-sion .I hold that the impact of Regulation 25 ( 4) is not to impose in-eligibility on an LIC employee to be memher of municipal cor-poration. Its effect is not on the C<!ndidature but on the employment itself. In the present C<!se, I am told that the appellant has since resigned his post. The ultimate result of the reasoning that appeals to us is that the judgment of the Hioh Court must be rever~ed and the appellant restored to the poll verdict and be regarded as validly returned member of the Nagpur City Corporation.

In this view, the next appeal by the first respondent does not fall to be considered although e<iunsel has pressed his contention that the High Court was wrong. I do not think it necessary to discuss elab-orately the legal issue except to state that the view taken by tho Bombay High Court in Pyare Saheb's case(') is concct. I am cons-trained to state that the draftsmanship of the provision is dubious and the court in this decision has had to salvage sense out of alternative absmdity flowing from fidelity to pedantry. It is clear, :n election law, that defeated candidate cannot claim seat through an election petition merely out of speculative oossibilities of success. The rea-son;ng of the Bombay High Court not merely accords with the well-known criteria incorporated in the Representaj:ion of the People Act, 1951 as well as in the rulings thereon by this Court but also is in corsono.,ce with the election sense. It is true that there is no com-mon !ow rule applicable in this area and election statute3 have to be strictly construed but that does not doctrinally drive lhe Court to surrcncler to bizarre verhalism when different construction may m-ject reasonableness into the provision.

Section 428 of the Corporation Act aims at sense and when plu-rality of contestants are in the run other than the one whose election is set aside, predictability of the next highest becomes misty ven-ture. The rule in s. 428 contains the correctlvc in such situations and the pregnant expression "igainst whose election no cause or objec-tion is found' gives jurisdiction to the court to deny the declaration by the next highest and to d;rcct fresh election when the constituency will speak. We concur in the reasoning of Masodkar, J. in the said ruling.I')

The reliance on Sukh Dev'' case(") by the counsel is inept. I am satisfied that the view of the High Court on this branch o( the case is correct. J would therefore allow appeal No. 2406 of 1977 and dis-miss appeal No. 356 of 1978. Parties will bear their costs at this late stage when long litigation has kept in suspended nnhr1aticn the co:;stitucncy's right to representation.

·rutZAPURKAR, J.-T have had the benefit of reading the judgn1ent of 1ny esteemed brother Krisl1na Tyer in these. appeals v,rhereby he prcposes \o allow the returned candidate's appeal (C.A. No. 2406 0f 1')77) and dismiss the election petitioner's appeal (C.A. No. 356

(1) Py·1r(' Saheb G11lcar ('hh1111.rniya Sa~r.::ci v. Dcshratl: Wost'deo Doff & Others 1977 Mah. L. J. 246

(2) IJJ7 ivlah. L. J. 246.

(3) S ,f..frde·-' Singh v. Bhar,a/1tm1 [\01~1 3 S C.H 619=[19:75] 1SC.C'421.

·Of 1978) but I regret my inability to agree with him as in my view both the oppeals deserve to be dismissed.

Judges and lawyers always clamour for .legislative simplicity an~. ·when, as is the case here, legislative simplicity is writ large on the concerned provision and the text of the provision is unambiguous and not susceptible to dual interpretation, it would not be permissible for Court, by indulging in nuances, semantics and interpretative aero-· batics, to reach the opposite conclusion than is warranted by its plain text and make it plausible of' justify it by spacious references to the object, purpose or scheme of the legislation or in the name of judicial -activism.Election of Councillors to the Municipal Corporation of City of Nagpur was held on January 29, 1975, whereat from Ward No. 34 Manohar Samarth (Appella_nt in Civil Appeal No. 2406/77), Maro-trao Jadhav and three others (being respondent" 1 to 4 in the scid Civil Appeal) were the contesting candidates. After the polling was ·over Manohar Samarth (hereinafter called 'the returned candidate') was declared successful, he having secured 1428 votes as ag<linst 943 secured by Marotrao Jadhav, 849 by respondent No. 2, 572 by respon-dent No. 3 and 748 by respondent No. 4. Marotrao Jadhav (here-inafter referred to as 'the election petitioner') challenged the election of the returned candidate from the said ward by filing an ,-\ection petition (being Election Petition No. 6 of 1975) before the District Judge, Nagpur under s. 428 of the City of Nagpur Corporation Act, 1948, (for short 'the Corporation Act.') principally on the ground that the returned candidate being Development Officer and salari-ed employee in the Life Insurance Corporation (for short the L.I.C.) had neither sought nor obtained the Chairman's permission fer offer-ing his candidature and as such was disqualified from standing at the election under s. 15 (g) of the Corporation Act read with Regulation 25 I 4) of L.I.C. (Staff) Regulations, 1960. The election was also t:hallenged on grounds of currupt practices, communal propaganda and distribution of malicious and defamatory hand-bills on the part of the returned candidate. In h's written statement the returncJ can-didate refuted all the grounds on which his election was ch21lenged. On the evidence and materials produced by the parties the icarned As-sistant Judge, who heard the matter came to the conclusion that the returned candidate who was working as Development Officer in the L.I.C. was its whole-time salar:ed employee and since he had contested ihe election without seeking or obtaining the permission of the Chair-n11n of the L.I.C. he suffered disqualification under s. 15(g) of the

