Input:
of 1951.
Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated November 15, 1950, of the High Court of Judicature at Madras (Menon and Sayeed JJ.) in Criminal Miscellaneous Petition No. 1278 of 1950.
V. K. T. Chari (Advocate General of Madras) (Ganapathy Iyer, with him) for the appellant.
K. section Krishnaswamy Iyengar (K. Venkataramani, with him) for respondent No. 1. 1952.
December 5.
The Judgment of Patanjali Sastri C.J., Mukherjea, Chandrasekhara Aiyar and Ghulam Hagan JJ. was delivered by Patanjali Sastri C.J. Vivian Bose J. delivered a separate judgment.
PATANJALI SASTRI C. J.
This is an appeal from an order of the High Court of Judicature at Madras quashing certain criminal proceedings instituted in 337 the Court of the Third Presidency Magistrate, Madras, against the first respondent who is the managing director of a cinema company carrying on business in Madras under the name of "Prabhat Talkies.
" The proceeding arose out of a charge sheet filed by the police against the first respondent for an offence under section 29 of the (hereinafter referred to as the Act).
The charge was that the first respondent failed to implement certain terms of an award dated 15th December, 1947, made by the Industrial Tribunal, Madras, appointed under the Act and thereby committed a breach of those terms which were binding on him.
The first respondent raised a preliminary objection before the Magistrate that the latter had no jurisdiction to proceed with the enquiry because the award on which the prosecution was based was ultra vires and void on the ground that the reference to the Industral Tribunal which resulted in the award was not made by the Government in accordance with the requirements of section 10 'of the Act.
As the Magistrate refused to deal with the abjection as a preliminary point, the first respondent applied to the High Court under article 226 of the Constitution for a writ of certiorari to quash the proceeding pending before the Magistrate.
The application was heard in the first instance by a single Judge who referred the matter to a Division Bench in view of the important questions involved, and it was accordingly heard and decided by Govinda Menon and Basheer Ahmed Sayeed JJ.
who upheld the objection and quashed the proceeding by their order dated 15th November, 1950.
From that order the State of Madras has preferred this appeal.
The second respondent, the South Indian Cinema Employees ' Association (hereinafter referred to as the Association) is a registered trade union whose members are employees of various cinema companies carrying on business in the State of Madras.
Among these are the 24 cinema houses operating in the City of Madras, including the " Prabhat Talkies".
On 8th 338 November, 1946, the Association submitted to the Labour Commissioner of Madras, who had also been appointed as the Conciliation 'Officer under the Act a memorandum setting forth certain demands against the employers for increased wages and dearness allowance, annual bonus of three months ' wages, increased leave facilities, provident fund, and adoption of proper procedure in imposing punishment and requesting the Officer to settle the disputes as the employers were unwilling to concede the demands.
After meeting the representatives of the employees and the employers, the Labour Commissioner suggested on 28th April, 1947, certain " minimum terms " which he invited the employers and the union officials to accept.
The managers of six cinema companies in the City including " Prabhat Talkies " agreed to accept the terms but the managements of other companies did not intimate acceptance or non acceptance.
It would appear that, in the meantime, a meeting was convened on 22nd February, 1947, of the employees of four cinema companies including "Prabhat Talkies." Ninety four out of 139 workers attended the meeting and resolutions were passed to the effect that no action need be taken about the demands of the Association as the managements of those companies agreed to some improvement in the matter of wages and leave facilities and promised to look into the workers ' grievances if they were real.
But as the terms suggested by the Labour Commissioner were not accepted by all the employers, the representatives of the Association met that Officer on 13th May, 1947, and reported that the Association had decided to go on strike on any day after 20th May, 1947, if their demands were not conceded.
As the conciliation proceedings of the Labour Commissioner thus failed to bring about a settlement of the dispute, he made a report on 13th May, 1947, to the State Government as requited by section 12 (4) of the Act stating the steps taken by him to effect a settlement and why they proved unsuccessful.
In that report, after mentioning the minimum terms suggested by him and 339 enumerating the ten demands put forward by the employee,;, the Labour Commissioner stated as follows: "As the employers have not accepted even the minimum terms suggested by me and as the employees are restive, I apprehend that they may strike work at ' anytime.
I therefore suggest that the above demands made by the workers may be referred to an Industrial Tribunal for adjudication.
I have advised the workers to defer further action on their notice pending the orders of Government," and he concluded by suggesting the appointment of a retired District and Sessions Judge as the sole member of the Special Industrial Tribunal " to adjudicate on this dispute.
" Thereupon the Government issued the G. O. M. section No. 2227 dated 20th May, 1947, in the following terms: " Whereas an industrial dispute has arisen between the workers and managements of the cinema talkies in, the Madras City in respect of certain matters ; And whereas in the opinion of His Excellency the Governor of Madras, it is necessary to refer the said industrial dispute for adjudication; Now, therefore, in exercise of the powers conferred by section 7 (1) and (2) read with section 10 (1) (c) of the " His Excellency the Governor of Madras hereby constitutes an Industrial Tribunal consisting of one person, namely, Sri Diwan Bahadur K. section Ramaswami Sastri, Retired District and, Sessions Judge, and directs that the said industrial dispute be referred to that tribunal for adjudication.
The Industrial Tribunal may, in its discretion, settle the issues in the light of a preliminary enquiry which it may hold for the purpose and thereafter adjudicate on the said industrial dispute.
The Commissioner of Labour is requested to send copies of the order to the managements of cinema talkies concerned," 44 340 The Tribunal sent notices to all the cinema companies in the City and to the Association calling upon them to file statements of their respective cases and to appear before it on 7th July, 1947.
Pleadings were accordingly filed on both sides and the Tribunal framed as many as 22 issues of which issue (3) is ,material here and runs thus: " Is there a dispute between the managements of the City theatres and their respective employees justifying the reference by the Government to the Industrial Tribunal for adjudication ? Whether such an objection is tenable in law ?" It appears to have been claimed on behalf of some of these companies including " Prabhat Talkies " that so far as they ware concerned there was no dispute between the, management and their employees and therefore they should not be included in the reference or the award.
The Tribunal repelled this argument observing: "That even if some of the theatres have got a staff contented with their lot there is a substantial dispute in the industry taken as a whole.
After I arrive at my decision about the basic wages, increments, dearness allowance, etc.
the same will bind the industry as a whole in the City of Madras if the Government accepts and implements my award.
" The Tribunal accordingly held that none of the cinema companies should be "removed from the ambit of this industrial dispute and adjudication ".
It also found as a matter of fact that " the idyllic picture of industrial peace and contentment " put forward by the first respondent company was not justified by the evidence. 'Issue No. 3 was thus found for the Association.
The Tribunal finally passed its award on 15th December, 1947, which was confirmed by the Government on 13th February, 1948, and was declared binding on the workers and the managements with effect from 25th February, 1948, the date of its publication in the Fort St. George Gazette, for a period of one year from that date.
