LAWS(RAJ)-1974-9-11

FIROJ JAL MOTI SHAW Vs. JAGDISH PRASAD

Decided On September 30, 1974
FIROJ JAL MOTI SHAW Appellant
V/S
JAGDISH PRASAD Respondents

JUDGEMENT

(1.) APPELLANT Firoj Jal Moti Shaw and respondent Jagdishprasad were candidates for the general seat from ward no. 6 for election as members to the Mourn Abu Municipality, Mount Abu, hereinafter to be referred to as the municipality. From the same ward, Bala was candidate for the reserved seat. The elections took place on 25-10-70 and the appellant and Bala were declared duly elected from W. No. 6 for the general and reserved seats respectively. The respondent who secured less votes than the appellant, presented an election petition under sec 34 of the Rajasthan Municipalities Act, 1959, hereinafter to be referred as the Act, calling in question the election of the appellant as also of Bala on the ground that both of them were guilty of corrupt practices. An additional ground was also taken by the respondent that the appellant was disqualified for being elected as member by reason of Clause (xii) of sec. 26 of the Act. It was contended that the appellant on account of his being 'sarvesarva' (a!l-in all) employee of the Mount Abu Electric Supply Company, Mt. Abu, hereinafter described as the Company, had direct or indirect interest in the contract for the supply of electricity entered into between the Company and the Municipality. The election Petition was opposed by the appellant as also by Bala. The learned Civil Judge who tried the election petition, framed the following issues. 1. Whether the non-applicant No. 1 was disqualified to stand for the election in lieu of sec 26 (12) of the Rajasthan Municipalities Act, 1959 ? 2. Whether the applicant proves that there was a pact between the non-applicants to fight the election and for this reason the election of the non-applicants is void ? 3 Whether the non-applicant No. 1 used corrupt practices in the election as stated in para 4 of the election petition ? 4. Whether the statement (speech) of Shri Khet Singh amounted to a corrupt practice in relation to the congress candidate (non-applicant no. 2) as well as non-applicant No. 1, and if so, on that ground the election of the non-applicants could be declared invalid ? 5. Whether the election petition is without time ? 6. Whether the court has jurisdiction to hear the petition ? 7. Relief? On a consideration of the evidence led by the parties, the learned Civil Judge found issue no. 1 in favour of the respondent. He held that the appellant being admittedly an employee of the Company had both direct and indirect interest in the contract between the Municipality and the Company. He was therefore declared disqualified under sec. 26 (12) of the Act from contesting the election. Issues No. 2, 3 and 4 which related to the various allegations of corrupt practices were found against the respondent. Issues Nos. 5 and 6 were found in favour of the respondent. The learned Civil Judge, in the result, in view of his finding on issue No. 1 partly allowed the election petition and declared the election of the appellant void. Dissatisfied with the said order, the appellant has preferred this appeal.

(2.) THE main controversy in the present appeal centres round to the first issue relating to the question whether the appellant was disqualified for being chosen as a member of the Municipality under sec. 26 (12) of the Act. In order to appreciate the point involved in the right perspective, it is necessary to narrate some facts which are no longer in dispute. It is an admitted case of the parties that at time of the filing of the nomination papers so also at the time of the scrutiny and on the date of the election, the appellant was holding the post of Engineer-in-charge of the Company. During the relevant period he was operating the account of the Company and was looking after all the affairs of the Company. THE Company commenced supplying electricity to the Municipality under an agreement entered into in the year 1939. This agreement was for a period of 30 years. On the expiry of period of 30 years, another agreement was entered into on 26-11-69 for a further period of 10 years. This agreement dated 26-11-69 was in force at the time of the filing of the nomination paper by the appellant. It is further not in dispute that the appellant was a paid employee of the Company during the relevant period. THE terms of his employment are contained in the agreement Ex. A/1. It is also not in dispute that the Company is a partnership-firm and the appellant is not a partner in it and he owns no share in it THE learned Civil Judge on the aforesaid admitted facts ob-erved "having given my anxious consideration to the arguments advanced by the learned advocates for the parties, I am of the opinion that in the present petition the non-petitioner no. 1 being an employee of the Mount Abu Electricity Company and being highly interested in the affairs of the Company, he cannot be said to be a person not interested in the contract between the Municipal Committee, Mount Abu and the electricity supply company and there would be a clash with his duty as a member of the Municipal Committee on account of his employment in the company. Secondly, the non-petitioner himself has stated that in case the company gets more profits the non petitioner would get more bonus and therefore the non petitioner would always be interpreted in looking to the pecuniary benefits of the company rather than to the interest of the Municipal Committee, Mt. Abu. He would thus get a financial benefit on account of the contract between the company and the Municipal Committee. THErefore, through his employer he is interested in the contract. '

(3.) MR. MRidul, the learned advocate for the appellant, contends that the learned Civil Judge was entirely wrong in holding that because the appellant was an employee of the Company he was not only highly interested in the affairs of the Company but he was also interested in the contract between the Municipality and the Company. His further contention is that under sec. 10 of the Payment of Bonus Act, 1965, the employer is bound to pay minimum bonus irrespective of the fact whether there are profits or not. His further contention is that under sec. 11, an employee becomes entitled to a maximum bonus not as a matter of course but only if in any accounting year the allocable surplus exceeds the amount of minimum bonus payable to the employees under sec. 10. MR. MRidul contends that the statement of the appellant relied upon by the learned Civil judge simply clarifies the legal position in respect of the payment of the bonus. There is nothing to show in his statement that the Company after entering into the contract in the year 1969 ever earned profits or earned profits over and above the minimum bonus payable under sec. 10 of the Payment of Bonus Act. 1965. It is further contended that the appellant is one of several employees of the Company and similarly, the Municipality is one of the several consumers of the electricity generated by the Company. In these circumstances, when it is proved that the appellant has no share in the profits of the Company, the view taken by the learned Civil Judge that the appellant on account of his being an employee of the Company cannot claim to have no interest in the contract and further that his interest in the Company is bound to clash with his duty as member of the Municipality is wholly fallacious and unwarranted. It is argued that such a sentimental or sympathetic interest of the appellant in the contract cannot disqualify the appellant under sec. 26 (12) of the Act.