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ASHOK KUMAR BHATTACHARYYA versus AJOY BISWAS & ORS

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1985 AIR 211 1985 SCR (2) 50 1985 SCC (1) 151 1984 SCALE (2)760

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ASHOK KUMAR BHATTACHARYYA V. AJOY BISWAS & ORS [1984] RD-SC 212 (15 November 1984)

MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI (J) FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION: 1985 AIR 211 1985 SCR (2) 50 1985 SCC (1) 151 1984 SCALE (2)760

CITATOR INFO :

R 1992 SC1959 (12,13,19,21)

ACT:

Constitution of India 1950 Articles 102(2) (a) and 191(1) (a).

'Office of profit under government'-Who is holder of such of office of profit under any authority or local authority subject to the Control of the State or Central Government-Whether disqualified from becoming a Member of Parliament.

Words and Phrases 'office' of profit under the government of India or the Government of any State-Meaning of-articles 58 102(1) (a) and 191(1) (a) Constitution of lndia 1950.

HEADNOTE:

Respondent No. 1 was employed in the Agartala Municipality and held the post of an Assistant Accountant.

The Commissioners of this Municipality were superseded by an order of the State Government under Section 553 of the Bengal Municipal Act, 1932 as extended to the State of Tripura in 1975. Respondent No, 1 who was under suspension at the time of supersession was dismissed from service in the disciplinary proceedings against him by the Administrator of the Municipality on 20th December, 1975.

The State Government confirmed the order of dismissal.

Respondent No. 1 was however reinstated to the post of Accountant-in-charge on 6th May, 1978 with immediate effect by the Administrator.

Respondent No. I contested the mid-term Lok Sabha election held in 1980 from the West Tripura Parliamentary Constituency, and was declared elected on 8th January, 1980.

The appellant who was a voter filed an Election Petition in the High Court contending that respondent No. 1 was disqualified for being elected as a member of the House of People as he held an office of profit under the Government of Tripura within the meaning of Article 102(1)(a) of the Constitution. The High Court dismissed the petition holding that Respondent No. 1 held an office of profit under the Government of Tripura.

51 In the appeal to this Court on the question: whether respondent No. 1 A held an office of profit under sub-clause (a) of Clause (1) of Article 102 of the Constitution.

Dismissing the Appeal.

^

HELD: 1. Whether in a particular case a person holds an office of profit under the government or not must depend upon the facts and circumstances of the relevant provisions.

To make in all cases employees of local authorities subject to the control of Government, holders of office of profit under the Government would be to obliterate the specific differentiation made under Article 58(2) of the Constitution and to extend disqualification under Article 102 (1)(a) to an extent not warranted by the language of the Article. 162 E-F] In the instant case, having regard to the provisions of the Bengal Municipal Act, 1932 as extended to Tripura, the Government does not control officers like respondent No. I and he continues to be an employee of the Municipality though his appointment is subject to the confirmation by the Government. He does not cease to be an employee of the Municipality. Local authority as such or any other authority does not cease to become independent entity separate from Government. [62 D-C]

2. Respondent No. I was not at the relevant time a holder of office of profit under the Government. Some amount of control is recognised even in a local authority which is taken account of under Article 58. The High Court rightly held that respondent No. 1 did not hold office of profit under the Government of Tripura on the date of filing of the nomination on an analysis of relevant provisions of the Act.

[62 G-H]

3. The object of enacting provisions like Article 102(1)(a) and Article 191(1)(a) is that a person who is elected to a Legislature or Parliament should be free to carry on his duties fearlessly without being subjected to any kind of government pressure. The term "office of profit under the Government" used in clause (a) is an expression of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. The measure of control by the Government over a local authority should be judged in order to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the elected bodies. [61 G-H]

4. It will be clear from reference to Item S in List II of VII Schedule of the Constitution that Municipality are separately mentioned in contra-distinction of the State government. Therefore, a local authority as such is separate and distinct. This becomes further clear from Article 58(2) of the Constitution.