It is alleged that 341 the first respondent failed to implement certain provisions of the award when their implementation was due and thereby committed an offence punishable under section 29 of the Act.
No prosecution, however, was instituted till 24th April, 1950, as, in the meanwhile, certain decisions of the Madras High Court tended to throw doubt on the validity of references made in general terms without specifying the particular disputes or the groups of workers and managements between whom such disputes existed, and legislation was considered necessary to validate awards passed on such references.
Accordingly the Industrial Disputes (Madras Amendment) Act, 1949, was passed on 10th April, 1949, purporting to provide, inter alia, that all awards made by any Industrial Tribunal constituted before the commencement of that Act shall be deemed to be valid and shall not be called in question in, any court of law on the ground that the dispute to which the award relates was not referred to the Tribunal in accordance with the provisions of the (section 5).
It also purported to validate certain specified awards including " the award in the disputes between the managements of cinema theatres and workers " (section 6), which obviously refers to the award under consideration in these proceedings.
In support of his application to the High Court the first respondent herein raised three contentions.
First, the Government had no jurisdiction to make the reference in question as there was no dispute between the management and workers of " Prabhat Talkies " and, therefore, the reference and the award in so far as they related to the first respondent were ultra vires and void; secondly, in any case the notification by the Government purporting to refer an industrial dispute to the Tribunal was not competent under the Act, inasmuch as it did not refer to any specific disputes as &rising for adjudication and did not mention the companies or firms in which the disputes are said to have existed or were apprehended; and thirdly, the Madras Amendment Act was 342 unconstitutional and void under section, 107 of the Government of India Act, 1935, being repugnant 10the provisions of, the Central , and also void under article 13 (1) read with article 14 of the Constitution as being discriminatory in character.
The learned Judges, by separate but concurring judgments, upheld these contentions and issued a certificate under article 132 (1) of the Constitution as the case raised substantial questions of law regarding the interpretation of the Constitution.
As we considered that the contentions of, the appellant on the first two points must prevail, we did not hear arguments on the constitutional issue.
Before dealing with the main contentions of the parties, we may dispose of a minor point raised by Mr. Krishnaswami Aiyangar, for the first time before us, namely, that the prosecution of the first respondent for the alleged breach of some of the terms of the Tribunal 's award is unsustainable inasmuch as it was instituted after the expiry of the award.
In support of this argument learned counsel invoked the analogy of the cases where it has been held that a prosecution for an offence under a temporary statute could not be commenced, or having been commenced when the statute was in force, could not be continued after its expiry.
Those decisions have no application here.
The first respondent is prosecuted for an offence made punishable under section 29 of the Act which is a permanent statute and when he committed the alleged breach of some, of the terms of the award, which was in force at the time, he incurred the liability to be prosecuted under the Act.
The fact that the award subsequently expired cannot affect that liability.
On behalf of the appellant, the Advocate General of Madras urged that the question whether there existed an industrial dispute when the Government made the reference now under consideration was an issue of fact which the High Court ought not to have found in the negative at this preliminary stage 343 before evidence was recorded by the trial court.
He submitted, however, that, on the facts already appearing on the record, there could be no reasonable doubt that an industrial dispute did exist at the relevant time.
We are.
inclined to agree.
The ten demands set forth in the Labour Commissioner 's letter of the 13th May, 1947, which were not agreed to by the managements of the 24 cinema theatres in Madras clearly constituted industrial disputes within the meaning of the Act.
Basheer Ahmed Sayeed J., with whom the, other ' learned Judge concurred, says: "There is nothing in the letter of the Commissioner which would indicate that these demands made by the South Indian Cinema Employees ' Association were referred to the respective owners of the cinema houses in the City of Madras as a body or to any of them individually.
" This, we think is based on a misapprehension of the true facts.
Thedemandswereidenticalwiththose mentioned in the Association 's memorandum originally submitted on the 8th November, 1946, and they formed the subject of discussion with the representatives of the cinema companies in the City in the course of the conciliation proceedings.
That memorandum, which was not made part of the I record in the court below, was produced here, and Mr. Krishnaswami Aiyangar was satisfied that the demands referred to in that memorandum were the same as those mentioned in the Labour Commissioner 's letter of 13th May, 1947, of which all the employers were thus fully aware.
Nor is it correct to say " that the disputes, if any, ' which might have existed between the workmen of the petitioner 's cinema and the petitioner him self had been settled by the petitioner 's ready and willing acceptance of the terms suggested.
by the Commissioner ".
The terms accepted by the first respondent were what the Commissioner called "the minimum terms " and were by no means the same as the demands put for ward by the Association, which were never accepted 344 by the Association.
The Commissioner 's letter of the 13th May, 1947, made this clear.
But, in truth, it was not material to consider whether there was any dispute outstanding between the first respondent and his employees when the Government made the reference on 20th May, 1947.
The learned Judges appear to have assumed that the disputes reference to a Tribunal under section 10 (1) (c) of the Act must, in order that the resulting award may be binding on any particular industrial establishment and its.
employees, have actually arisen between them.
" Analysing the order of reference of the Madras Government now under consideration," the learned Judges observe, " it is obvious that there is no mention of the existence of any dispute between the petitioner (the first respondent herein) and his workmen . . .
In fact there was no dispute to be referred to a Tribunal so far as this petitioner is concerned.
If, therefore, there was no jurisdiction to make any reference, it follows that the whole reference and the award are both invalid and not binding on the petitioner.
" This view gives no effect to the words "or is apprehended " in section 10 (1).
In the present case, the Government referred " and industrial dispute between the workers and managements of cinema talkies in Madras City in respect of certain matters." As pointed out in the Labour Commissioner 's letter to the Government, there were 24 cinema companies in Madras, and the Association, which, as a duly registered trade union, represented their employees, put forward the demands on behalf of the employees of all the cinema houses in the City.
Fifteen out of 43 workers of the " Prabhat Talkies " were admittedly members of the Association which thus figured as one of the parties to the dispute.
In that situation, the Government may have thought, without a close examination of the conditions in each individual establishment, that disputes which affected the workmen collectively existed in the cinema industry in the City and that, even if such disputes had not actually arisen in any particular establishment, they could, 345 having regard to their collective nature, well be appre hended as imminent in respect of that establishment also.
It is not denied that notices were sent by the Tribunal to all the 24 companies and they all filed written statements of their case in answer to the demands made by the Association on behalf of the employees.
In these circumstances, it is idle to claim that the Government had no jurisdiction to make the reference and that the award was not binding on the respondent 's Organisation.
The latter was clearly bound by the award under section 18 of the Act.
It was next contended that the reference was not competent as it was too vague and general in its terms containing no specification of the disputes or of the parties between whom the disputes arose.
Stress was laid on the definite article in clause (c) and it was said that the Government should crystallise the disputes ,before referring them to a Tribunal under section 1 0 (1) of the Act.
Failure to do so vitiated the proceedings and the resulting award.
