{"id":89037,"date":"2000-12-12T00:00:00","date_gmt":"2000-12-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pradyut-bordoloi-vs-swapan-roy-on-12-december-2000-2"},"modified":"2018-10-19T00:18:55","modified_gmt":"2018-10-18T18:48:55","slug":"pradyut-bordoloi-vs-swapan-roy-on-12-december-2000-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pradyut-bordoloi-vs-swapan-roy-on-12-december-2000-2","title":{"rendered":"Pradyut Bordoloi vs Swapan Roy on 12 December, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Pradyut Bordoloi vs Swapan Roy on 12 December, 2000<\/div>\n
Author: R Lahoti<\/div>\n
Bench: R.C.Lahoti, Shivarj V. Patil<\/div>\n
           CASE NO.:\nAppeal (crl.) 1001  of 2000\n\n\nPETITIONER:\nPRADYUT BORDOLOI\n\n\tVs.\n\nRESPONDENT:\nSWAPAN ROY\n\nDATE OF JUDGMENT:\t12\/12\/2000\n\nBENCH:\nR.C.Lahoti, Shivarj V. Patil\n\n\n\n\nJUDGMENT:\n<\/pre>\n
R.C.  Lahoti, J.\n<\/p>\n
L…..I………T…….T…….T…….T…….T…….T..J<\/p>\n
      This  is\tan  appeal  under   Section  116  A  of\t the
\nRepresentation of the People Act, 1951 (hereinafter, RPA for
\nShort)\tfrom an order of the Guwahati High Court made  under
\nClause\t(b) of Section 98 of the Act declaring the  election
\nof  the\t appellant as Member of Legislative Assembly  to  be
\nvoid.\n<\/p>\n
      Pursuant\tto a notification dated 22.4.1998 issued  by
\nthe  Election Commission of India by-election in  Margherita
\nLegislative  Assembly  Constituency No.124 was held  in\t the
\nmonths\tof May and June, 1998.\tNine persons, including\t the
\nappellant  and the respondent filed nomination papers.\t One
\nAnanda\t Ram  Arandhara,  the\tworking\t President  of\t the
\nMargherita  Block  Congress  Committee,\t filed\ta  complaint
\nagainst\t the  candidature of the respondent submitting\tthat
\nthe  respondent\t was an employee of Coal India Ltd.  and  as
\nsuch was disqualified from contesting election under Article
\n191  of\t the  Constitution of India and Section\t 10  of\t the
\nRepresentation\tof the People Act, 1951 in as much as he was
\nholding\t an  office of profit under the Government of  India
\nand  also  performing  managerial  functions  in  a  company
\nwherein\t the  Government  of India have not  less  than\t 25%
\nshares.\t  The  complaint  so  filed  was  supported  by\t the
\nappellant  at the scrutiny of the nomination papers held  on
\n18.5.1998.   The  Returning  Officer  upheld  the  objection
\nrecording  a  finding  that the respondent  was\t holding  an
\noffice\tof  profit in a government company which office\t was
\nnot  included in the exemptions from disqualifications under
\nthe    Assam\tLegislative\t  Members    (Removal\t and
\nDisqualifications)  Act, 1950.\tThe nomination paper of\t the
\nrespondent  was rejected.  The constituency went to polls on
\n3.6.1998.   The appellant was declared elected on  6.6.1998.
\nThe  respondent\t filed an election petition  under  Sections
\n80\/81  of  the\tAct  laying  challenge\tto  the\t appellants
\nelection.   On\ttrial  the  High Court has  found  that\t the
\nappellant  was neither holding an office of profit under the
\nGovernment  of India within the meaning of Article 191(1)(a)
\nof  the\t Constitution nor was a managing agent,\t manager  or
\nsecretary  of  any company or corporation in the capital  of
\nwhich  the Government of India has not less than 25% shares.
\nThe High Court has further held that the nomination paper of
\nthe respondent could not have been rejected on the ground of
\ndisqualification  and  as the same was improperly  rejected,
\nthe election of the appellant was void.\n<\/p>\n
      The questions arising for decision in this appeal are:\n<\/p>\n
(i)  whether the respondent was holding an office of  profit
\nunder the Government of India on the date of his nomination?
\nand,<\/p>\n
      (ii)  whether the respondent was disqualified being  a
\nmanager\t of  any  company  in\tthe  capital  of  which\t the
\nGovernment of India has not less than 25% shares?\n<\/p>\n
      The  basic  facts are not in controversy.\t It  is\t not
\ndisputed  that\tthe  respondent\t was an\t employee  of  Tirap
\nColliery,  North  Eastern Coal Fields under the\t Coal  India
\nLtd.   holding the post of Clerk Grade-I.  The gross  salary
\nattached  with\tthe office was around Rs.6,000\/- per  month.