Corporation Act read with Regulation 25 ( 4) of the L.LC. (Staff) Regulatipns, 1960 which vitiated his election.· On the other ground of challenge, namely, commission of corrupt practices and indulgence in communal propaganda and dis~ribution of malicious and defamatory hand-bills finding was recorded in favour of the returned candidate and against the election petitioner. In the result by her order dated Doc(!mber 21, 1976, the learned Assistant Judge set aside the elec-tion of the returned candidate as being null and void and acting under s. 428(2) granted further declaration that since the election-peti-tioner had secured second highest votes, he shall be deemed to have been dec\ed as Councillor from that ward. · ' ... , -

The decision of the learned Assistant! Judge was challenged by the returned candidate by filing writ petition (Special Civil Application No. 1 of 1977) before the Nagpur Bench of the Bombay High Court. The High Court confirmed the view of the learned Assistant Judge that the returned candidate suffered disqualification which vitbted his election but quashed the de~!aration gral)ted in favour cf the elec-tion-petitioner on the ground that though he had secured the next high-est votes there was no material on record from which it could l{e in-ferred that had the disqualification of the . returned candidate been known to the voters they (the voters) would have definitely returned him ~s their Councillor t_o the Municipal Corporation from Ward No. 34. The High Court, therefore, directed that fresh election to fill the vacancy be held in accordance with law. Civil Appeal No. 2406/77 hos beerr preferred by the returned candidate challenging the High Court's view on his disqualification while Civil Appeal No. 356/7& has been filed by the election petitioner against that part of the deci-sion which has gone against him.

Dealing first with Civil Appeal No. 2406/1977 counsel for the returned candidate (the appellant) pressed only one contention in support of the appeal. He contended that Regulation 25 ( 4) framed under s: 49(b) & (bb) of the L.I.C. Act, 1956, upon proper construc-G tion was mere prohibition and not measure laying down any dis-qualification. According to. him the · L.I.C. (Staff) Regulations 1960 merely laid down the terms and conditions. of service of the staff or-· the L.I.C. and Regulation 25(4) prescribes code of conduct for the staff, breach whereof would entail any of the penalties specified in Regulation 39 and since in the insfant C'\SC the returned candidate had offered his candidature without seeking or obtaining permission of the. Chairman he could be said to have committed breach cf 'one of the terms or conditions of his service for which any penalty ranging