In upholding this objection, Govinda Menon J., who dealt with it in greater detail in his judgment, said, " Secondly, it is contended that the reference does not specify the dispute at all.
What is stated in the reference is that an industrial dispute has arisen between the workers and the management of the cinema talkies in the City of Madras in respect of certain matters.
Awards based on similar references have been the subject of consideration in this Court recently.
In Bamayya Pantulu vs Kutty and Rao (Engineers) Ltd.(1) Horwill and Rajagopalan JJ.
had to consider an award based on similar references without specifying what the dispute was.
" After referring to the decision of the Federal Court in India Paper Pulp Co. Ltd. vs India 'Paper Pulp Workers ' Union(2), and pointing out that though the judgment of the Federal Court was delivered on 30th March, 1949, it was not referred to by the High Court in Kandan Textile Ltd. vs Industrial Tribunal, Mad ras(3), which was decided on 26th August, 1949, the learned Judge expressed the view that the trend of (1) (3) (2) 346 decisions of this Court exemplified in the cases referred to by me above has not been overruled by their Lordships of the Federal Court.
" Basheer Ahmed Sayeed J. I however, sought to distinguish the decision of the Federal Court on the facts of that case, remarking "that a reading of the order of reference that was the subject matter of the Federal Court decision conveys a clear idea as to a definite dispute, its nature and existence and the parties between whom the dispute existed.
" It is, however,, clear from the order of reference which is fully extracted in the judgment that it did not mention what the particular dispute was, and it was in repelling the objection based on that omission that Kania C.J. said: "The section does not require that the particular dispute should be mentioned in the order; it is sufficient if the existence of a dispute and the fact that the dispute is referred to the Tribunal are clear from the order.
To that extent the order does not appear to be defective.
Section 10 of the Act, however, requires a reference of the dispute to the Tribunal.
The Court has to read the order as a whole and determine whether in effect the order makes such a reference.
" This is, however, not to say that the Government 'will be justified in making a reference under section 10 (1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry, and it is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference.
But, it must be remembered that in making a reference under section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. ' The Court cannot, therefore, canvass the order of reference closely to see if there was any 347 material before the Government to support its conclusion, as if it was a judicial or quasi judicial determination.
No doubt, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act,, and that, therefore, the Tribunal had no jurisdiction to make the award.
But if the dispute was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.
The observations in some of the decisions in Madras do not appear to have kept this distinction in view.
Moreover, it may not always be possible for the Government, on the material placed before it, to particularise the dispute in its order of reference, for situations might conceivably arise where public interest requires that a strike or a look out either existing or imminent should be ended or averted without delay, which, under the scheme of the Act, could be done only after the dispute giving rise to it has been referred to a Board or a Tribunal (vide sections 10(3) and 23).
In such cases the Government must have the power, in order to maintain industrial peace and production, to set in motion the machinery of settlement with its sanctions and prohibitions without stopping to enquire what specific points the contending parties are quarrelling about, and it would seriously, detract from the usefulness of the statutory machinery to construe section 10 (1) as denying such power to the Government.
We find nothing in the language of that provision to compel such construction.
The Government must, of course, have sufficient knowledge of the nature of the dispute to be 45 348 satisfied that it is an industrial dispute within the meaning of the Act, as, for instance, that it relates to retrenchment or reinstatement.
But, beyond this no obligation can be held to lie on the Government to ascertain particulars of the disputes before making a reference under section 10 (1) or to specify them in the order.
This conclusion derives further support from clause (a) of section 10 (1) which provides in the same language for a reference of the dispute to a Board for promoting a settlement.
A Board is part of the conciliation machinery provided by the Act, and it cannot be said that it is necessary to specify the dispute in referring it to such a body which only mediates between the parties who must, of course, know what they are disputing about.
If a reference without particularising the disputes is beyond cavil under clause (a), why should it be incompetent under clause (c) ? No doubt, the Tribunal adjudicates; whereas the Board only mediates.
But the adjudication by the Tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry and is by no means analogous to what an arbitrator has; to do in determining ordinary civil disputes according to the legal rights of the parties.
Indeed, this notion that a reference to a Tribunal under the Act must specify the particular disputes appears appears to have been derived from the analogy of an ordinary arbitration.
For instance in Ramayya Pantulu vs Kutty & Rao (Engineers) Ltd.(1) it is observed "that if a dispute is to be referred to: a Tribunal the nature of the dispute must be set out just as it Would if a reference were made to an arbitrator in a civil dispute.
The Tribunal like any other arbitrator can give an award on a reference only if the points of reference are clearly placed before it.
" The analogy is somewhat misleading.
The scope of adjudication by a Tribunal under the Act is much wider as pointed out in the Western India (1) 349 Automobile Association 's case (1), and it would involve no hardship if the reference also is made in wider terms provided, of course the dispute is one of the kind described in section 2(k) and the parties between whom such dispute has actually arisen or is apprehended in the view of the Government are indicated either individually or collectively with reasonable clearness.
The rules framed under the Act provide for the Tribunal calling for statements of their respective cases from the parties and, the disputes would thus get crystallised before the Tribunal proceeds to make its award.
On the other hand, it is significant that there is no procedure provided in the Act or in the rules for the Government ascertaining the particulars of the disputes from the parties before referring them to a Tribunal under section 10(1).
In view of the increasing complexity of modern life and the interdependence of the various sectors of a planned national economy, it is obviously in the interest of the public that labour disputes should be peacefully and quickly settled within the frame work of the Act rather than by resort to methods of direct action which are only too well calculated to disturb the public peace and order and diminish production in the country, and courts should not be astute to discover formal defects and technical flaws to overthrow such settlements.
In the result we set aside the order of the High Court and dismiss the first respondent 's petition.
BOSE J. I agree but would have preferred to rest my decision on the ground that in this case there was sufficient compliance with the terms of section 10(1) (C) of the Act even on the first respondent 's interpretation of it, namely that the words, " the dispute " require Government to indicate the nature of the dispute which the Tribunal is required to settle.
I say this because, in my judgment, we must read the order of the 20th May, 1947, along with the documentS which accompanied it.
I also agree that one (1) 350 must not be over technical, but had it not been for the /of act that the point is now settled by the decision in the India Paper ' Pulp Company 's case(1) I would have been inclined to consider that an indication of the nature of the dispute, either in the order itself or in the papers accompanying it, was necessary.
However, that is now settled and I have no desire to go behind the decision but I would like to say that even if it is not legally necessary to indicate the nature of the dispute, it is, in my opinion, desirable that that should be done.
Appeal allowed.
Agent for respondent No. 1: section Subramanian.

Output:
The South Indian Cinema Employees ' Association, a regis tered trade union whose members were the employees of the 24 cinema houses operating in the Madras City including some of the employees of the Prabhat Talkies, submitted to the Labour Commissioner a memorandum setting forth certain demands against their employers for increased wages etc.
and requesting him to settle the disputes.