\nThe  Coal  India  Ltd.\tis a Government company\t within\t the
\nmeaning\t of  Section 617 of the Indian Companies  Act,\t1956
\nhaving\t come\tinto\texistence    consequent\t  upon\t the
\nnationalisation\t of  the  coal mines under  the\t Coal  Mines
\n(Nationalisation)  Act,\t 1973.\tUnder Section 3 of the\tsaid
\nAct  the right, title and interest of the owners in relation
\nto  the\t coal mines came to vest absolutely in\tthe  Central
\nGovernment initially and then came to vest in the Government
\ncompany\t under\tSection\t 5 of the said Act.   Memorandum  of
\nAssociation  and Articles of Association of Coal India\tLtd.
\nframed\tin the year 1973 have been brought on record.  These
\ndocuments,  read in the light of the oral evidence  adduced,
\ngo  to\tshow that the Coal India Ltd.  is a Private  Limited
\nCompany incorporated under the Companies Act, 1956 with 100%
\nshare  capital owned by the Central Government.\t The Company
\nhas  not more than 15 members.\tThe business of the  Company
\nis  entrusted to a Board of Directors consisting of not less
\nthan  3 and not more than 15 directors.\t The Chairman of the
\nBoard is to be appointed by the President of India and other
\nmembers\t of  the Board including the Vice-Chairman shall  be
\nappointed   by\tthe  President\tin  consultation  with\t the
\nChairman.   The President may also from time to time appoint
\nFunctional  Directors  who shall be whole-time employees  of
\nthe  Company.  Chairman, Vice-Chairman or any whole- time or
\npart-time  Director  is\t liable to be removed  from  office,
\nsubject\t to  certain conditions, by the President.   Certain
\nimportant  matters including winding up of the Company\tmust
\nbe  reserved  for  the\tdecision   of  the  President.\t The
\nPresident is empowered to issue directions and instructions,
\nas  may\t be  considered necessary, in regard to\t conduct  of
\nbusiness  and  affairs\tof the Company.\t However,  power  to
\ncreate\tposts  in  the scales of pay not  equivalent  to  or
\nhigher\tthan  the  post at the Board level  or\tto  appoint,
\nremove\tor suspend managers including the General  Managers,
\nSecretaries,   officers,  clerks,  agents   and\t all   other
\ncategories  of employees are the powers vested in the  Board
\nof Directors.  It is clear that so far as the conduct of the
\nbusiness of the Company and management of day-to-day affairs
\nis  concerned,\tit is the Board of Directors of\t Coal  India
\nLtd.   in whom vests the power.\t The President of India does
\nnot have power or control in the matter of creation of posts
\nbelow  the  Board  level  and in  the  matters\trelating  to
\nappointment,  removal  and  disciplinary  control  over\t the
\nincumbents  holding  the posts below the Board\tlevel.\t The
\nsalaries, emoluments and perks of such employees are payable
\nfrom  the funds of the Company.\t The Central Government does
\nnot  remunerate\t or  augment the funds\tfor  such  payments.
\nThese findings of fact have not been disputed by the learned
\nsenior counsel for the appellant.\n<\/p>\n
      The  first  issue arising for decision is whether\t the
\nrespondent  was\t holding  any  office of  profit  under\t the
\nGovernment  of India within the meaning of Article 191(1)(a)
\nof  the\t Constitution which provides that a person shall  be
\ndisqualified for being chosen as, and for being, a member of
\nthe  Legislative Assembly or Legislative Council of a  State
\nif  he\tholds any office of profit under the  Government  of
\nIndia  or the Government of any State specified in the First
\nSchedule,  other than an office declared by the\t Legislature
\nof the State by law not to disqualify its holder.  The other
\nparts  of this Article are not relevant for our purpose\t and
\nhence are not being referred to.\n<\/p>\n
      The  phrase  office of profit is not defined in  the
\nConstitution.\tBy a series of decisions (see Maulana  Abdul
\nShakur\tVs.  Rikhab Chand & Anr., 1958 SCR 387;\t M.  Ramappa
\nVs.   Sangappa & Ors., 1959 SCR 1167;  Guru Govinda Basu Vs.