[57 D]

5. A person who is holding an office of profit either under the Government of India or the Government of the State or any other local or other authority subject to the control the said Governments is disqualified from becoming a President but if a person holds an office of profit under the Government of India or the Government of any State, he only is disqualified from going a member of Parliament. A holder of the office of profit under any 52 authority or local authority subject to the control of the State or Central Government is as such not disqualified from becoming a Member of Parliament.

[58 C-D] D. R. Gurushantappa v. Abdul Khuddus Anwar & Ors.

[1969] 3 S.C.R. 22S, Gurugobinda Basu v. Sankari Prasad Ghosal & ors. [1964] 4 S.C.R. 311. Maulana Abdul Shakur v.

Rikhab Chand [1958] S.C.R. 387, Surya Kant Roy v. Immamul Hai Khan [19751 3 S.C.R., 909, and Madhuker G.E. Pankakar v.

Jaswant Chobildas Rajni & Ors. [1975]3 S.C.R. p. 832 at page 851, referred to.

Biharilal Dobray v. Roshan Lal Dodray [1984]1 S.C.C.

551, explained.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1724 of 1982.

From the Judgment and order dated the 15th March, 1982 of the Gauhati High Court (Agartala Bench) in E.P. No. 2 of 1980.

G.L. Sanghi, S K. Nandy and S. Parekh, for the Appellant.

R.K. Garg and S.C. Birla for the Respondent.

The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal arises out of the judgment and an order of the Gauhati High Court in an election petition. The petitioner appellant was a voter in the West Tripura Parliamentary Constituency from No. 7 Ramnagar Assembly Segment. He contested the mid-term Lok Sabha election held in 1980 from the West Tripura Parliamentary Constituency as a nominee of congress (1).

There were six candidates including the petitioner contesting the said election. The respondent No. 1 was a C.P.I.(M) candidate. 8th December, 1979 was the date of filing of the nominations. Nominations were scrutinised on 11th December, 1979 and the withdrawal date was 13th December, 1979. On 6th January, 1980 the polling was held and the result of the election was declared on 8th January, 1980. The main contest was between the petitioner/appellant and the respondent No. 1, Ajoy Biswas. The respondent No. I had secured 198335 votes as against the appellant who had secured 1,42,990 votes. The respondent No. 1 was declared elected.

The only point on which the election petition by the appellant/ petitioner was pressed before the High Court and the only point urged before us in this appeal, is whether the respondent No. 1 was disqualified for being elected as a member or the House of People as he held an office of profit under the Government of Tripura within the meaning of Article 102(t)(a) of the Constitution. On the relevant date, respondent No. 1 was the Accountant-in-charge of the Agartala 53 Municipality. Therefore, the question involved in this appeal, is, A whether an Accountant-in-charge of the Agartala Municipality holds all office of profit within the meaning of Article 102(1)(a) of the Constitution In order to determine this question, it will be necessary to refer to certain facts.

Respondent No. 1 was employed in Agartala Municipality and held the post carrying the scale of pay of Rs. 80-180 per month. The Commissioners of the Agartala Municipality ware superseded by an order of the State Government under Section 553 of the Bengal Municipal Act, 1932 as extended to the State of Tripura in 1975. The effect of Section 554 of the said Act is that during the period of supersession the powers and duties of the Commissioners and Chairman shall be exercised and performed by the Administrator appointed by the State Government under that section. The respondent No.

1 who was under suspension at the time of supersession was dismissed from service in the disciplinary proceedings against him by the Administrator of the Agartala, Municipality on 20th December, 1975. The State Government thereafter had confirmed the order of dismissal. When the Left Front Government came in power in the State of Tripura, the respondent No. was reinstated to the post of Accountant- in-charge of Agartala Municipality on 6th May, 1978 with immediate effect by the Administrator. So at the relevant time he was an Assistant Accountant and was Accountant-in- charge under the Agartala Municipality drawing a monthly salary of Rs. 200.