The Labour Commissioner suggested certain, " minimum terms " which were accepted by some of the companies including the Prabhat Talkies and at a meeting of the employees of the Prabhat Talkies a resolution was passed to the effect that no action be taken about the demands of the Association.
The Association decided to go on strike.
The Labour Com missioner reported to the Government, and the Government made a reference to an Industrial Tribunal, the material portion of which " 'Whereas an industrial dispute has arisen between the workers was: and management of the Cinema Talkies in the Madras City in respect of certain matters and whereas in the opinion of His Excellency the Governor of Madras it is necessary, to refer the said industrial dispute for adjudication: now therefore etc.
" The Prabhat 335 Talkies contended before the tribunal that as there was no dispute between them and their employees they should not be included in the reference or award, but the Tribunal did not exclude them and an award was passed, and the managing director of the Prabhat Talkies was prosecuted for non compliance with the award: Held by the Full Court, (i) that the Labour Commissioner 's report clearly showed that an industrial dispute existed between the management and the employees of the cinema houses; (ii) that as some of the workers of the Prabhat Talkies were members of the Union, and a reference could be made even when a dispute was apprehended, the Government had jurisdiction to make a reference even in respect of the Prabhat Talkies and the reference and the award were binding on the Prabhat Talkies.
Held Per PATANJALI SASTRI C.J., MUKHERJEA, CHANDRA SEKHARA AIYAR and GHULAM HASAN JJ.
(BosE J. dubitante) that the reference to the Tribunal under section 10 (1) of the , cannot be held to be invalid merely because it did not specify the disputes or the parties between whom the disputes arose.
Per BOSE J.
The order of reference must be read with the documents which accompanied it and there was sufficient compliance with section 10 (1) (c) of the even if the words " the dispute " in the said clause require the Government to indicate the nature of the dispute which the Tribunal is required to settle.
Even if it is not legally necessary to indicate the nature of the dispute in a reference, it is desirable that that should be done.
Per PATANJALI SASTRI C. T., MUKHERJEA, CHANDRASEKHARA AIYAR and GHULAM HASAN JJ.
Though the Government will not be justified in making a reference under section 10 (1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry and it is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference, it must be remembered that in making a reference under section 10 (1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character.
The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial determination.
No doubt, it will be open to a party seeking to impugn the resulting award to show that what, was referred by the Government, was not an industrial dispute within the meaning of the Act, and that, therefore, the Tri bunal had no jurisdiction to make the award But, if the dispute 336 was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.
The Government must have sufficient knowledge of the nature of the dispute to be satisfied that it is an industrial dispute within the meaning of the Act, as, for instance, that it relates to retrenchment or reinstatement.
But, beyond this no obligation can be held to lie on the Government to ascertain particulars of the disputes before making a reference under section 10 (1) or to specify them in the order.
The adjudication by the Tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry and is by no means analogous to what an arbitrator has to do in determining ordinary civil disputes according to the legal rights of the parties.
Ramayya Pantulu vs Kuttti and Rao (Engineers) Ltd. [(1949) , India Paper Pulp Co. Ltd. vs India Paper Pulp Workers ' Union ([1949 50] F.C.R. 348), Kandan Textiles Ltd. vs Industrial Tribunal, Madras [(1949) and Western India Automobile Association 's case ([1949 50] 1 F.C.R. 321) referred to.
Judgment of the High Court of Madras reversed.


Input:
N: Criminal Appeal No. 38 of 1950.
Appeal from the judgment and order of the High Court of Patiala (Teja Singh C.J., and Gurnam Singh J.) dated 5th October, 1950, in Criminal Appeal No. 28 of 1950, affirming the conviction and sentence of the appellant by the Sessions Judge of Sangrur.
Gopal Singh and Kartar Singh, for the appellant.
Narinder Singh, Advocate General for the Patiala and East Punjab States Union (Jindra Lal, with him) for the respond ent.
Jai Gopal Sethi (R. L. Kohli, with him) for the Cavea tor. 1951.
December 19.
The Judgment of the Court was deliv ered by FAZL ALl J.
This is an appeal against the judgment of the High Court at Patiala upholding the conviction and sentence of the appellant, who was tried by the Sessions Judge of Sangrut for the offence of murder and sentenced to death.
373 The prosecution story is a somewhat long and complicated one, but ignoring unnecessary details, the material facts may be shortly stated as follows : On the 5th October, 1949, there was a quarrel between the appellant and one Darbara Singh, in the course of which the appellant attacked the latter with a phawra (a cutting instrument).
About that time, Gurmail Singh, the deceased person, returned to his house, which was close to the house of Darbara Singh, from his cotton field, where he had been working, in order to take tea for his companions who were still working in his field.
The appellant asked Gutmail Singh to lend him a spear to enable him to kill Darbara Singh, but since the latter refused to do so, there ensued a quarrel between him and the appellant, in the course of which they exchanged abuses and grappled with each other, and the fight was stopped only by the intervention of cer tain persons present at the place.
It appears that the appellant was greatly affected by this quarrel, and thereaf ter he is said to have armed himself with a rifle and at tacked 3 persons in the vicinity of Gurmail Singh 's cotton field.
He fired firstly at Kartar Singh, son of Satwan Singh, while the latter was returning to his house from the field of Gutmail Singh, but he was not hurt.
Soon after that, while Gurmail Singh was returning to his field after attending to his buffaloes in a garden which was nearby, the appellant chased him and fired at him thereby causing his instantaneous death.
Lastly, he is said to have fired at Kartar Singh, son of Bishan Singh and one Jangir Singh, while they were raising an alarm, but the bullet missed them.
Upon these allegations, the following three charges were framed against him : "(1) That you. fired a shot at Gurmail Singh deceased with rifle P.I. with the intention of killing him and caused his death and thereby committed an offence pun ishable under section 302. (2) That you. fired a shot at Kartar Singh and Jangir Singh with rifle P.I. with the intention of causing death and made an attempt to cause their death 374 section 307. . (3) That you. . fired a gun shot at Kartar Singh s/o Satwan Singh. with the intention of killing him and made an attempt to cause his death and thereby committed an offence punishable under section 307. " It appears that the appellant was an Instructor in the Home Guards.
and the rifle which he is said to have used had been given to him by his superior officer with 20 rounds of ammunition.
To support their version of the occurrence, the prosecu tion examined 3 eye witnesses whose evidence has been ac cepted by both the courts below after careful scrutiny.
The learned Sessions Judge acquitted the appellant of the second and third charges under section 307 of the Indian Penal Code, holding that there was no convincing evidence that the appellant intended to murder Jangit Singh and the other 2 persons.
He however convicted him of the first charge under section 302 of the Indian Penal Code and sentenced him to death, which sentence was later confirmed by the High Court.
The learned counsel for the appellant had very little to argue on the merits of the case, but he seriously contended that there had been a misjoinder of charges which could not be tried together under the law, and the illegality so committed had vitiated the whole trial of the appellant.