\nSankari\t Prasad\t Ghosal\t &  Ors.,   (1964)  4  SCR  311\t and
\nShivamurthy  Swami  Inamdar  &\tAnr.   Vs.   Agadi  Sanganna
\nAndanappa & Anr., (1971) 3 SCC 870, this court has laid down
\nthe  tests for finding out whether the office in question is
\nan office of profit under a Government.\t These tests are (1)
\nWhether\t the Government makes the appointment;\t(2)  Whether
\nthe  Government\t has  the  right to remove  or\tdismiss\t the
\nholder;\t  (3) Whether the Government pays the  remuneration;
\n(4)  What are the functions of the holder?  Does he  perform
\nthem  for  the\tGovernment;   and (5)  Does  the  Government
\nexercise   any\tcontrol\t over\tthe  performance  of   those
\nfunctions?\n<\/p>\n
      In  Guru\tGobinda\t Basu Vs.  Sankari Prasad  Ghosal  &
\nOrs.,  (1964)  4 SCR 311, the Constitution Bench  emphasised
\nthe  distinction  between the holder of an office of  profit
\nunder  the  Government and the holder of a post\t or  service
\nunder  the Government and held that for holding an office of
\nprofit\tunder the Government, one need not be in the service
\nof  Government\tand there need be no relationship of  master
\nand servant between them.  Several factors entering into the
\ndetermination\tof  question  are  :   (I)  the\t  appointing
\nauthority  (ii) the authority vested with power to terminate
\nthe  appointment,  (iii) the authority which determines\t the
\nremuneration, (iv) the source from which the remuneration is
\npaid, and (v) the authority vested with power to control the
\nmanner\tin which the duties of the office are discharged and
\nto  give  directions in that behalf.  But all these  factors
\nneed  not co-exist.  Mere absence of one of the factors\t may
\nnot  negate  the  over-all  test.   The\t decisive  test\t for
\ndetermining  whether  a\t person holds any office  of  profit
\nunder  the Government, the Constitution Bench holds, is\t the
\ntest  of appointment;  stress on other tests will depend  on
\nfacts  of each case.  The source from which the remuneration
\nis paid is not by itself decisive or material.\n<\/p>\n
      The  available case law was reviewed by this Court  in
\nMadhuker  G.E.\t Pankakar Vs.  Jaswant Chobbildas  Rajani  &
\nOrs.   –  (1976)  3 SCR 832.  The  Court  described  certain
\naspects as elementary :\t (i) for holding an office of profit
\nunder  Government  one\tneed  not  be  in  the\tservice\t  of
\nGovernment  and there need be no relationship of master\t and
\nservant,  (ii) we have to look at the substance and not\t the
\nform;\tand  (iii) all the several factors stressed by\tthis
\nCourt  (in  Guru  Gobindas case) as  determinative  of\tthe
\nholding\t of  an\t office\t under\tGovernment,  need  not\tbe
\nconjointly  present.   The critical circumstances,  not\t the
\ntotal  factors,\t prove\tdecisive.   A  practical  view,\t not
\npedantic basket of tests, should act as guide.\n<\/p>\n
      In  Satrucharla  Chandrasekhar  Raju  Vs.\t  Vyricherla
\nPradeep\t Kumar Dev & Anr., (1992) 4 SCC 404, this Court\t has
\narticulated  the  object underlying Articles 102 (1)(a)\t and
\n191  (1)(a) of the Constitution in the following words:
\nin order to eliminate or reduce the risk of conflict between
\nthe duty and interest amongst the members of the Legislature
\nand  to ensure that the Legislature does not contain persons
\nwho  have  received  benefits  from the\t Executive  and\t who
\nconsequently  being under an obligation might be amenable to
\nits  influence.\t  Thus\tthe object is to see  that  such  an
\nelected member can carry on freely and fearlessly his duties
\nwithout\t  being\t subjected  to\t any  kind  of\tgovernmental
\npressure, thereby implying that if such an elected person is
\nholding\t an office which brings him remunerations and if the
\nGovernment  has\t a  voice in his functions in  that  office,
\nthere  is every likelihood of such person succumbing to\t the
\nwishes\tof  the Government.  Therefore this object  must  be
\nborne  in mind in interpreting these Articles.\tUnder  these
\nprovisions  the right to contest is being taken away on\t the
\nground\tof  the\t said  disqualification.    Such  a  ban  on
\ncandidature  must have a substantial and reasonable nexus to
\nthe  object that is to be achieved namely the elimination of
\npossibility  of\t misuse\t of the position.  It is  from\tthis
\npoint  of view that the right to appoint and right to remove
\nthe  holder of the office in many cases becomes an important
\nand decisive test.\n<\/p>\n
      A\t variety  of  situations  have\t come  up  for\t the
\nconsideration  of  this Court wherein the Court\t was  called
\nupon  to  apply\t the determinative tests so as to  find\t out
\nwhether\t a  case  of holding an office of profit  under\t the
