Full Judgment Text
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CASE NO.:
Appeal (crl.) 1001 of 2000
PETITIONER:
PRADYUT BORDOLOI
Vs.
RESPONDENT:
SWAPAN ROY
DATE OF JUDGMENT: 12/12/2000
BENCH:
R.C.Lahoti, Shivarj V. Patil
JUDGMENT:
R.C. Lahoti, J.
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This is an appeal under Section 116 A of the
Representation of the People Act, 1951 (hereinafter, RPA for
Short) from an order of the Guwahati High Court made under
Clause (b) of Section 98 of the Act declaring the election
of the appellant as Member of Legislative Assembly to be
void.
Pursuant to a notification dated 22.4.1998 issued by
the Election Commission of India by-election in Margherita
Legislative Assembly Constituency No.124 was held in the
months of May and June, 1998. Nine persons, including the
appellant and the respondent filed nomination papers. One
Ananda Ram Arandhara, the working President of the
Margherita Block Congress Committee, filed a complaint
against the candidature of the respondent submitting that
the respondent was an employee of Coal India Ltd. and as
such was disqualified from contesting election under Article
191 of the Constitution of India and Section 10 of the
Representation of the People Act, 1951 in as much as he was
holding an office of profit under the Government of India
and also performing managerial functions in a company
wherein the Government of India have not less than 25%
shares. The complaint so filed was supported by the
appellant at the scrutiny of the nomination papers held on
18.5.1998. The Returning Officer upheld the objection
recording a finding that the respondent was holding an
office of profit in a government company which office was
not included in the exemptions from disqualifications under
the Assam Legislative Members (Removal and
Disqualifications) Act, 1950. The nomination paper of the
respondent was rejected. The constituency went to polls on
3.6.1998. The appellant was declared elected on 6.6.1998.
The respondent filed an election petition under Sections
80/81 of the Act laying challenge to the appellants
election. On trial the High Court has found that the
appellant was neither holding an office of profit under the
Government of India within the meaning of Article 191(1)(a)
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of the Constitution nor was a managing agent, manager or
secretary of any company or corporation in the capital of
which the Government of India has not less than 25% shares.
The High Court has further held that the nomination paper of
the respondent could not have been rejected on the ground of
disqualification and as the same was improperly rejected,
the election of the appellant was void.
The questions arising for decision in this appeal are:
(i) whether the respondent was holding an office of profit
under the Government of India on the date of his nomination?
and,
(ii) whether the respondent was disqualified being a
manager of any company in the capital of which the
Government of India has not less than 25% shares?
The basic facts are not in controversy. It is not
disputed that the respondent was an employee of Tirap
Colliery, North Eastern Coal Fields under the Coal India
Ltd. holding the post of Clerk Grade-I. The gross salary
attached with the office was around Rs.6,000/- per month.
The Coal India Ltd. is a Government company within the
meaning of Section 617 of the Indian Companies Act, 1956
having come into existence consequent upon the
nationalisation of the coal mines under the Coal Mines
(Nationalisation) Act, 1973. Under Section 3 of the said
Act the right, title and interest of the owners in relation
to the coal mines came to vest absolutely in the Central
Government initially and then came to vest in the Government
company under Section 5 of the said Act. Memorandum of
Association and Articles of Association of Coal India Ltd.