It is necessary to briefly note some of the relevant provisions of the said Act in view of the contentions urged in this appeal. Proviso (ii) to Section 66(2) of the said Municipal Act provides that no appointment carrying a monthly salary of more than two hundred rupees or a salary rising by periodical increments to more than two hundred rupees shall be created without the sanction of the State Government, and every nomination to, and dismissal from, any such nomination shall be subject to confirmation by the State Government. It appears that the Deputy Secretary to the Government of Tripura by his letter dated 6th May 1978 had conveyed to the Administrator, Agartala Municipality, decision of the Government for cancellation of the order of confirmation of the dismissal communicated to him on l9th December, 1975. As a result, the cancellation order ceased to be effective and respondent No. I was reinstated and it was further provided that the period between the date of dismissal all the date of reinstatement would he treated as period spent on duty for all purposes.

54 The Act further provides that there shall be established for each Municipality a body of Commissioners consisting of such members or Commissioners not being more than twenty nor less than six as the State Government may specify in the notification constituting the municipality.

Such Commissioners shall be a body corporate by the name of the Municipal Commissioners of the place by reference to which the Municipality is known, having perpetual succession and a common seal, and by that name shall sue and be sued.

The Municipality consists of the elected Commissioners. A Chairman is elected by the Commissioners from amongst the Commissioners within 30 days from the date of publication of the result of the general election of the Commissioners in the Municipality failing which the State Government has the power to appoint one of the Commissioners to be Chairman. A Vice-Chairman is also to be elected from amongst themselves.

The Chairman is empowered within certain limitations to transact the business connected with the Act and exercise all the powers vested in the Commissioners under the Act, except as otherwise provided. The Commissioners are to hold office for four years commencing from the date of the first meeting of the newly formed body of Commissioners after a general election of Commissioners in the Municipality at which a quorum is present. An elected Chairman or Vice- Chairman may at any time be removed from his office by a resolution of the Commissioners as laid down in section 61(2) or (3) of the said Act. The Act also empowered the State Government to remove an elected Commissioner on certain grounds set out in section 62 of the said Act.

In view of the contentions raised in this appeal, it would be relevant to refer and set out section 66 of the said Act which is as follows:

"66. APPOINTMENT OF SUBORDINATE OFFICERS.

(1) The Commissioners at a meeting may, subject to the provisions of this Act and the rules made thereunder from time to time, determine what officers and what servants of the Commissioners are necessary for the municipality and may fix the salaries and allowances to be paid and granted to such officers and servants.

(2) Subject to the scale of establishment approved by the Commissioners under sub-section (1), the Chairman shall have power to appoint such persons as he may think fit, and 55 from time to time to remove such persons and appoint A others in their places:

Provided as follows:

(i) a person shall not be appointed to an office carrying a monthly salary of more than fifty rupees or a salary rising by periodical Increments to more than fifty rupees without the sanction of the Commissioners at a meeting, and an officer or servant whose post carries a monthly salary of more than twenty rupees shall not be dismissed without such sanction;

(ii) no appointment carrying a monthly salary of more than two hundred rupees or a salary rising by periodical increments to more than two hundred rupees shall be created without the sanction of the State Government, and every nomination to, and dismissal from, any such appointment shall be subject to confirmation by the State Government." (iii) no person holding an office carrying a monthly salary of one hundred rupees or more shall be dismissed unless such dismissal is sanctioned by a resolution of the Commissioners passed at a special meeting called for the purpose and, except with the consent of the State Government unless such resolution has been supported by the votes of not less than two-thirds of the total number of Commissioners holding office for the time being.