\nGovernment  was made out or not.  It will be advantageous to
\nhave  a brief resume of such cases.  In D.R.  Gurushanthappa
\nVs.   Abdul  Khuddus  Anwar  & Ors., (1969)  3\tSCR  425,  a
\nGovernment   undertaking  was  taken   over  by\t a   Company
\nincorporated under the Indian Companies Act, 1956 as a going
\nconcern\t and  the employees working in the undertaking\twere
\nalso  taken  over.   As\t a result of  the  transfer  of\t the
\nundertaking,  the  employees  of the Government\t became\t the
\nemployees  of the Company and were covered by the definition
\nof  workman  under the Industrial Disputes Act, 1947.\tIt
\nwas held that such a workman ceases to be Government servant
\nand  is\t not disqualified to be a candidate for election  to
\nState  Legislative Assembly under Article 191 (1)(a) of\t the
\nConstitution.\tThe Court refused to accept the\t proposition
\nthat  the mere fact that the Government had control over the
\nManaging Director or other Directors as well as the power of
\nissuing\t directions  relating to the working of the  company
\ncan lead to the inference that every employee of the company
\nis under the control of the Government.\n<\/p>\n
      In  Ashok Kumar Bhattacharyya Vs.\t Ajoy Biswas &\tOrs.\n<\/p>\n
–  (1985)  2 SCR 50 a 3-judge Bench of this Court  has\theld
\nthat  whether  a person holds an office of profit under\t the
\nGovernment  must be measured are judged in each case in\t the
\nlight  of  the relevant provisions of the Act.\tThe  measure
\nand  nature of control exercised by the Government over\t the
\nemployee   must\t be  judged  in\t  the  light  of  facts\t and
\ncircumstances  of  each\t case so as to\tavoid  any  possible
\nconflict  between  his personal interests and duties and  of
\nthe  Government.   An Account-in-charge of Municipality\t was
\nheld  not to be holder of office under the Government merely
\nbecause\t his  appointment  was subject\tto  confirmation  by
\nGovernment  and\t he could be removed subject to sanction  by
\nGovernment.    In   Satrucharla\t  Chandrasekhar\t  Raju\t Vs.
\nVyricherla  Pradeep Kumar Dev & Anr., (1992) 4 SCC 404,\t the
\nappellant  was\tappointed as a single teacher in  a  primary
\nschool run by an Integrated Tribal Development Agency (ITDA)
\nwhich  is a registered society by its Project Officer.\t The
\nProject\t Officer of the ITDA is also the District  Collector
\nand  alone  appoints teachers and has also power  to  remove
\nthem same.  This Court held that the ITDA being a registered
\nsociety,  having  its own Constitution, the Project  Officer
\nthough a District Collector, acted as a different entity and
\nwhile exercising the power to appoint or to remove teachers,
\nhe  was\t acting as the Project Officer.\t The power  was\t not
\nbeing exercised by the Government.  The Government may have
\ncontrol\t over  the  appointing authority but has  no  direct
\ncontrol\t over  the teachers. The question of  any  conflict
\nbetween his duties and interest as an elected member did not
\narise.\tIt could not be said that the appellant as a teacher
\ncan  be subjected to any kind of pressure by the  Government
\nwhich  had  neither power to appoint him nor to\t remove\t him
\nfrom service.  The appellant could not be held to be holding
\nan  office of profit under the Government within the meaning
\nof Article 191 (1)(a) of the Constitution.\n<\/p>\n
      Aklu  Ram Mahto Vs.  Rajendra Mahto, 1999 (3) SCC 541,
\nis  a case very near to the case in hand.  A Khalashi and  a
\nMeter  Reader of Bokaro Steel Plant contested elections\t for
\nMembers of Bihar Legislative Assembly.\tThis Court held –\n<\/p>\n
      The  Bokaro  Steel Plant is under the management\tand
\ncontrol\t of Steel Authority of India Ltd.  This is a company
\nincorporated  under the Companies Act.\tIts shares are owned
\nby  the\t Central Government.  The Chairman and the Board  of
\nDirectors are appointed by the President of India.  However,
\nthe  appointment and removal of workers in the Bokaro  Steel
\nPlant  is under the control of Steel Authority of India Ltd.
\nTheir  remuneration is also determined by Steel Authority of
\nIndia  Ltd.  The functions discharged by Steel Authority  of
\nIndia  Ltd.   or  by  the   Bokaro  Steel  Plant  cannot  be
\nconsidered  as\tessential functions of the  Government.\t  In
\nthis  context  a worker holding the post of a Khalashi or  a
\nMeter  Reader  is not subject to the control of the  Central
\nGovernment  nor\t is the power of his appointment or  removal
\nexercised  by the Central Government.  Control over his work
\nis  exercised  not  by\tthe Government,\t but  by  the  Steel
\nAuthority of India Ltd..\n<\/p>\n
      The Court held that the two could not be considered as
\nholding\t an  office of profit under the Central\t Government.