It appears that in the High Court, the line of argument on this point was somewhat different from the line adopted in this court.
What was stressed in that court seems to have been that the three incidents in respect of which the appellant was charged not having happened in the course of the same transaction, they could not have been properly made the subject of one trial, and for this contention reliance was placed mainly on section 235 (1)of the Criminal Procedure Code, which provides that "if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be at one trial for, every such offence.
" It should be noted 375 that that section is only one of the exceptions to the general rule laid down in section 233 of the Code that for every distinct offence, there shall be a separate charge and every such charge shall be tried separately.
In this court, no reference was made to section 235, but the argument was confined to the question as to whether the present case falls within another exception of section 23 '3 which is contained in section 234 (1) which runs as 'follows : "When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for any number of them not exceeding three.
" It was argued before us that even though only 3 charges have been framed against the appellant, he has in fact been tried for 4 offences and not 3.
The 4 offences are said to be these : (1) Committing the murder of Gurmail Singh; (2) Attempting to murder Kartar Singh, son of Sarwan Singh; (3) Attempting to murder Jangit Singh; and (4) Attempting to murder Kartar Singh, son of Bishan Singh.
The learned counsel contended that the fact that the appellant has been acquitted of the last 3 offences and convicted only of the first offence was immaterial to the point raised by him, and we have only to see whether all the offences mentioned above could be properly tried together.
In our opinion, the short reply to this contention is that the second charge which relates to the appellant firing at Kartar Singh and Jangir Singh is not a charge with respect to 2 offences but is a charge with respect to one offence only.
The evidence adduced by the prosecution shows that the appellant fired only one bullet.
The word "offence" has been defined in the Criminal Procedure Code as meaning "any act or omission made punishable by any law for the time being in force".
There seems to be 49 376 nothing wrong in law to regard the single act of firing by the appellant as one offence only.
On the other hand, we think that it would be taking an extremely narrow and arti ficial view to split it into 2 offences.
There are several reported cases in which a similar view has been taken, and in our opinion they have not been incorrectly decided.
In Queen Empress vs Raghu Rai(1), where a person stole several bullocks from the same herdsman at the same time, it was held that only one offence had been committed.
In Promotha Nath Ray vs King Emperor(2), it was held that misappropria tion in regard to several account books constituted only one offence.
In Johan Subarna vs King EmPeror(3), it was held that when an attempt to cheat a number of men by speaking to them in a body had been committed, one joint charge was valid.
In Poonit Singh vs Madho Bhot (4), it was held that only one offence had been committed by a person who gave false information in one statement to the police against 2 persons.
In Sudheendrakumar Ray vs Emperor(5), a person who was chased by 2 constables had fired at them several times, but it seems to have been rightly assumed that the firing did not constitute more than one offence, though the point was not specifically raised or decided.
In our opinion, there is no substance in the point raised, though we should not be understood as laying down the wide proposition that in no case can a single act constitute more than one of fence.
The other points urged on behalf of the appellant before us were somewhat unsubstantial points relating to the merits of the case, which it is not usual for this court to allow to be raised in appeals by special leave.
In our opinion, this appeal is without merit, and it is accordingly dismissed.
Appeal dismissed.
Agent for the caveator: Vidya Sagar.

Output:
The appellant was tried in respect of the following charges: (i) causing the death of A and thereby committing an offence punishable under section 302, Penal Code, (ii) firing a shot at B and 372 C with the intention of causing their death and thereby committing an offence punishable under section 307, Penal Code, and (iii) firing a shot at D with the intention of killing him and thereby committing an offence punishable under section 307, Penal Code.
It was contended on his behalf that there was a misjoinder of charges as the second charge was really a charge in respect of two offences viz., attempt to murder B and attempt to murder C and the accused had therefore been charged with, and tried for, more than three offences in contravention of section 234 (1) of the Criminal Procedure Code :.Held, that there was nothing wrong in the trial as the single act of firing a shot at B and C is one offence and not two offences and the trial was not bad for misjoinder of charges.
[Their Lordships however observed that they should not be understood as laying down the wide proposition that in no case can a single act constitute more than one of fence.] Promotha Natha Roy vs King Emperor , Johan Subarna vs King Emperor , Poonit Singh vs Madho Bhot (I.L.R. and Sudheendra Kumar Roy vs Emperor (I.L.R. approved.


Input:
Appeal No. 1230 of 1966.
Appeal by special leave from the judgment and order dated August 27, 1962 of the Bombay High Court in Income tax Re ference No. 18 of 1961.
section T. Desai, M. N. Shroff for 1.
N. Shroff, for the appellant.
R. M. Hazarnavis, Gopal Singh, section P. Nayyar for R. N. Sachthey, for the respondent.
239 The Judgment of the Court was delivered by Ramaswami J.
This appeal is brought, by special leave, from the judgment of the High Court of Bombay dated August 27, 1962 in Income Tax Reference No. 18 of 1961.
The appellant is an individual having income from House Property, Government Securities, Cinema Exhibition and financing film producers and distributors.
During the period from March 3, 1952 to November 5, 1952 the appellant advanced a sum of Rs. 40,000/ to a firm of film distributors known as Tarachand Pictures.
The appellant thereafter entered into an agreement dated January 5, 1953 with Tarachand Pictures under which the appellant advanced a further sum of Rs. 60,000/ in respect of the distribution, exploitation and exhibition of a picture called "Shabab".
According to cl. 2 of the agreement the distributors were to pay a lumpsum of Rs. 1,750/ by way of interest on the initial advance of Rs. 40,000/ .
Clause 3 of the agreement read as follows : "No interest will run henceforth on this sum of Rs. 40,000/ as also on the advances to be made as provided hereinabove but in lieu of interest it is agreed that the Distributors will share with the Financier profit and loss of the Distribution, Exploitation and Exhibition of the picture SHABAB in the Bombay Circuit, two third going to the Financier and one third to the Distributors.
" Clauses 4 and 5 were to the following effect "4.
The Distributors shall on or before the 15th of every month submit to the Financier a Statement of Account of the business done during the previous month in respect of the picture 'SHABAB ' in the territories of Bombay Circuit.
The Distributors shall keep the proper accounts of the business of the picture 'SHABAB ' and the same as well as all documents, reports and contracts will be available to the Financier or his agent for inspection.
" Clause 7 read as follows: "In case the picture is not released in Bombay within 15 months from the date hereof the Distributors shall be bound to immediately return all the moneys so far advanced to the Distributors by the Financier.
In that event the Distributors shall be bound to return all the moneys together with interest thereon @ 9% per annum.
" Clause 8 stated: "In case of any breach being committed by the Dis 240 tributors of any of the terms herein provided this agreement shall at once terminate and the moneys paid by the Financier shall be at once repaid by the Distributors to the Financier with interest @ 9% per annum." It appears that the distributors were not in a position to exhibit the film in Bombay within the stipulated time.