framed in the year 1973 have been brought on record. These
documents, read in the light of the oral evidence adduced,
go to show that the Coal India Ltd. is a Private Limited
Company incorporated under the Companies Act, 1956 with 100%
share capital owned by the Central Government. The Company
has not more than 15 members. The business of the Company
is entrusted to a Board of Directors consisting of not less
than 3 and not more than 15 directors. The Chairman of the
Board is to be appointed by the President of India and other
members of the Board including the Vice-Chairman shall be
appointed by the President in consultation with the
Chairman. The President may also from time to time appoint
Functional Directors who shall be whole-time employees of
the Company. Chairman, Vice-Chairman or any whole- time or
part-time Director is liable to be removed from office,
subject to certain conditions, by the President. Certain
important matters including winding up of the Company must
be reserved for the decision of the President. The
President is empowered to issue directions and instructions,
as may be considered necessary, in regard to conduct of
business and affairs of the Company. However, power to
create posts in the scales of pay not equivalent to or
higher than the post at the Board level or to appoint,
remove or suspend managers including the General Managers,
Secretaries, officers, clerks, agents and all other
categories of employees are the powers vested in the Board
of Directors. It is clear that so far as the conduct of the
business of the Company and management of day-to-day affairs
is concerned, it is the Board of Directors of Coal India
Ltd. in whom vests the power. The President of India does
not have power or control in the matter of creation of posts
below the Board level and in the matters relating to
appointment, removal and disciplinary control over the
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incumbents holding the posts below the Board level. The
salaries, emoluments and perks of such employees are payable
from the funds of the Company. The Central Government does
not remunerate or augment the funds for such payments.
These findings of fact have not been disputed by the learned
senior counsel for the appellant.
The first issue arising for decision is whether the
respondent was holding any office of profit under the
Government of India within the meaning of Article 191(1)(a)
of the Constitution which provides that a person shall be
disqualified for being chosen as, and for being, a member of
the Legislative Assembly or Legislative Council of a State
if he holds any office of profit under the Government of
India or the Government of any State specified in the First
Schedule, other than an office declared by the Legislature
of the State by law not to disqualify its holder. The other
parts of this Article are not relevant for our purpose and
hence are not being referred to.
The phrase office of profit is not defined in the
Constitution. By a series of decisions (see Maulana Abdul
Shakur Vs. Rikhab Chand & Anr., 1958 SCR 387; M. Ramappa
Vs. Sangappa & Ors., 1959 SCR 1167; Guru Govinda Basu Vs.
Sankari Prasad Ghosal & Ors., (1964) 4 SCR 311 and
Shivamurthy Swami Inamdar & Anr. Vs. Agadi Sanganna
Andanappa & Anr., (1971) 3 SCC 870, this court has laid down
the tests for finding out whether the office in question is
an office of profit under a Government. These tests are (1)
Whether the Government makes the appointment; (2) Whether
the Government has the right to remove or dismiss the
holder; (3) Whether the Government pays the remuneration;
(4) What are the functions of the holder? Does he perform
them for the Government; and (5) Does the Government
exercise any control over the performance of those
functions?
In Guru Gobinda Basu Vs. Sankari Prasad Ghosal &
Ors., (1964) 4 SCR 311, the Constitution Bench emphasised
the distinction between the holder of an office of profit
under the Government and the holder of a post or service
under the Government and held that for holding an office of
profit under the Government, one need not be in the service
of Government and there need be no relationship of master
and servant between them. Several factors entering into the
determination of question are : (I) the appointing
authority (ii) the authority vested with power to terminate
the appointment, (iii) the authority which determines the
remuneration, (iv) the source from which the remuneration is
paid, and (v) the authority vested with power to control the
manner in which the duties of the office are discharged and
to give directions in that behalf. But all these factors
need not co-exist. Mere absence of one of the factors may
not negate the over-all test. The decisive test for
determining whether a person holds any office of profit
under the Government, the Constitution Bench holds, is the
test of appointment; stress on other tests will depend on
facts of each case. The source from which the remuneration
is paid is not by itself decisive or material.
The available case law was reviewed by this Court in
Madhuker G.E. Pankakar Vs. Jaswant Chobbildas Rajani &
Ors. - (1976) 3 SCR 832. The Court described certain
aspects as elementary : (i) for holding an office of profit
under Government one need not be in the service of
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Government and there need be no relationship of master and
servant, (ii) we have to look at the substance and not the
form; and (iii) all the several factors stressed by this
Court (in Guru Gobindas case) as determinative of the
holding of an office under Government, need not be
conjointly present. The critical circumstances, not the
total factors, prove decisive. A practical view, not
pedantic basket of tests, should act as guide.