\nThe Court also tested the case on the touch stone of Section
\n10  of the RPA and held that the posts of Khalashi and Meter
\nReader\tare non-executive posts.  Neither of them is  either
\nSecretary  or  Manager\tor a managing agent.  None  of\tthem
\nattracted disqualification even under Section 10 of the RPA.\n<\/p>\n
      Posed  with  the perplexed problem – whether a  person
\nholds an office under the Government, the first and foremost
\nquestion  to be asked is :  whether the Government has power
\nto appoint and remove the person on and from the office?  If
\nthe  answer is in the negative, no further enquiry is called
\nfor,  the  basic determinative test having failed.   If\t the
\nanswer be a positive one, further probe has to go on finding
\nanswers\t to  questions framed in Shivamurthys case  (supra)
\nand  searching\tfor how many of the factors pointed  out  in
\nGuru  Gobinda Basus case (supra) do exist?  The totality of
\nthe  facts  and circumstances reviewed in the light  of\t the
\nprovisions  of\trelevant  Act,\tif any,\t would\tlead  to  an
\ninference  being  drawn\t if  the office held  is  under\t the
\nGovernment.   The  inquisitive over-view-eye  would  finally
\nquery:\t on  account  of holding of such  office  would\t the
\nGovernment  be\tin  a  position to so influence\t him  as  to
\ninterfere  with his independence in functioning as a  member
\nof  Legislative Assembly and\/or would his holding of the two
\noffices-one  under  the\t Government and the  other  being  a
\nmember\tof  Legislative\t Assembly,  involve  a\tconflict  of
\ninterests  inter  se?\tThis  is how the  issue\t has  to  be
\napproached and resolved.\n<\/p>\n
      That  being the position of law, no fault can be found
\nwith  the  finding  arrived at by the High  Court  that\t the
\nrespondent  was\t not holding an office of profit  under\t the
\nGovernment  of\tIndia  and   therefore\tno  disqualification
\nattached   to\thim  under  Article   191  (1)(a)   of\t the
\nConstitution.\tThe Government of India do not exercise\t any
\ncontrol\t on  appointment,  removal, service  conditions\t and
\nfunctioning  of the respondent.\t The respondent does hold an
\noffice and there is profit attaching with the office but
\nsuch  office  of  profit  is not under\tthe  Government\t of
\nIndia,\tHis being a clerk in Coal India Ltd.  does not\tand
\ncannot\tbring  any  influence  or pressure  on\thim  in\t his
\nindependent  functioning as member of Legislative  Assembly.
\nThe finding that the respondent was neither a managing agent
\nnor  a manager nor a secretary under Coal India Ltd.  though
\nthe  Company  has 100% share holding of the Government,\t was
\nnot seriously disputed by the learned senior counsel for the
\nappellant  and\tin all fairness, rather, he did\t not  pursue
\nthis   submission.   Even  otherwise,  we  find\t  that\t the
\nrespondent  was merely a Clerk Grade-I.\t Occasionally in the
\nabsence\t of  his  senior  officer on  account  of  leave  or
\nabsence,  he  exercised some supervisory function  over\t his
\nsubordinates  but  this would not make him a manager of\t the
\nCompany.   We agree with the High Court that the  respondent
\ndid not incur a disqualification under Section 10 of the RPA
\nalso.\tAs  the\t respondents   nomination  was\t improperly
\nrejected, the appellants election was liable to be declared
\nvoid  without proof of the result of the election, in so far
\nas   it\t concerns  the\t returned  candidate,  having\tbeen
\nmaterially affected.\n<\/p>\n
      The  appeal is devoid of any merit and is liable to be
\ndismissed.   It is dismissed accordingly.  The order of\t the
\nHigh  Court is affirmed.  The interim order dated  25.2.2000
\npassed\tby  this Court stands vacated.\tNo order as  to\t the
\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Pradyut Bordoloi vs Swapan Roy on 12 December, 2000 Author: R Lahoti Bench: R.C.Lahoti, Shivarj V. Patil 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. L…..I………T…….T…….T…….T…….T…….T..J This is an appeal under Section […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-89037","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPradyut Bordoloi vs Swapan Roy on 12 December, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pradyut-bordoloi-vs-swapan-roy-on-12-december-2000-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pradyut Bordoloi vs Swapan Roy on 12 December, 2000 - 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