Case Note & Summary
The dispute arose from an election to the Orissa Legislative Assembly from the Daspalla double-member constituency, where a seat was reserved for a scheduled caste candidate. The general seat was contested by the appellant, respondent No.1, and respondent No.3. The election was held on February 27, 1957, and the appellant was declared elected on March 5, 1957, securing 17,700 votes against respondent No.1's 15,568 and respondent No.3's 3,589. Respondent No.1 filed an election petition before the Election Tribunal challenging the appellant's election on multiple grounds, including bribery, publication of a false pamphlet, and obtaining or procuring assistance from Sarpanches of certain Grama Panchayats for furtherance of his election prospects in violation of Section 123(7)(f) of the Representation of the People Act, 1951. The Election Tribunal dismissed the petition, holding no grounds established. On appeal, the High Court of Orissa found that bribery and the false pamphlet allegations were not proven, but held that a Sarpanch, though not a government servant appointed by the Government, was nonetheless a person in the service of the Government because he performed governmental duties and was removable by the Government. Consequently, the High Court set aside the appellant's election, while recommending that the disqualification under Section 140 be removed by the Election Commission under Section 144. The appellant then appealed to the Supreme Court. The Supreme Court granted special leave under Article 136 of the Constitution, noting the substantial question of law involved, without deciding the applicability of Article 133(1)(c). The Court examined the statutory scheme, noting the amendment to Section 123 which replaced the expression 'serving under the Government' with 'in the service of the Government,' thereby importing a master-servant relationship. The Court held that two conditions must co-exist for Section 123(7)(f) to apply: the person must be in the service of the Government and must belong to a specified class, such as revenue officer or village accountant. Analyzing the Orissa Grama Panchayats Act, 1948, the Court found that the Sarpanch was the executive head of the Grama Panchayat, was neither appointed nor paid by the Government, and was not under the control of the Government while discharging his functions; his removal by Government on grounds of negligence, inefficiency or misbehaviour did not create a master-servant relationship. Mere power of control and supervision over a body exercising administrative functions did not make its office holders persons in the service of the Government. The Court further held that a Sarpanch was neither a revenue officer nor a village accountant, and hence did not fall within clause (f). Accordingly, the Supreme Court allowed the appeal, set aside the High Court's judgment, and held that the appellant was not guilty of any corrupt practice under Section 123(7)(f).
Headnote
A) Election Law - Corrupt Practice - Person in Service of Government - Representation of the People Act, 1951, Section 123(7)(f) - To attract Section 123(7)(f), two conditions must co-exist: the person must be in the service of the Government and must belong to a specified class such as revenue officer or village accountant. The Sarpanch of a Grama Panchayat under the Orissa Grama Panchayats Act, 1948, was neither appointed nor paid by the Government, was not under Government control while discharging functions, and could only be removed on grounds of negligence, inefficiency or misbehaviour; therefore no master-servant relationship existed. Held that the Sarpanch was not a person in the service of the Government and obtaining his assistance did not constitute corrupt practice under Section 123(7)(f) (Pages 953-958). B) Statutory Interpretation - 'Serving under Government' vs 'In Service of Government' - Scope of Amendment - Representation of the People Act, 1951, Sections 123(8) and 123(7) - The amendment replaced the wider expression 'serving under the Government' with the narrower phrase 'in the service of the Government,' importing the relationship of master and servant. Before amendment, Section 123(8) covered every person serving under the Government unless declared otherwise; after amendment, Section 123(7) applies only to specified classes, including clause (f) revenue officers including village accountants. Held that the narrower construction must be applied (Pages 956-958). C) Constitutional Law - Special Leave to Appeal - Article 136 Constitution of India - The High Court granted a certificate under Article 133(1)(c), though one judge doubted its applicability. The Supreme Court did not decide that question but granted special leave under Article 136 because the appeal raised a point of law of considerable public importance (Pages 955-956).
Issue of Consideration
Whether a Sarpanch of a Grama Panchayat constituted under the Orissa Grama Panchayats Act, 1948, is a person in the service of the Government of the State of Orissa and belongs to the class specified in clause (f) of Section 123(7) of the Representation of the People Act, 1951, so as to attract corrupt practice.
Final Decision
Appeal allowed; High Court judgment set aside; appellant not guilty of corrupt practice under Section 123(7)(f); election upheld.
Law Points
- Legal points not extracted
- Distinction between 'serving under Government' and 'in service of Government'
- master-servant relationship required for 'in service of Government'
- mere control and supervision insufficient
- Sarpanch of Grama Panchayat in Orissa not in service of Government
- Sarpanch not revenue officer or village accountant
- two conditions must co-exist under Section 123(7)(f)
- amendment narrowed scope from Section 123(8) to Section 123(7)
