2001 Supreme(SC) 136

2001(1) Supreme 444
Supreme Court of India
(From Himachal Pradesh High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Shivaraj V. Patil, JJ.
Tek Chand —Appellant
versus
Dile Ram —Respondent
Civil Appeal No. 2730 of 2000
Decided on 24-1-2001
Counsel for the Parties :
For the Appellant : D.D. Thakur, Sr. Advocate, N.N. Bhatt, Vijay Prakash, Ankur Talwar, J.S. Attri, Advocates.
For the Respondent : P.S. Mishra, Sr. Advocate, Ms. Swarupa Reddy, Chandra­shekhar, Upendra Mishra, Vishnu Sharma and C.P. Pandey Advo­cates.
For the State of H.P. : Naresh K. Sharma Advocate.

Important Points
1. In an election petition where an election of a returned candidate is impeached under Section 100(1)(d)(i) of the RPA, it is not enough only to establish that a nomination of a candidate was improperly accepted. In addition, it has to be further established that such wrong acceptance of nomination paper has materially affected the result of the election in so far it concerned the returned candidate.
2. Under Rule 48A of the Central Civil Service (Pension) Rules if the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement sought for becomes effective from the date of expiry of the said period.

Headnote:(i) Representation of People Act, 1951—Section 100(1)(d)(i) read with Section 36(2)(a)—Constitution of India—Article 191—Grounds for declaring election void—Improper acceptance of nomination—It must be established that wrong acceptance of nomination paper has materially ­affected result of election in so far as it concerned the returned candidate—Mere improper acceptance of nomination alone not a ground—Margin of difference between returned candidate and Election Petitioner only 759 votes—Candidate ‘N’ whose nomination was allegedly improperly accepted secured 2287 votes—No plea in election petition as to pattern or trend of voting as to show how wasted votes secured by ‘N’ could have been distributed—Election ­petitioner candidate of BJP—‘N’ was alleged to be member of BJP who had been refused party ticket—No evidence that ‘N’ was member of BJP—No evidence that ‘N’ cut deeply into votes of election petitioner—Trend of voting in previous elections—Votes polled in favour of ‘N’ could not be said to have gone in favour of election petitioner—Strict burden of proof—Not discharged by election petitioner—Election Court not justified in declaring election of returned candidate as void—Elec­tion petitioner did not prove that election was materially affected to his detriment.

       In an election petition where an election of a returned candidate is impeached under Section 100(1)(d)(i) of the RPA, it is not enough only to establish that a nomination of a candidate was improperly accepted. In addition, it has to be further established that such wrong acceptance of nomination paper has materially affected the result of the election in so far it concerned the returned candidate. (Para 14)

       It was not established that Nikka Ram was either a member or activist of RSS and/or BJP. There was also no evidence to establish that he applied for BJP ticket and the same was denied to him. Simi­larly, there was no evidence to establish that he campaigned in the election that he belonged to BJP; he would join BJP in case he was elected and that he was supporter of Shri Atal Bihari Vajpayee. Fur­ther there was nothing to establish that voters of BJP and Nikka Ram were common. On the other hand wife of Nikka Ram contested an election as an independent candidate and defeated both BJP and Congress candi­dates. Having regard to the trend of voting in the previous elections, as brought out in the cross-examination of PW1 and in the absence of any evidence as to the distribution of wasted votes, it cannot be said that votes polled in favour of Nikka Ram would have gone in favour of the respondent if his nomination paper had not been accepted. This being the position, it is not possible to hold that the result of the election is so far it concerned the returned candidate was materially affected. Unfortunately, the High Court has recorded a finding other­wise. The High Court has found fault with the appellant saying that there was no rebuttal evidence as against the so called positive and cogent evidence led on behalf of the respondent (election petitioner), even when the respondent failed to establish his case by discharging burden of proof placed on him. (Para 17)

       The High Court committed a manifest error in concluding that the result of the election of the appellant had been materially affected on account of improper acceptance of the nomination paper of Nikka Ram. No doubt, in appeal court will be slow in disturbing a finding of fact recorded by the trial court based on proper appreciation of evidence but it is also the duty of the appellate court to disturb it if the burden of proof is not discharged by cogent, positive and acceptable evidence in the light of law laid down by this Court. More so when there is non consideration of material evidence and appreciation of evidence is not objective and one sided. (Para 26)