(3) Notwithstanding anything contained in sub- section (2), the creation of and nomination to or suspension, removal or dismissal from, the post of Executive officer shall, irrespective of the salary assigned to the post, be subject to confirmation by the State Government." The Act further provides that besides the officers and the servants mentioned above, all or any of the officers mentioned in section 67 may be appointed by the Commissioners. In certain circumstances, the Act provides, that the State Government may have an Executive officer for such period as may be specified in the Notification. Section 93 provides that as soon as may be after the first 56 day of April in every year not later than such date as may be fixed by the State Government, the Commissioners shall submit to the State Government a report on the administration of the Municipality during the preceding year in such form and with such details as the State Government may direct, and a copy of the report shall also be submitted by the Commissioners to the District Magistrate. The Commissioners of a Municipality may acquire and hold property within or without the limits of the Municipality, and all property within the Municipality of the nature specified in section 95, other than property maintained by the Central Government or any other local Authority, are vested in and belong to the Commissioners, and are under their direct management and control. By Section 102 of the said Act, the Commissioners are empowered to purchase, take on lease or otherwise acquire any land for the purposes of the said Act, and may sell, lease, exchange or otherwise dispose of any land not required for such purposes. They are also empowered to enter into and perform any contract necessary for the purpose of the Act. A fund called the Municipal fund is constituted for each Municipality and all sums received by or on behalf of the Commissioners under the said Act or otherwise, and the balance, if any, standing at the credit of the Municipal fund of the Municipality at the commencement of the said Act, are credited to the said fund.

The purposes to which the Municipal Fund is applicable are enumerated in section 108 of the Act. If any work is estimated to cost above ten thousand rupees, the State Government may require the plans and estimates of such works to be submitted for its approval, or for the approval of any servant of the Government before such work, in such form as it might prescribe.

There are provisions for imposing taxes, tolls and fees under section 123 of the said Act and to make assessment of the rate on the annual value of the holdings under section 128 of the said Act. Powers are conferred to impose taxes.

There are other provisions for raising fund for the Municipality by way of charging fee for registration etc.

The Act empowers raising of funds for the Municipality for carrying out the purposes of the said Act.

In this connection it may be relevant to refer to clause (31) of section 3 of the General Clauses Act, 1897, and in view of the provisions of the Act it was held by the High Court that Agartala Municipality is a 'Local authority' within the meaning of that expression as defined in clause (31) of section 3 of the General Clauses Act, 1897. We are of the opinion that the High Court was right.

57 In view of the facts narrated before, it was found by the High A Court and in our opinion rightly that the respondent No. I was at the relevant time holding an office of profit under a local municipality. Section 66 which we have set out here in before indicates that the appointment of persons to the category of post held by respondent No. 1 was to be made by the Commissioners of Municipality, but the appointment was subject to the confirmation by the State Government. The High Court held and we are of the opinion rightly that the respondent No. 1 was an officer of the Commissioners. Section 63 of the said Act provides that such officers and servants of the Commissioners shall be subordinates to the Executive officer appointed by the Commissioners. The respondent No. I was appointed by Commissioners, though sanction of the Government was obtained. He could be removed by the Commissioners again subject to the sanction of the Government. He was paid out of the municipal funds which the Municipality was and is competent to raise. From the analysis of the provisions of the Act it is clear that though the Government exercises certain amount of control and supervision, the respondent No. I was not an employee of the Government nor was he required to perform governmental functions for the Government.

Municipalities are separately mentioned in contradistinction of the State Government as it will be clear from reference to Item S in List II of the VII Schedule of the Constitution. Therefore, a local authority as such is a separate and distinct entity. This will become further clear from Article 58(2) of the Constitution.

The question involved in this appeal is whether respondent No. 1 held an office of profit under sub-clause (a) of Clause (1) of Article 102 of the Constitution. Sub- clause (a) of Article 102 (1) provides as follows:- "Art. 102-Disqualification for membership.- (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament- (a) If he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;" In contra-distinction, clause (2) of Article 58 which mentions disqualifications for election as President provides as follows :- 58 "58 Disqualifications for elections President:

(1).....

(2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments." In fact a person who is holding an office of profit either under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments is disqualified from becoming the President but if a person holds an office of profit under the Government of India or the Government of any State he only is disqualified from being a member of Parliament. A holder of the office of profit under any local or other authority subject to the control of the State or Central Government is as such not disqualified from becoming a Member of Parliament. Keeping in view these provisions, it is necessary consider the question whether the respondent No. 1 was holding an office of profit under the State Government.