When the film was ultimately released for exhibition it proved to be unsuccessful.
The matter was taken to the City Civil Court and ultimately a consent decree was obtained in Suit No. 2061 of 1954 in the Bombay City Civil Court.
In the end the appellant found that there was a balance of Rs. 80,759/ which was irrecoverable and he accordingly wrote it off as a bad debt on December 31, 1955 in the ledger account.
For the assessment year 1956 57, the corresponding previous year being the calendar year 1955, the appellant claimed a loss of Rs. 80,759/ which he had written off as bad debt, under section 10(2)(xi) of the Income tax Act.
By his assessment order dated July 31, 1957, the Income tax Officer disallowed the claim on the ground that the moneys advanced by the appellant under the agreement could not be regarded as a dealing in the course of his financing business, but the true nature of the transaction, as evidenced by the agreement, was a venture in the nature of a trade.
The Income tax Officer accordingly held that the loss was a capital loss and it could not be allowed as a bad debt under section 10(2)(xi) of the Income tax Act.
The appellant took the matter in appeal to the Appellate Assistant Commissioner of Income tax who dismissed the appeal.
The appellant preferred a second appeal before the Income tax Appellate Tribunal which by its order dated February 19, 1960 rejected the appeal, holding that the loss of Rs. 80,759/ was a capital loss and not a loss of stock in trade.
The Tribunal took the view that the transaction was not a joint venture with the distributors or any partnership business and that it was also not a mere financing deal or a part of the money lending activities of the appellant.
According to the Appellate Tribunal, the true nature of the transaction was an investment of the capital for a return in the shape of share of profits, and the loss suffered by the appellant was therefore a capital loss and not a revenue loss.
As required by the appellant, the Tribunal stated a case to the High Court under section 66(1) of the Income tax Act on the following question of law: "Whether the aforesaid loss of Rs. 80,759/ is deductible under any of the provisions of the Act ?" By its judgment dated August 27, 1962, the High Court answered the Reference in the negative and against the appellant.
On behalf of the respondent it was submitted that the High Court was right in taking the view that the appellant had advanced 241 a sum of Rs. 1,00,000/ not with a view to earn interest thereon but with a view to making an investment in the business of Tarachand Pictures and get a return on the said investment by way of a share of profits in the said business.
It was contended that the money was not lent for any definite term and no rate of .interest had been fixed under cl. 3.
The argument was also, stressed that cl. 3 of the agreement stipulated that the appellant was to share with the distributors not only the profit but also the loss of the business, and in the case of no money lending transaction is there a covenant between the parties that the money lender will share the loss of the business for which the money is lent.
In other words, it was argued that no money lending transaction can have the attribute of the money lender sharing the risk of the loss of the business for which the money is lent, nor could it be a feature of any purely financial deal.
We are unable to accept the argument of the respondent that the transaction between the parties under the agreement dated January 5, 1953 was not a money lending transaction or a transaction in the nature of a financial deal in the course of the appellant 's business.
If cl. 3 of the agreement is taken in isolation there may be some force in the contention of the respondent that the term under which the appellant undertook to share the loss took the transaction out of the category of a money lending transaction and the loss suffered by the appellant was therefore a capital loss.
In the present case, however, cl. 3 of the agreement dated January 5, 1953 cannot be read in isolation but it must be construed in the context of cl. 7 which provides that in case the picture was not released in Bombay within 5 months from the date of the agreement, the distributors will return all the moneys so far advanced to them by the appellant together with interest thereon at 9% per annum.
It is the admitted position in the present case that the picture was not released by ,the distributors till the stipulated date, namely, April 4, 1954 but it was released on May 28, 1954 and cl. 7 of the agreement there fore came into operation.
The result therefore is that on and from April 4, 1954 there was a contract of loan between the parties in terms of cl. 7 of the agreement and the principal amount became repayable from that date to the appellant with interest thereon at 9% per annum.
It follows therefore that the appellant is entitled to claim the amount of Rs. 80,759/ as a bad debt under section 10(2) (xi) of the Income tax Act and the loss suffered by the appellant was not a loss of capital bat a revenue loss.
To find out whether an expenditure is on the capital account or on revenue account, one must consider the expenditure in relation to the business.
Since all payments reduce capital in the ultimate analysis, one is apt to consider a loss as amounting to a loss of capital.
But it is not true of all losses, because losses in the running of the business cannot be said to be of capital.
The distinc 242 tion is brought out for example, in Reid 's Brewery Co. Ltd. vs Male(1).
In that case, the brewery company carried on, in addition to the business of a brewery, a business of bankers and moneylenders making loans and advances to their customers.
This helped the customers in pushing sales of the product of the brewery company.
Certain sums bad to be written off and the amount was held to be deductible.
In the course of his judgment Pollock B. said : "Of course, if it be capital invested, then it comes within the express provision of the Income tax Act, that no deduction is to be made on that account." but held that : business can doubt that this is not capital invested.
What it is is this.
It is capital used by the Appellants but used only in the sense that all money which is laid out by persons who are traders, whether it be in the purchase of goods be they traders alone, whether it be in the purchase of raw material be they manufacturers, or in the case of money lenders, be they pawnbrokers or money lenders, whether it be money lent in the course of their trade, it is used and it comes out of capital, but it is not an investment in the ordinary sense of the word.
" In the present case, the conditions for the grant of the allowance under section 10(2)(xi) of the Income tax Act are satisfied.
In the first place, the debt is in respect of the business which is carried on by the appellant in the relevant accounting year and accounts of the business are admittedly kept on mercantile basis.
In the second place, the debt is in respect of and incidental to the business ,of the appellant.
It has also been found that the debt had become irrecoverable in the relevant accounting year and the amount had been actually written off as irrecoverable in the books of the appellant.
For these reasons, we hold that the judgment of the Bombay High Court dated August 27, 1962 should be set aside and the question referred to the High Court must be answered in the affirmative and in favour of the appellant.
We accordingly allow this appeal with costs here and in the High Court.
V.P.S. Appeal allowed.

Output:
The appellant, who was carrying on the business of financing film producers and distributors, had advanced a sum of Rs. 1,00,000 to a firm of film distributors.
Clause 3 of the agreement between the parties provided that the appellant was not entitled to any interest but that he was to share with the distributors their profit and loss; and cl. 7 provided that in case the picture was not released within the stipulated time, the distributors would return to the appellant all the moneys advanced by him together with interest at 9% per annum.
There was delay in releasing the picture and a dispute arose between the appellant and the distributors, which was settled.
The appellant found that a sum of Rs. 80,759 was irrecoverable.
He accordingly wrote it off as a bad debt and claimed it as a revenue loss which should be deducted under section 10(2)(xi) of the Income tax Act, 1922.
The department, the Appellate Tribunal, and the High Court on reference, held against the appellant, on the basis of cl. 3 of the agreement, that the loss suffered by the appellant was a capital loss.