'\)')",

from censure to dismissal could be imposed upon him but che purp0se of Regulation 25 ( 4) was not the c11actment of any disqualification an.d as such the terms of s.15(g) of the Corporation Act were not answered by the inere fa.ct that the ret~;rncd candidate was an c1np·· loyee of the L.I.C. and was subject :o Regulation 25 ( 4). Re[crencc was ah• made to Regulation 2 and p·oviso (iii) to Regulation 25(4) to lend Sllpport to the said contention. lt was pointed out that Regu-lation No. 2 made the Staff Reguht'.ons applicable to every whole·· time salaried employee of the L.I.C. in India "unless othcrwis" pro-vided by the terms of acy contract. a8reem .. cnt :ir letter of appoint-ment" which clearly suggested tha' certain whole-time salaried emp·-loyees of the L.T.C. whose terms and condi~ion, of service were other-wise governed by contract, agreement or letter of appointment would b<! outside the purview of these Regulations and the prohibition con-tained in Regulation 25(4) would not apply to such employees; simi-larly, it was pointed out that the prohibition under Regulation 25(4) itself was not absolute inasmuc_h as under proviso (iii) thereto the employee could offer himself as candidate for election to local authority with the permission of the Chair!!ian. It was contended that these aspects also showed that the prohibition under Regulation 25 I 4) did not amount to disqualification. In support of the cons-truction sought to be placed on Regulation 25 ( 4) counsel relied upon two decisicns one of the Calcutta High Court in Md. Sarafatulla Sarkar v. Surja Kumar Mondal and Ors. Cl and the other Full Bench decision of the Punjab & Haryana High Court in Uttam Singh v. S. Kripal Singh & Anr.(') On the other hand, counsel for the election-petitioner (first respondent) supported the view of the High Court that Regulation 25(4) read with s. 15(g) of the Corporation Act clearly amounted. to disqualification or ineligibility which vitia · ted the election of the returned candidate. He relied upon the Madras ' High Court's decision in G. Narayanaswamy Naidu v. C. Krishna-murthi & Anr.([3]) and urged that the Calcutta decision was clearly distinguishable and as against the Fu!! Bench decision of Punjab aed Haryana High Court which merely followed the Calcutta decision he pressed !lw Madras High Court's view for our acceptance. Accord-ing to him the aspects emerging from Reeulation 2 and prnviso (iii) to Regulation 25(4) had no relevance to the issue of the proper con-struction cf Regulation 25(4) read with s. 15(~) of the Corporation Act. He pointed out that cases fallin!! within the two aspects emerg-ing from Regulation 2 and proviso (iii) to Regulation 25 ( 4) ·were ----~-(!)A. r. R. 1935 Cal. 382. (2) A. J. R. 1976 P. & H. 116. (3) I. L. R. 1958 Mad. 513.

compktciy outside the prohibition, wh'1e the real issue was whethBr or not cas'~ properly fal\i.ng within the prohibition contained in Regula-tion 25 (l) would entail disqualifica!ion or ineligibility.

Since the question turns upon the proper construction af Regula-tion 25(4) of the L.I.C. (Staff) Regulation 1960 read withs. lS(g/) of the Corporation Act it will be desirable to set out the material prov1s:ons. Section 15 of the Corporation Act enumerates in els. (a) to (i) the several disqualifications of candidates for elcction and S. 15(g), wbich is by way of residuary provision, runs thus:

"l 5. No person shall be eligible fer election, selection, or Dppointment as Councillor if he--

( g) is under the provisions of any law for the time being in force, ineligible to be '\member of any local authority,

Provided that disqualification under clause ( ), (f), (g) or (i) may be removed by an order of the Pro-vincial Government in this behalf."

Regulation 25 ( 4) together with proviso (iii) runs thus :

''25. Prohibition against p_Qrticipation in Politics and stauding for Elections :

(•lJ No employee shall canvass or otherwise interfere or use his influence in connection with or take part in an election to any legislature or local authority.

Provided that-

(iii) the Chairman may permit an employee to offer himself as candidate for election to local authority and the employee so permitted 'hall not be deemed to have contravened the pro-visions of this regulation."

·G It tnay be stated that Regulation 39 provides for imposition of seve-ral penalties ranging from censure to dismissal upon a'n en1p~oyee if he were to commit breach of any of the Staff Regulations. The simple question is whether Regulation 25 ( 4) 4) read with s. 15 (g) constitutes or amounts to an ine!'gibility or disqualification for whole-time salaried employee of L.l.C. to become member of any local authority. In otber words, is Regulation 25 ( 4) 4) a. provision of provision of law for the time being in force that renders whole-time salaried