In the case of D. R. Gurushantappa v. Abdul Khuddus Anwar & Ors.,(l) this Court had to consider whether a candidate employed in a company owned by the Government was disqualified under Article 102(1) (a) and 191 (l)(a) of the Constitution and in this connection considered the relevant provisions of Articles 102(1) (a) and 191(1) (a) of the Constitution. After discussing the case of Gurugobinda Basu v. Sankari Prasad Ghosal & ors.(a) and the decision in the case of Maulana Abdul Shakur v. Rikhab Chand,(3) this Court come to the conclusion that the mere fact that the Government had control over the Managing Director and other Directors as well as the power of issuing directions relating to the working of the company could not lead to the inference that every employee of the company was under the control of the Government.

The true principle behind this provision in Article 102 (1) (a) is that there should not be any conflict between the duties and the interest of an elected member. Government controls various activities (1) [1969] 3 S.C.R. 425 (2) [1964] 4 S.C.R. 311 (3) [1958] 3 S.C.R. 387 59 in various spheres and in various measures. But to judge whether A employees of any authority or local authorities under the control of Government become Government employees or not or holders of office of profit under the Government the measure and nature of control exercised by the Government over the employee must be judged in the light of the facts and circumstances in each case so as to avoid any possible conflict between his personal interests and duties and of the Government. This position was further examined in the case of Surya Kant Royv.lmamul Hai khan.(1) There under Bihar and Orissa Mining Settlement Act, 1920, a Board called the Mines Board of Health may be established to provide for the control and sanitation of any area within which the persons employed in a mine reside and for the prevention therein of the out-break and spread of epidemic diseases.

After analysing the facts of that case, this Court held that the mere fact that the candidate was appointed Chairman of the Board by State Government would not make him a person holding an office of profit under the State Government.

There the Supreme Court referred to the decision in the case of Shivamurthy Swami v. Agadi Sanganna Andanappaa.(2) This Court in Surya Kant Roy v. Imamul Hai Khan (supra) observed at page 911 as follows:- "Here again it is to be pointed out that the Government does not pay the remuneration nor does the holder perform his functions for the Government. To hold otherwise would be to hold that local bodies like Municipal Councils per- form their functions for the Government though in one sense the functions they perform are governmental functions." in the case of D.R. Gurushantappa v. Abdul Khuddus Anwar & Ors. (supra) mentioned here in before, at page 434 this Court observed as follows:- "Thus, in the case of election as President or Vice President, the disqualification arises even if the candidate is holding an office of profit under a local or any other authority under the control of the Central Government or the State Government, whereas, in the case of a candidate for election as a Member of any of the Legislatures, no such disqualification is laid down by the Constitution if the office of profit is held under a local or any other authority under (1) [1975] 3 S.C.R. 909 (2) [1971] 3 S.C.C. 870 60 the control of the Governments and not directly under any of the Governments. This clearly indicates that in the case of eligibility for election as a member of a Legislature, the holding of an office of profit under a corporate body like a local authority does not bring about disqualification even if that local authority be under the control of the Government. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the officer employed by such authority does not disqualify that officer from being candidate for election as a member of the Legislature in the manner in which such disqualification comes into existence for being elected as the President or the Vice-President. The Company, in the present case, no doubt did come under the control of the Government and respondent No. I was holding an office of profit under the Company; but, in view of the distinction indicated above, it is clear that the disqualification laid down under Art. 191 (1) (a) of the Constitution was not intended to apply to the holder of such an office of profit." This view was again reiterated by this Court in the case of Madhuker G.E. Panakakar v. Jaswant Chabbildas Rajani & Ors.(1) where this Court observed as follows:- "The core question that comes to the fore from the survey of the panorama of case law is as to when we can designate a person gainfully engaged in some work having a nexus with Government as the holder of an 'office of profit' under Government in the setting of disqualification , for candidature for municipal or like elections. The holding of an office denotes an office and connotes its holder and this duality implies the existence of the office as an independent continuity and an incumbent there of for the once.

