IMPORTANT POINTS
1. To find out whether a person holds an office under the Government, for the purposes of Section 10 of Representation People Act and Article 191 of the Constitution the first and foremost 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.
2. A person who is holding the post of Clerk Grade-I in Col. India Ltd., a Government of India Company, could not be said to be holding office of profit under Government of India within meaning of Article 191 of the Constitution of India so as to be disqualified from contesting election.

Headnote:Representation of People Act, 1951-Section 28(b) r/w Section 10 -Constitution of India-Article 191-Improper rejection of nomination paper on ground election petition was disqualified-Election petitioner Grade-I clerk in Coal India, a Government Company-Government had no power to appoint and remove election petitioner-Election petitioner could not be said to be holding office of profit under Government of India and therefore not disqualified-Election petitioner s nomination improperly rejected-Election of returned candidate void.
       The phrase office of profit is not defined in the Constitution. By a series of decisions 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? (Para 6)
       Posed with the perplexed problem - whether a person holds an office under the Government, the first and foremost 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 Shivamurthy Swami Inamdar & Anr. v. Agadi Sanganna Andanappa & Anr., (1971) 3 SCC 870 and searching for how many of the factors pointed out in Guru Gobinda Basu v. Sankari Prasad Ghosal & Ors., (1964) 4 SCR 311 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. (Para 13)
       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 respondent s nomination was improperly rejected, the appellant s 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. (Para 14)

JUDGMENT

R.C. Lahoti, J.-This is an appeal under Section 116A 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.

2. 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 inasmuch 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 election on 6.6.1998. The respondent filed an election petition under Sections 80/81 of the Act laying challenge to the appellant s 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) 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.

3. 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?

4. 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 c

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2000 Supreme(SC) 2020

Cases Referred (9)