The simple question is whether Regulation 25 ( 4) 4) read with s. 15 (g) constitutes or amounts to an ine!'gibility or disqualification for whole-time salaried employee of L.l.C. to become member of any local authority. In otber words, is Regulation 25 ( 4) 4) a. provision of provision of law for the time being in force that renders whole-time salaried

employee of L.I.C. ineligible to be member of the Municipal Cor-poration within the mea_ning of s. 15(g) of the Corporation '\ct? Before I consider this question of construction certain positions which were not disputed during the course of the arguments may be stated. It was not disputed that at the relevant time, that is, at the time of the no1!'!nation as well '\S the time of election the returned candidate was whole-time salaried employee of the L.I.C. working as its Deve-lopment Officer and as such he was subject to the Staff Regulations . It was also not disputed that under proviso (iii) to Regulation 25(4) he did not obtain the permission from the Chairman of the L.I.C. for the purpose of offering himself as candidate at the election of the Municipal Corporation. It was further not disputed that Regulation 25(4) being statutory regulation framed under s. 49(2) of the L.I.C. Act 1956 had the force of law. Further, though before the High Court contention was strenuously urged that the words "any law for the time being in force" occurring in s. 15 (g) must in the law which ought to h:;ve been in existenc\' at the commencement date of th·.: Corporation Act, such contention was not pressed before us and it wa,. conceded by the counsel for the returned candidate that the said words would include Regulation 25 ( 4) as being the law for the time being in force. Indeed, the concession, in my v'.ew, 'vas rightly made by counsel for the returned candidaJe for the words "any law for the time being in force" occurring in s. 15 (g) .must in the context refer to the law in force at the relevant time. that is, at the time of ;;ominatiol} or election when the question of disqualification or ir.cligibility arises for consideration. It is in light of these undis-puted pooition that the question set out above will have to he con-sidered. The contention is that on proper construction Regulation 25 ( 4) merely creates prohibition but does not amount to disqualification or ineligibility because the Staff Regulations were and are intended to define the terms and conditions of service of the employees of the L.I.C. It is not possible to accept such construction for more than one reason. In the first place the heading of the Regulation clearly shows that it deals with the topic and intends to provide prohibition against standing for election. Seco'ndly, cl. ( 4) of the said Regula-tion in plain and express terms provides~ "No employee shall ....... . take part in an election to any local authority''. In other words, by using negative language it puts complete embargo (subject to pro-viso (iii) upon every employee from taking part in an election to any local authority. How else could d;squalification or ineligibility be worded ? To sav that Regulation 25(4) merely creates prohibition against standing for election but do0 s not create any ineJigjbiltv or disqualification to stand for an election is merely to quibble at words. 14-409 SCT/79

In my view, there is no distinction between legal prohibition against person standing for election and the imposition of an ineligibility or disqualification upon him so to stand. It is true that the purpose of framing Stafi Regulations "'.as and is to define the terms and conditions of service of the employees of the L.I.C. and that being .the purpose it is but natural that ·provision for imposition of penalties for breach of such Regulations would also be made therein. In fact the validity of such prohibition contained in the concerned Regulation rests upon the postulate that it prescribes code of conduct for the employees and as such it would be within the Regulation making power conferred on the L.I.C:tirioeiS: 49 of the L.I.C. Act, 1956 but while prescribing code of conduct the Regulation simultaneously creates disqualification or Ct ineligibility for the employee to stand for election to any local authority. Moreover, to construe Regulation 25(4) as merely prescribing code of conduct breach wherepf is made punishable under Regulation 39 and not imposing disqualification or ineligibility upon .the employee\ , to stand for election to local authority would amount to rendering residuary provision like s. 15 (g) in the Corporation Act otiose. In my view, ther.efore, on proper construction Regulation 25(4) .read with s. 15(g) of the Corporation Act imposes disqualification or creates atJ ineligibility for the employee of L.I.C. to stand for election to any local authority.

Reliance on the aspects emerging from Regulation 2 'Ind proviso (iii) to Regulation 25 ( 4) cannot avail the returned candidate at all, for it is obvious that cases falling within those aspects are completely taken out of the prohibition contained in Regulation 25 ( 4) while the real issue is whether case properly' falling within the prohibition contained in Regulation 25 ( 4) on its proper construction entail~ dis-qualification/ineligibility or not? In fact, proviso (iii) to Regula-F tion 25 ( 4) is similar to the proviso to s. 15 of the Corporation Act under 'which .. disqualification under els. (e), (f), (g) or (i) could be removed by an order of the Provincial Government in that be-half and obviously when any one of those disqualifications is removed by an order of the Provincial Government under the pro;viso the rase would ckarly be outside s. 15. Iii other words, the two aspects (i) that certain employees ·under Regulation 2 would not be governed by the Stafi Regulations at all and would not, therefore, be bit by the prohibition 11nd (ii) . that upon permission being obtained from the Chairman under proviso, (iii) the employee would be outside the prohi-bition have no bearing on the question of proper construction of Regula-H tion 25(4).