       In a democratic set up, an election of a returned candidate should not be easily vulnerable to vague allegations or to averments made in an election petition not substantiated or supported by positive, cogent and reliable evidence. The verdict given by the majority of voters in a constituency in favour of an elected candidate to represent a constituency in a State Legislative Assembly or Parliament cannot be lightly annulled or negatived in the absence of specific, acceptable and convincing evidence in support of the grounds raised in an election petition. Being the Court of first appeal when the finding recorded by the High Court in this case is not based on proper appreciation and objective assessment of evidence brought on record, as discussed above, we have no impediment in reversing the finding recorded by the High Court. Thus viewed from any angle and even assuming that nomination paper of Nikka Ram was improperly accepted we hold that the election of the appellant-the returned candidate in so far it concerned him had not been materially affected. (Paras 27 & 28)

       (ii) Representation of People Act, 1951—Section 36(2)(a) r/w Section 100(1)(d)(i)—Constitution of India—Article 191—Disqualification from contesting election—Government Servant—Voluntary retirement notice given—Statutory notice period expired but no communication received from appointing authority about refusal to accept voluntary retirement—Candidate could not be said to be in Govt. service after expiry of statutory notice period—Not disqualified.

       On the basis of the material available on record on the date of scrutiny of nomination paper, there was nothing to show that Nikka Ram continued in Government service in view of the admitted position that he had submitted application for voluntary retirement by giving notice on 5.12.1994 and no refusal was communicated to him, refusing acceptance of voluntary retirement before 28.2.1995. By virtue of Rule 48-A, as discussed above, the voluntary retirement of Nikka Ram came into force and became effective from 28.2.1995. Neither Nikka Ram nor Government of Himachal Pradesh are parties to this appeal before us. In this appeal we do not wish to deal with the status of Nikka Ram in relation to Government service or the respective rights and contentions, if any, of Nikka Ram and State Government in regard to his service and the consequences that may follow. For the purpose of this appeal it is enough to say that on the date of filing and scrutiny of nomination paper of Nikka Ram, he should be deemed to have been voluntarily retired by operation of proviso to sub-rule (2) of Rule 48-A of the CCS (Pension) Rules. (Para 38)

       (iii) Central Civil Service (Pension) Rules—Rule 48A—Voluntary retirement—Would be effective from expiry of notice period if permis­sion is not refused.

       Under sub-rule (1) of the said Rule, at any time after completion of 20 years’ qualifying service, a Government servant could give notice of not less than three months’ in writing to the appointing authority for retirement from service. Under sub-rule (2), voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority. In the proviso to sub-rule (2) of Rule 48-A, it is clearly stated that in case the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. It is clear from sub-rule (2) of the Rule that the appointing authority is required to accept the notice of voluntary retirement given under sub-rule (1). It is open to the appointing authority to refuse also on whatever grounds available to it but such refusal has to be before the expiry of the period specified in the notice. The proviso to sub-rule (2) is clear and certain in its terms. If the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement sought for becomes effective from the date of expiry of the said period. In this case, admittedly, the appointing authority did not refuse to grant the permission for retirement to Nikka Ram before the expiry of the period specified in the notice dated 5.12.1994. The learned senior counsel for the respondent argued that the acceptance of voluntary retirement by appointing authority in all cases is mandatory. In the absence of such express acceptance the Government servant continues to be in service. In support of this submission, he drew our attention to Rule 56(k) of Fundamental Rules. He also submitted that acceptance may be on a later date, that is, even after the expiry of the period specified in the notice and the retirement could be effective from the date specified in the notice. Since the proviso to sub-rule (2) of Rule 48-A is clear in itself and the said Rule 48-A is self-contained, in our opinion, it is unnecessary to look to other provisions, more so in the light of law laid down by this Court. An argument that acceptance can be even long after the date of the expiry of the period specified in the notice and that the voluntary retirement may become effective from the date specified in the notice, will lead to anomalous situation. Take a case, if an application for voluntary retirement is accepted few years’ later from the date specified in the notice and voluntary retirement becomes operative from the date of expiry of the notice period itself, what would be the position or status of such a Government Servant during the period from the date of expiry of the notice period upto the date of acceptance of the voluntary retirement by the appointing authority? One either continues in service or does not continue in service. It cannot be both that the voluntary retirement could be effective from the date of expiry of the period mentioned in the notice and still a Government servant could continue in service till the voluntary retirement is accepted. The proviso to sub-rule (2) of Rule 48-A of the Rules does not admit such situation. (Paras 32 & 33)