In Satrucharla Chandrasekhar Raju Vs. Vyricherla
Pradeep Kumar Dev & Anr., (1992) 4 SCC 404, this Court has
articulated the object underlying Articles 102 (1)(a) and
191 (1)(a) of the Constitution in the following words:
in order to eliminate or reduce the risk of conflict between
the duty and interest amongst the members of the Legislature
and to ensure that the Legislature does not contain persons
who have received benefits from the Executive and who
consequently being under an obligation might be amenable to
its influence. Thus the object is to see that such an
elected member can carry on freely and fearlessly his duties
without being subjected to any kind of governmental
pressure, thereby implying that if such an elected person is
holding an office which brings him remunerations and if the
Government has a voice in his functions in that office,
there is every likelihood of such person succumbing to the
wishes of the Government. Therefore this object must be
borne in mind in interpreting these Articles. Under these
provisions the right to contest is being taken away on the
ground of the said disqualification. Such a ban on
candidature must have a substantial and reasonable nexus to
the object that is to be achieved namely the elimination of
possibility of misuse of the position. It is from this
point of view that the right to appoint and right to remove
the holder of the office in many cases becomes an important
and decisive test.
A variety of situations have come up for the
consideration of this Court wherein the Court was called
upon to apply the determinative tests so as to find out
whether a case of holding an office of profit under the
Government was made out or not. It will be advantageous to
have a brief resume of such cases. In D.R. Gurushanthappa
Vs. Abdul Khuddus Anwar & Ors., (1969) 3 SCR 425, a
Government undertaking was taken over by a Company
incorporated under the Indian Companies Act, 1956 as a going
concern and the employees working in the undertaking were
also taken over. As a result of the transfer of the
undertaking, the employees of the Government became the
employees of the Company and were covered by the definition
of workman under the Industrial Disputes Act, 1947. It
was held that such a workman ceases to be Government servant
and is not disqualified to be a candidate for election to
State Legislative Assembly under Article 191 (1)(a) of the
Constitution. The Court refused to accept the proposition
that the mere fact that the Government had control over the
Managing Director or other Directors as well as the power of
issuing directions relating to the working of the company
can lead to the inference that every employee of the company
is under the control of the Government.
In Ashok Kumar Bhattacharyya Vs. Ajoy Biswas & Ors.
- (1985) 2 SCR 50 a 3-judge Bench of this Court has held
that whether a person holds an office of profit under the
Government must be measured are judged in each case in the
light of the relevant provisions of the Act. The measure
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and nature of control exercised by the Government over the
employee must be judged in the light of facts and
circumstances of each case so as to avoid any possible
conflict between his personal interests and duties and of
the Government. An Account-in-charge of Municipality was
held not to be holder of office under the Government merely
because his appointment was subject to confirmation by
Government and he could be removed subject to sanction by
Government. In Satrucharla Chandrasekhar Raju Vs.
Vyricherla Pradeep Kumar Dev & Anr., (1992) 4 SCC 404, the
appellant was appointed as a single teacher in a primary
school run by an Integrated Tribal Development Agency (ITDA)
which is a registered society by its Project Officer. The
Project Officer of the ITDA is also the District Collector
and alone appoints teachers and has also power to remove
them same. This Court held that the ITDA being a registered
society, having its own Constitution, the Project Officer
though a District Collector, acted as a different entity and
while exercising the power to appoint or to remove teachers,
he was acting as the Project Officer. The power was not
being exercised by the Government. The Government may have
control over the appointing authority but has no direct
control over the teachers. The question of any conflict
between his duties and interest as an elected member did not
arise. It could not be said that the appellant as a teacher
can be subjected to any kind of pressure by the Government
which had neither power to appoint him nor to remove him
from service. The appellant could not be held to be holding
an office of profit under the Government within the meaning
of Article 191 (1)(a) of the Constitution.