In appeal to this Court, HELD : Since all payments reduce capital one is apt to consider a loss as a capital loss.
But losses in the running of a business cannot be said to be of capital.
To find out whether an expenditure is on the capital account or on revenue account, one must consider the expenditure in relation to the business.
In the present case, the debt was in respect of and incidental to the business of the appellant in the relevant accounting year, and the accounts of his business were kept on mercantile basis.
If cls.
3 and 7 of the agreement are read together, the transaction would be a money lending transaction or a transaction in the nature of a financial deal in the course of the appellant 's business, resulting in a loan repayable with interest.
Therefore, the loss suffered was a revenue loss and the appellant was entitled to claim the deduction of the amount as a bad debt under section 10(2) (xi) of the Act.
[241H; 242E F] Reid 's Brewery Co. Ltd. vs Male, , applied.


Input:
ivil Appeal No. 1483 of 1958.
Appeal by special leave from the judgment and order dated May 21, 1968 of the Allahabad High Court, Lucknow Bench in Civil Misc.
Applications Nos. 41 (E) and 42(E) of 1968 in Election Petition No. 7 of 1967.
C.B. Agarwala, V.P. Joshi and S.S. Khanduia, for the appellant.
G.N. Dikshit, R.N. Dikshit and O.P. Saini, for respondents Nos. 1 and 9.
The Judgment of the Court was delivered by Hegde, J.
This appeal by special leave is directed against the order made by Sahgal, J. on May 21, 1968, permitting the 1st respondent, an elector challenging the validity of the election of the appellant to Lok Sabh 'a from 15, Shahabad Parliamentary Constituency in the general election held in 1967, to inspect the packets of ballot papers containing the accepted as well as the rejected votes of the candidates.
In the election in question as many as 10 persons contested.
The appellant, the Jan Sangh nominee was the successful candidate.
The 9th respondent, Shri Nevatia Rameshwar Prasad, the Congress nominee was his nearest rival.
In the election petition, the petitioner not only wants the appellant 's election to.
be held void, he also wants that the 9th respondent should,, be declared elected.
The election of the appellant has been challenged on various grounds, with most of which we are not at present concerned.
We are only concerned with the allegations relating to the irregularity in the scrutinising and counting of votes.
The 854 averments relating thereto are, found in paragraphs 13 and 14 of the election petition.
They are as follows: (1) only one counting agent was permitted at each table whereas three persons were doing the counting work simultaneously and it was impossible for one man to look into and detect the wrong acts of three persons at the same time.
Under this head it was further mentioned that the counting staff was from amongst the government servants who had gone on two months strike before the election and during the elections they had adopted hostile attitude towards the congress candidates and had made efforts to bring about their defeat; (2) the bundles of votes of either candidates were neither properly made nor properly scrutinised; (3) about 5,000 votes of the congress candidates were improperly rejected ignoring the protests of Mr. Malhotra, the election agent of the congress nominee; (4) invalid votes were counted in favour of the returned candidate.
The votes of the congress candidates were counted for the returned candidate.
In Sch 'E ' certain figures showing the alleged improperly rejected as well as accepted votes pertaining to.
certain booths are mentioned.
It also shows the number of votes of the congress nominee counted as the votes of the returned candidate.
Neither the petition nor the Schedule discloses the basis for arriving at those figures.
The election petitioner is neither the candidate nor his election agent.
In the election petition, it was not stated that he was even the counting agent.
In the verification appended to the election petition, it was averred that the allegations contained in paragraphs 12 to 15 of the election petition were believed by the petitioner to be true on the basis of the information received from the workers of the congress nominee and others which means that the allegations made by him in_paragraphs 13 and 14 of the election petition were based on hearsay information.
He does not and he could not vouchsafe their accuracy though he claims to have believed the information given to him to be correct.
Similarly in the verification appended to Sch. 'E ', the election petitioner stated that he has given the information contained in that Schedule on the basis of the information received from the counting agents of the congress nominee.
Neither in the election petition nor in the Schedule he mentioned that the counting agents had given him the information in question on the basis of any record made by them.
855 In the affidavit filed by the petitioner in support of his application seeking permission to inspect the ballot papers, he went one step further.
Therein he averred that on one of the days when the counting was going on, he acted as one of the counting agents for the congress nominee.
Hence he claims to have personal knowledge of the rejection of some valid votes 'and the acceptance of some invalid votes.
No affidavit of either the congress nominee or his election agent or any of the persons who could have had personal knowledge of the matter was filed in support of that application.
No. oral evidence has been taken in the case till now.
The returned candidate has denied the allegations referred to earlier.
It is true that some of the defeated candidates in their written statements have lent support to the ,allegations made by the election petitioner.
The reason for the same is obvious.
But even they have not filed any affidavit in support of the concerned allegations.
Solely on the basis of the averments made in the election petition and the facts sworn to in the affidavit filed by the election petitioner in support of his application seeking scrutiny of the ballot papers, the trial court had issued the impugned direction.
Before proceeding to.
consider the material in support of the impugned order, it is necessary to mention that it is not the case of the election petitioner that any written objection had been filed during the counting either to the acceptance or to the rejection of any vote.
In the petition, it is averred that "the Returning Officer on being pointed out by the election 'agent of respondent No. 9, Shri P.C. Malhotra, said his decision was final and can be questioned through Election Petition".
Evidently this averment relates to the objections said to have been taken by Shri Malhotra in respect of the orders made by the returning officer as to the validity.
of some of the votes.
Apart from the fact that the allegation in question.
is very vague and lacking in details, not even an affidavit of Shri Malhotra has been filed in support of that allegation.
Admittedly no application was made to the returning officer for recounting the votes.
We have to examine the facts of this case bearing in mind these circumstances.
The importance of maintaining the secrecy of ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several cases.
In particular we may refer to the decisions of this Court in Ram Sewak Yadav vs Hussain Kamil Kidwai and ors.
(1) and Dr. Jagjit Singh vs Giani Kartar Singh(2).
These and other decisions of this Court 'and of the High Courts have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers.
They are: (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the peti (1) (2) A.I.R. 1966 S.C. 773.
856 tioner relies in support of h/s case and (2) the tribunal must be prima facie satisfied that k1 order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.
The trial court was of the opinion that if an election petitioner in his election petition gives some figures 'as to the rejection of valid votes and acceptance of invalid votes, the same must be considered as an adequate statement of material facts.
In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures.
His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis.
He did not say in the petition who those workers were and what is the basis of their information ? It is not his case that they maintained any notes or that he examined their notes, if there were any.
The material facts required to be stated are those facts which can be considered 'as materials supporting the allegations made.
In other words they must be such facts as to afford a basis for the allegations made in the petition.
The facts stated in paragraphs 13 and 14 of the election petition and in Schedule 'E ' are mere allegations and are not material facts supporting those allegations.
This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form.
Unfortunately the trial court has mistaken the form for the substance.
The material facts disclosed by the petitioner must afford an adequate basis for the allegations made.