Turning to the decided cases, it may be observed that construe· tion similar to the one which I have placed on Regulatioi;i 25 ( 4) of

L.I.C. (Staff) Regulations 1960 was placed by tbe Madras High Court 'On similar L.l.C. Staff Regulation No. 29 read with Article 191 (1) (e) of the Constitution in G. Narayanaswamy Naidu's case (supra) and tbe very argument that Regulation 29 was merely rule of con-duct prescribed for the employees of the L.I.C., the breach of which might result in disciplinary action being taken against them but it did not render the employees disqualified for standing for election was in terms negatived. ~t p_age 549 of tbe report the relevant observations run thus;' "Though the point is not free from difficulty, we have reached the conclusion that this argument of the respondents must be rejected. We see no distinction between legal prchibition against person standing for election, and the imposition of disqualification on him so to stand. It might be that the object of the regulation was to ensuce that the employees of the Corporation bestowed nndivided atteution upon their duties as such employees, but this does not militate against the prohibition operating as disqualifi-cation. If person is disabled by lawful command of the Legislature, issued directly or mediately, from standing for election, it is tantamount to disqualifying him from so stand-ing. We, therefore, hold that regulation 29 framed by the Life Insurance Corporation constituted law which dis-qualification C. Krishnamurthi (?) from standing for elec-tion under Article 191 ( 1) ( e) of the Constitution."

•. ,., •

Though the observations have been prefaced by the words "though the point is not free from difficulty", it seems to me clear that those words were used out of deference to the arguments advanced by learn-ed counsel for the respondents in that case but the Court construed tbe Regulation as imposing disqualification because its plain language warranted it without getting boggled by the object or purpose of the staff Regulation that had been framed under s. 49(2) of the L.I.C. Act 1956.

The Calcutta decision in Md. Sarafatulla Sarkar's case (snpra) relied on by the counsel for the returned candidate 1s clearly distin-~ishable. It was case dealing with an election to Union Board 1l!lder the Bengal Village Self-Government Act (5 of 1919) and the question was whether Rule 23 of the Government Servants' Conduct Rules, 1926 made under Rule 48 of the Civil Services (Classification.

Control and Appeal) Rules framed by the Secretary of State under s. 96B of the Government of India Act, 1915-19, imposed disquali-fication on Government servant against offering himself ior an elec-tion to one of the bodies mentioned in Rule 23 and the Calcutta High Court took the view that it did not so as to render his dcction invalid but that the prohibition contained therein was of nature of personal bar which could be overstepped by the Government servant at his own peril as regards his membership of service w1der the Govern-• ment. It must be pointed out that s. 10-A of the Bengal Village Self-Government Act (5 of 1919) which provided disqualifications ::i..._.J for car,didates from being member of Union Board did not contain-~·• either specific disqualification for Government servant or any residuary provision similar to s. 15(g) of the Corporation Act, 1948 or Article 191 (l )( e) of the Constitution and it was in the absence of any such provision, either specific or residuary that the Calcutta High Court considered the imp.act of the prohibition contained in Rule 23 of the Government ~ervants' Conduct Rules. In fact, this asped of the matter has been emphasised by the learned Chief Justice in para 5 of his judgment where he observed :

"The learned Single Judge considered it immaterial that the ho:ding of post under the Government had not men-tioned as one of the disqualifications for election in <. lOA. Bengal Village Self Government Act, 1919 because in his view, the enumeration of disabilities in that section was not cxhnustive."