Aklu Ram Mahto Vs. Rajendra Mahto, 1999 (3) SCC 541,
is a case very near to the case in hand. A Khalashi and a
Meter Reader of Bokaro Steel Plant contested elections for
Members of Bihar Legislative Assembly. This Court held -
The Bokaro Steel Plant is under the management and
control of Steel Authority of India Ltd. This is a company
incorporated under the Companies Act. Its shares are owned
by the Central Government. The Chairman and the Board of
Directors are appointed by the President of India. However,
the appointment and removal of workers in the Bokaro Steel
Plant is under the control of Steel Authority of India Ltd.
Their remuneration is also determined by Steel Authority of
India Ltd. The functions discharged by Steel Authority of
India Ltd. or by the Bokaro Steel Plant cannot be
considered as essential functions of the Government. In
this context a worker holding the post of a Khalashi or a
Meter Reader is not subject to the control of the Central
Government nor is the power of his appointment or removal
exercised by the Central Government. Control over his work
is exercised not by the Government, but by the Steel
Authority of India Ltd..
The Court held that the two could not be considered as
holding an office of profit under the Central Government.
The Court also tested the case on the touch stone of Section
10 of the RPA and held that the posts of Khalashi and Meter
Reader are non-executive posts. Neither of them is either
Secretary or Manager or a managing agent. None of them
attracted disqualification even under Section 10 of the RPA.
Posed with the perplexed problem - whether a person
holds an office under the Government, the first and foremost
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question to be asked is : whether the Government has power
to appoint and remove the person on and from the office? If
the answer is in the negative, no further enquiry is called
for, the basic determinative test having failed. If the
answer be a positive one, further probe has to go on finding
answers to questions framed in Shivamurthys case (supra)
and searching for how many of the factors pointed out in
Guru Gobinda Basus case (supra) do exist? The totality of
the facts and circumstances reviewed in the light of the
provisions of relevant Act, if any, would lead to an
inference being drawn if the office held is under the
Government. The inquisitive over-view-eye would finally
query: on account of holding of such office would the
Government be in a position to so influence him as to
interfere with his independence in functioning as a member
of Legislative Assembly and/or would his holding of the two
offices-one under the Government and the other being a
member of Legislative Assembly, involve a conflict of
interests inter se? This is how the issue has to be
approached and resolved.
That being the position of law, no fault can be found
with the finding arrived at by the High Court that the
respondent was not holding an office of profit under the
Government of India and therefore no disqualification
attached to him under Article 191 (1)(a) of the
Constitution. The Government of India do not exercise any
control on appointment, removal, service conditions and
functioning of the respondent. The respondent does hold an
office and there is profit attaching with the office but
such office of profit is not under the Government of
India, His being a clerk in Coal India Ltd. does not and
cannot bring any influence or pressure on him in his
independent functioning as member of Legislative Assembly.
The finding that the respondent was neither a managing agent
nor a manager nor a secretary under Coal India Ltd. though
the Company has 100% share holding of the Government, was
not seriously disputed by the learned senior counsel for the
appellant and in all fairness, rather, he did not pursue
this submission. Even otherwise, we find that the
respondent was merely a Clerk Grade-I. Occasionally in the
absence of his senior officer on account of leave or
absence, he exercised some supervisory function over his
subordinates but this would not make him a manager of the
Company. We agree with the High Court that the respondent
did not incur a disqualification under Section 10 of the RPA
also. As the respondents nomination was improperly
rejected, the appellants election was liable to be declared
void without proof of the result of the election, in so far
as it concerns the returned candidate, having been
materially affected.
The appeal is devoid of any merit and is liable to be
dismissed. It is dismissed accordingly. The order of the
High Court is affirmed. The interim order dated 25.2.2000
passed by this Court stands vacated. No order as to the
costs.