Certain aspects appear to be elementary. For holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant (Gurugobinda supra). Similarly, we have to look at the substance, not the form. Thirdly, all the several factors stressed by this Court as determinative of the holding of an 'office' under Government, need not be con- (1) [1976] 3 S.C.R. 832 at 851 61 jointly present, the critical circumstances, not the total factors, prove decisive. A practical view not pedantic basket of tests, should guide in arriving at a sensible conclusion." In a recent decision of this Court in the case of Biharilal Dobray v. Roshan Lal Dobray,1 this Court was concerned with the question whether an office profit was held directly under the Government in the facts of that case. There was an assistant teacher of a Basic Primary School run by U.P. Board of Basic Education under U.P. Basic Education Act, and it was held that it was an office of profit under the State Government within the meaning of Article 191 (1) (a) of the Constitution and therefore he was disqualified from election. There the respondent was originally employed as an assistant teacher in a Basic Primary School which was being run and managed by the Zila Parishad. On coming into force of the U.P. Basic Education Act, 1972, he became an employee of the Board of Basic Education under Section 9 (1) of the Act. While holding the post of an assistant teacher as such he filed his nomination for his election to the State Legislative Assembly. But the Returning officer rejected his nomination paper on the ground that he was holding an office of profit under the State Government and hence he was disqualified under Article 191 (1) (a) for being elected as an MLA.

Article 191 (1) (a) is in terms pari materia with Article 102 (1) (a) of the Constitution regarding the election to the State Assembly. The respondent herein filed an election petition and the High Court allowed the same declaring that the election of the appellant by rejecting the nomination of the respondent was void. The appellant therefore preferred the appeal to this Court. This Court allowed the appeal and it was held that the respondent was holding an office of profit under the State Government.

As we have mentioned before, the object of enacting provisions like Article 102 (1) (a) and Article 191(1) (a) is that a person who is elected to Parliament or a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. The term ' office of profit under the Government" used in clause (a) of Article 1O2(1) is an expression of wider import than a post in connection with the union or of any State which is dealt with in part XIV of the Constitution. The measure of control by the Government over a local authority should be judged in order to eliminate the possibility of conflict between duty and interest and to (1) [19841 I S.C.C. 155 62 maintain the purity of the elected bodies. After reviewing various cases, and the provisions of the various sections of the U.P. Basic Education Act, 1972 especially in view of section 13 of the Act, this Court held in the last mentioned case that the measure of control was such that U.P.

Education Board was an authority which was not truly independent of the Government and every employee of the Board was in fact holding an office of profit under the State Government. The statement of objects and Reasons of the U.P. Basic Education Act, 1972 and sections 4, 6, 7, 13 and 19 all of which have been set out in extenso in that decision make that conclusion irresistible.

For determination of the question whether a person holds an office of profit under the Government each case must be measured and judged in the light of the relevant provisions of the Act. Having regard to the provisions of the Bengal Municipal Act, 1932 as extended to Tripura, the provisions of which have been set out herein before, we are of the opinion that the State Government does not exercise any control over officers like respondent No. 1 and that he continues to be an employee of the Muncipality though his appointment is subject to the confirmation by the Government. Just by reason of this condition an employee of a local authority does not cease to be an employee of the Muncipality. Local authority as such or any other authority does not cease to become independent entity separate from Government. Whether in a particular case it is so or not must depend upon the facts and circumstances of the relevant provisions. To make in all cases employees of local authorities subject to the control of Government and to treat them as holders of office of profit under the Government would be to obliterate the specific differentiation made under Article 58(2) and Article 102 (1) (a) of the Constitution and to extend disqualification under Article 58 (2) to one under Article 102 (1) (a) to an extent not warranted by the language of the Article.

Having noted the relevant provisions, we are of the opinion that the respondent No. 1 was not at the relevant time a holder of office of profit under the Government. Some amount of control is recognised oven in a local authority which is taken account of under Article 58. The High Court held that respondent No. I did not hold office of profit under the Government of Tripura on the date of filing of the nomination on an analysis of relevant provisions of the Act which we 63 have set out hereinbefore. We are in agreement with this view of the. High Court.

In the premises, respondent No. 1 was not disqualified from filing his nomination. The appeal, therefore, fails and is accordingly dismissed with costs.


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