In other words, it is clear that had s. JOA of the Bengal Village Self-Governmcnt Act, contained either specific disqualification or resi-I' duary provision of the type th. at is to be found in s. 15 (g) of Corporation Act, 1948 or Article 191 (1 )( e) of the Constitution. Rule 23, it appears, might have been differently construed. Construing Ruic 23 b} itself the learned Chief Justice came to the conclusion that tl1e prohibition therein was directed at personal conduct and not at right owned by the Government servant concerned. In the instant case Regulation 25 ( 4) has to be read with s. 15 (g) oE the Corpora-tion Act, 1948. The learned Chief Justice referred to Rule 8 of the said Rules, which forbade Gazetted Officer to lend money to any person possessing land within the local limits of his authority and pointed out that even so if Gazetted Officer were to knd money to person of the specified category, none could say that the officer shall not be entitled to recover tqe amount of the loan. The test so suggested by the learned Chief Justice may hold good if Rule 8 sim-

pliciter were to be construed. But, if in addition to Rule 8 there was simultaneously in operation usury law which made certain loans irrecoverable including loan prohibit~d by any law for the time be-ing in force then obviously Rule 8 read with such usury law would render rhc loan given by the Qazetted Officer irrecoverable. Similar would be the position regarding the two Regulations No. 32 and • No. 33 referred to by my learned brother Krishna Iyer, J. in his • judgment. Therefore, the Calcutta decision is clearly distinguishable ( mainly on the ground that Rule 23 of the Government Servants' Con-• ...& duet Rules standing by itself came up for construction before that • -~Court in the absence of any specific disqualification or general dis-qualification of residuary nature being enacted in s. 1 OA of the Bengal Village Self-Government, Act, 1919. The Full Bench decision of the Punjab & Haryana High Court, in my view, merely follows the reasqning of the Coleutta decision without considering lhe distinction indicated above and, therefore, it is clear to .me that the construction placed b\ that High Court on Regulation 25(4) of the L.l.C. (Staff) Regulations (1960) read with Article 191 (!) (e) of the Constitution should be rejected as an erroneous one and the construction placed by t]le Madras High Court deserves to be approved. Having regard ~ to the above discussion I am clearly of the view that the returned candidate suffered disqualification or rather was under a11 ineligibility under Regulation 25(4) read with s. 15(g) of the Corporation Act, 1948 which vitiated his election; if he were keen on active participa-tion in the democratic process it was open to him to do so by either resigning his post or obtaining the Ch~irrnan's pcrm1~s1on before offering his candidature but his right as citizen to keep up the Republic's vitality by active partici\)ation in the political process can-not be secured to him by purpose-oriented construction of the rele-..,...-~ vant Regulation. His appeal, ther~fore, deserves to be dismissed. Before parting with this appeal I feel constrain_ed, as part of my duty, to give vent to my feelings of discomfiture and distress over one thing \vhich is exercising my mind for considerable tin1e in this Court. In all humility I would like to point out that prefaces and exordial exercises, perorations and sermons as also theses and philoso-phies (political or social), whether couched in flowery language or language that needs simplification, have ordinarily no proper place in _judicial pronouncements. In any case, day in and day out indul· gence in these in almost every judgment, irrespective of whether the subject or the context or the occasion demands it or not, serves little purpose, and surely such indulgence becomes indefensible when mat-ters are to be disposed of in terms of settlement arrived at between

• • ( • ...&

the parties or for the sake of expounding the law while rejecting the approach to the Court at the threshold on preliminary grounds such as non-maintainability, !aches and the like. I am conscious that judicial activism in many cases is the result of legislative inactivity and the role of Judge as lawmaker has been applauded but it has been. criticised also--Iauded when it is played within the common law tradi-B tion but criticised when it is carried to extremes. Lord Radcliffe in his address titled 'The Lawyer and His Times' delivered at the Sesqui-centennial Convocation of the Harvard Law School observed thus :

• ' ··' ..,,.

"I do not believe that it was ever an important discovery that judges are in some sense lawmakers. It is much more important to analyse the relative truth of an idea so far-reaching; because, unless the analysis is strict and its limit-ations observed, there is real danger in its elaboration. We cannot run the risk of finding the archetypal image of the judge confused in men's minds with the very different image of the legislator." And the risk involved is the possible des-truction of the image of the judge as "objective, impartial, erudite and experienced declarer of the law that is" which "lies deeper in the consciousness of civilization than the imJge of the lawmaker, propounding what are avowedly new rule.§ of human conduct ...... Personally I think that judges will serve the public interest better if they keep quiet about their legislative function. No doubt they will discreetly contribute to changes in the law, because as I have said, they cannot do otherwise, even if they would. But the judge who shows his hand, who advertises what he is about, may indeed show that he is strong spirit, unfettered by the past; but I doubt very much whether he is not doing more harm to the general confidence in the law as constant, safe in the hands of the judges, than he is doing good to the law's credit as set of rules nicely attuned to the sentiment of the day."