The learned trial judge while deciding the point in issue overlooked certain important circumstances.
The election petition is silent as regards certain important aspects.
This omission has bearing on the point to be decided.
The allegation that the returning officer did not permit the appellant more than one counting 'agent for each counting table is an extremely vague allegation.
It is not the election petitioner 's case that the congress nominee had appointed more than one counting agent for any counting table but the returning officer did not accept their appointment.
Under section 47 of the Representation of People Act, 1951, a contesting candidate or his election agent may appoint in the prescribe manner one or more persons but not exceeding such number as may be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such 'appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer.
Rules framed under that Act prescribe the number of counting agents that a candidate may appoint.
The form of the notice required to be given trader section 47 of the Act is given in the rules.
The appointment of the counting agents 857 is to be made in the prescribed forms in duplicate, one copy of which is to be forwarded to the returning officer while the other copy should be made over to.
the counting agent.
Rules also provide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the instrument of his appointment after duly completing and signing the declaration contained therein.
The petitioner did not state in the election petition that any of the counting agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to the place of counting.
Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by any statement of facts necessary to be stated.
In other words the material facts relating to the allegations made have not been stated.
Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper.
Therefore it was quite easy for them to note down the serial number of the concerned ballot papers.
The election petition is silent as to the inspection of the ballot 'papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections.
These again are the material facts required to be stated.
As seen earlier the allegations made in the election petition are purported to have been rounded on the information given by others.
No one takes direct responsibility for those allegations.
No oral evidence was given in support of them, not even affidavits were filed in support of the allegations.
The scrutiny of ballot papers was sought on the basis of assertions which were neither accompanied by a statement of material facts nor supported by any evidence.
The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.
It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied.
A judge can be satisfied only on the basis of proof and not on the basis of mere allegations.
There is absolutely no proof in this case to.
support the allegations on the basis of which the scrutiny of the ballot papers was prayed for.
The trial court did not mention in its order even a single reason in support of its satisfaction as to the need for 858 inspecting the ballot papers.
Every judicial order must be based on reasons and those reasons must be disclosed in the older itself.
Unfortunately the learned trial judge had overlooked the importance to be attached to the secrecy of the ballot papers.
We have earlier referred to the principles enunciated by this Court to be followed before ordering the scrutiny of ballot papers.
The legal position in England is the same as in this country.
In fact our election, law is patterned on the basis of the English Election Law.
In Halsbury 's Laws of England (Vol. 14 at page 310, paragraph 559), it is observed: "The usual practice is for an application for a recount to.
be made by summons to.
a judge on the rota for the trial of parliamentary election petitions before the trial on an affidavit showing the grounds on which the application is based.
A recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the returning officer.
" In Rogers on Elections (Vol. II at p. 199) it is observed that an application for recount should be made by summons supported by affidavits showing grounds.
Fraser in his Law of Parliamentary Elections and Election Petitions observes at p. 222: "A strong case must be made on affidavit before an order can be obtained for inspection of ballot papers or counter foils".
Even before the Representation of the People Act, 1951 was enacted the law in this country relating to.
inspection of ballot papers was as stated earlier.
The election tribunals in this country have refused to permit the scrutiny of ballot papers unless there was prima facie evidence in support of the allegations made in the election petition see Tanjore, N.M.R. (Hammond 's Election Cases 673); Punjab North Case (Hammond 's Election.
Cases 569), Karnal Mohammadan Constituency Case (2 Doabia 235 );Karnal (South) General Constituency Case (2,Doabia 80); Chingleput Case (Hammond 's Election Cases 307); see also R. Swaminath 's Case ; Seshaiah vs Koti Reddi and Lakshumanayya vs Rajam Aiyar For the reasons mentioned above we allow this appeal and set aside the order made by the learned trial judge.
He with now proceed with the trial of the case in accordance with law.
The 1 st respondent, the election petitioner shall pay the costs of the appellant in this appeal.
V.P.S. Appeal allowed.

Output:
The first respondent, an elector, challenged the election of the appellant to the Lok Sabha.
He alleged inter alia, in the election petition that: (1) only one counting agent of the defeated candidate was permitted at each table where three persons were counting simultaneously, and hence, it was impossible 'for the counting agent to detect the wrong acts of the counting staff who had adopted an attitude hostile to the defeated candidate; and (2) several votes of the defeated candidate were improperly rejected ignoring the protests of the election agent of that candidate, while invalid votes and votes of the defeated candidate were counted in favour of the appellant.
The Schedule to the petition gave some figures of such improper rejection and improper acceptance.
In the verification to the petition it was stated that the allegations were made on the basis of information 'received from the workers and the counting agents of the defeated candidate and that the election petitioner believed the information to be correct.
It was however not stated in the petition who the workers were and what was the basis of their information.
No written objection was flied during the counting, either to the acceptance or the rejection of any vote, nor was any such application made for a recount.
Before the trial of the election petition the election petitioner filed an application for permission to.
inspect the packets.
of ballot papers containing the accepted as well as rejected votes of the candidates.
In the affidavit in support of the petition he averred that on one of the days of counting.
he was the counting agent of the defeated candidate and had personal knowledge of Such improper rejection and acceptance.
No other affidavit of persons who could have had personal knowledge of the matter was flied.
The High Court allowed the application and permitted scrutiny solely on the basis of the allegations in the election petition and the affidavit in support of the application seeking scrutiny.
In appeal to this Court, HELD.
: In view of the importance of maintaining the secrecy of the ballot papers, scrutiny can only be ordered if the election petition contains an adequate statement of the material facts on which the petitioner relies, that is, the material facts disclosed must afford an adequate basis the allegations; and, the election tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.
[855 G H; 856 A] In the present case, the High Court stated that it was so.
satisfied on the mere statement of 'some figures in the petition and affidavit.
It also did not give any reason in support of its satisfaction as to the need for inspection.
[857 G H] (1) The petitioner had not stated that any.
of the counting agents appointed by the defeated candidate or his election agent, in accordance 853 with the rules, had been refused admission to the place of counting.
Therefore, the allegation that enough number of counting agents were not permitted was not supported by any statement of material facts.
[857 B C] (2) Similarly, with regard to the rejection of the votes polled in favour of the defeated candidate, under the rules, before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper, and therefore, the serial numbers of the concerned ballot papers could have been noted.
The election petition, however, is silent as to the inspection and notes of the ballot papers and other material facts such as raising objections and asking for a 'recount.
[857 C E] Therefore, the scrutiny of the ballot papers was sought on the basis of mere assertions and allegations which were neither accompanied by a statement of material facts nor were they supported by any evidence; and hence, the High Court should have rejected the application for scrutiny.
[857 F] Ram Sewak Yadav vs Hussain Kamil Kidwai, [1964] 6 S.C.R. 238 and Dr. Jagjit Singh vs Giani Kartar Singh, A.I.R. 1966 S.C. 773, followed.