Turning to the election-petitioner's appeal (C.A. No. 356 of 1978) I am in complete agreement with the view expressed by the High Court that the declaration granted to him by the leamed Assis-tant Judge under s. 428 (2) of the Corporation Act, 1948 should never have been granted. It is true that the election-petitioner secured the next highest number of votes but that by itself would not entitle him to get declaration in his favour that he be deemed to have been duly elected as Councillor from Ward No. 34. I may point out

that s. 428(2) is not that absolute as was suggested by counsel for the election-petitioner, for, the relevant part of sub-s. (2) provides that if the election of the returned candidate is either declared t0 be null ,md void or is set aside the District Court "shall direct that the candidate, if any, in who~e favour next highest number of valid votes is recorded after the said person or after all the persons who have returned at the said election f!nd against whose election no cause or objection is found shall be deemed to have been elected." The un-derlined words give jurisdiction to the District Court to deny tl:e dec-laration to the candidate who has secured the next best 1otes. The High Court has rightly taken the view that there was no material en record to show how the voters, who had voted for the returned can-didate, would have cast their votes had they 1'nown about the disquali-fication. Therefore, this appeal also deserves to be dismissed.

The

In the result I propose that both the appeals should be dismissed with no order as to costs in each.

PATHAK, J. Manohar Nathurao Samrath was Development Offi-cer in the service of the Life Insurance Corporation of India. His employment was governed by the Life Insurance Corporation of India (Staff) Regulations, 1960 [shortly referred to as the "(Staff) Regula-tions]". Desirous of being Councillor in the Corporation of the City of Nagpur (to which I shall refer as the "Nagpur Corporation"), he stood for election to that office, and was elected. But Regulation 25 ( 4) of the (Staff) Regulations forbade him from taking part in any election to local authority. He could have taken part in the election if he had sought and obtained the permission of the Chairman of the Life Insurance Corporation of India under the third proviso to Regulation 25 ( 4). He did not obtain permission. His election as Councillor was challenged by an election petition filed by an unsuccessful candi-date, Marotrao. It was said that Samrath was ineligible to stand for election because of section 15 (g) of the City of Nagpur Corporation Act, 1948 (to be referred hereinafter as the "Nagpur Corporation Act" 5) read with Regulation 25 ( 4) of the (Staff) Regulations. The ground found favour with the learned Assistant Judge trying the elec-tion petition, and she declared the election void. She also granted declaration that Marotrao was the duly elected candidate.

Samrath filed writ petition in the Bombay High Court. The High Court agreed with the learned Assistant Judge that Samrath was not eligible for election and that his election was void. But it also set aside the declaration granted in favour of Marotrao, and directed fresh election. The Judgment of the High Conrt has been challenged by these two appeals, one by Samrath and the other by Marotrao.

The central question is whether Samrath is ineligible for election as Councillor of the Nagpur Corporation because of Section 15(g) of the Nagpur Corporation Act read with Regulation 25 ( 4) of the (Staff) Regulations.

Section 15(g) of the Nagpur Corporation Act provides :

"15. No person shall be eligible for election as Councillor if he-

(g) is, under the provisions of any law for the time be-ing in force, ineligible to be member of any local authority ;

And Regulation 25 ( 4) of the Staff Regulations declares :

"(25) (1)

(3) ................

( 4) No employe"' shall canvass or otherwise interfere or use his influence in connection with or take part in an election to any legislature or local authority.

Provided that-

( i) ............... .

(ii) ................

(iii) the Chairman may permit an employee to offer him-self as candidate for election to local authority and the employee so permitted shall not be deemed to have contravened the provisions of this regula-tion".

The Nagpur Corporation Act contains number of prov1s1ons concerned with holding elections to the Nagpur Corporation. Sections 9 to 22 deal with various matters, electoral roll, the qualification of candidates, disqualification of candidates, term of office, filling up of casual vacancies, and so on. There is an entire Code of election law. And Section 15 is one of its provisions. Now, section 15 of the Nagpur Corporation Act' declares person ineligible for election as Councillor on any one of several grounds. He may be ineligible be-cause he is not citizen of India, that is to say, he lacks in point of legal status. He may also be ineligible in point of lack of capacity defined by reference to disqualifying circumstances, for examole, he may have been adjudged by competent court to be of unsound mind.

~ • The disqualification may be found, by nature of clause (g), under the provisions of any subsisting law. But the law must provide that he is ineligible to be member of any local authority. The law must deal with ineligibility for membership, and in the context of section 15, that must be ineligibility for election. It must be law concerned with elections. Clause (g) is residual clause, not uncommonly T found wherever provision of an election law sets forth specified ' category of disqualified or ineligible person and thereafter includes 1 residual clause leaving the definition of remaining categories of two • ..A. other laws. These other laws must also be election laws. An T ~-example is the Represeniation of the People Act, 1951 which is rele-vant to Article 102(1) (e) and Article 191 (1) (e) of the Constitution. Since Section 15 of the Nagpur Corporation Act is provision of the election law, clause (g) must be so construed that the law providing for ineligibility contemplated therein must also be of the same nature, that is to say, election law.

Regulation 25 ( 4) of the (Staff) Regulations is not law, dealing with elections. Chapter III of the (Staff) Regulations, in which Regulation 25 is found, deals with "conduct, discipline and appeals" in regard to employees of the Life Insurance Corporation of India. conspectus of the provisions contained in the Chapter, from sections 20 to 50, shows that it deals with nothing else. This is body of provisions defining and controlling the conduct of employees in order to ensure efficiency and discipline in the Corporation, and providin~ for penalties (Section 39) against erring employees. Regulation 25 prohibits participation in politics and standing for elections. Regula-tion 25 ( 4) forbids an employee not only from taking part in an elec-tion to any legislature or local authority, but also from canvassing or otherwise interfering, or using his influence, in connection with such an election. If he does, he will be guilty of breach of discipline, punish-able under Regulation 39. Regulation 25(4) is norm of service discipline. In substance, it is nothing else. In substance, it is not provision of election law. It cannot be construed as defined ground of electoral ineligibility. All that it says to the employee is : "While you may be eligible for election to legislature or local autho-rity, by virtue of your legal status or capacity, you shall not exercise that right if you wish to conform to the discipline of your service." The right to stand for election flows from the election law. Regula-tion 25 ( 4) does not take away or abrogate the right; it merely seeks to restrain the employee from exercising it in the interests of service discipline. If in fact the employee exercises the right, he may be punished under Regulation 39 with any of the penalties visited on an ·employe~-a penalt'y which takes its colour from the relev.mce of em-

ployment, and has nothing to do with the election law. No penalty. under Chapter III of the (Staff) Regulations can provide for invalidat-ing the election of an employee to legislature or local authority. That would be matter for the election law. It is significant that when the restraint on standing for election imposed by Regulation 25 ( 4) has to be removed, it is by the Chairman of the Life Insurance Corporation of India under the third proviso. When he does so, it is as superior in the hierarchy of service concerned with service dis-cipline. He does not do so as an authority concerned with elections.

Therefore, in my judgment, Regulation 25 ( 4) of the (Staff) Regu- ... • lation is not law within the contemplation of section 15 (g) of the · Nagpur Corporation Act.

In reaching that view, I find myself, with regret, unable to sub-scribe to what has been observed by the Madras High Court in Narayanaswamy v. Krishnamurthi.(1) I would say that the Calcutta High Court in Saraf,1tulla Sarkar v. Surja· Kumar Mondal([2 ]) and the Punjab and Haryana High Court in Uttam Singh v. S. Kirpal Singh(') appear to have come more accurate conclusion.

Samrath must, therefore, succeed in his appeal. That being so,. Marotrao must fail in his. Samrath having been duly elected to the Office of Councillor, Marotrao cannot claim the same office for him-self. In the result, Civil Appeal No. 2406 of 1977 is allowed and Civil Appe-al No. 356 of 1978 is dismissed. The judgment of the Bombay High Court is set aside and the election petition filed by Marotrao is dismissed. In the circumstances of the case, the parties will bear· their costs.

ORDER

By majority

Civil Appeal No. 2406 of 1977 is allowed. Civil Appeal No. 356/78 is dismissed unanimously. There will be no order as to costs. in each of the appeals.

Ordered accordingly ..

(I) I. L. R (1958) Mad. 513. (2) A. I. R. 1955 Cal. 382. (3) A. I. R. 1976 Pb. & Haryana. rn>.