P. N. Mookerjee, J.@mdashThis is as election appeal under sec. 116A of the Representation of the People Act, 1951 (Act 43 of 1951). It seeks reversal of the order of the Election Tribunal below, setting aside the appellant''s election to the House of the People from Constituency No. 34 (Burdwan Parliamentary Constituency), a single member constituency for the Lower House of Parliament. The election was held in February 1962, the dates of polling being the 19th, 20th and 22nd of that month. There were two candidates including the appellant. The appellant was declared elected on March 1, 1962, he having secured 1,55,485 votes as against his rival Subiman Ghosh, respondent No. 8 herein, who obtained 1,23,015 votes. The election was challenged and the instant proceeding was started on April 10, 1962, upon an application, filed by two voters of the above Constituency, who are now the first two respondents before us. The rival candidate Subiman Ghosh is the remaining respondent No. 3 in this appeal. The challenge to the appellant''s election was founded, broadly, on two grounds, namely, (i) that he was, at the relevant date, the holder of office of profit under the Government, both Central and State, which disqualified him from standing in the election in question under Art. 102(1) (a) of the Constitution and (ii) that he (the appellant) was guilty of corrupt practices, which vitiated his election and made it liable to be set aside. The relevant and necessary details under the first head will be presently stated in brief. Of the second ground, furthe. details are unnecessary, as this ground was not pressed before the lower Tribunal and, apparently, abandoned, the applicants (respondents Nos. 1 and 2) choosing to rest their case solely on the first ground aforementioned and confining their challenge to the appellant''s election to and within the limits of Art. 102(1) (a) of the Constitution.
2. The appellant entered contest and, while admitting the broad basic details or allegations of fact, as given in the first two respondents'' application, controverted their allegation that he was the holder of any office of profit under the Government, either State or Central, so as to be unfit for standing in the election under Art. 102(1) (a) of the Constitution. The contest, so raised, was thus, primarily, one on a point of law, though, as we shall notice hereinafter, it involved also a small question of fact, necessary for a comprehensive treatment of the said point of law.
3. To turn, now, to the specific allegations, relevant for our present purpose :-
(1) That the appellant, a Chartered Accountant himself, was a partner of the firm of Auditors, carrying on business under the name and style of G. Basu & Co.
(2) That the said firm of Auditors was the auditor of, amongst others, the Life Insurance Corporation of India, Durgapur Projects Ltd. and Hindusthan Steel Limited, on certain remunerations :
(3) That, as auditor as aforesaid, the said firm was holding office of profit under the Central Government and, accordingly, the appellant, as a partner of the said firm, was also holding such offices of profit:
(4) That the appellant was also a Director of the West Bengal Financial Corporation, he having been nominated or appointed as such by the West Bengal State Government, and such appointment or nomination carried with it the right to receive fees or remuneration as director as aforesaid; and
(5) That the holding of the aforesaid directorship of the West Bengal Financial Corporation on nomination by the State Government upon the usual fees or remuneration, payable to a director by the said Corporation, made the appellant the holder of an office of profit under the State Government, too.
4. The above basic facts are not denied. Indeed, they are all admitted, namely, that the appellant is a partner of the firm of auditors, G. Basu & Co.; that the said firm is the auditor of the Life Insurance Corporation of India. Durgapur Projects Ltd. and Hindusthan Steel Ltd., and receive remuneration as such; that the appellant is also one of the nominated directors of the West Bengal Financial Corporation, such nomination having been made by the State Government of West Bengal and that he receives the usual fees or remuneration of a director as aforesaid. It is contended, however, that, even or those facts, the constitutional disqualification under Art. 102(1) (a) of Constitution is not attracted. In essence, the parties differ broadly upon the above point of law alone, namely, the inference to be drawn from the above admitted facts, though, as we shall notice hereinafter, this differenes embraces also a small question of fact.
5. Before the tribunal below, the dispute, so far as the first three concerns are concerned, though broadly confined to the above point of law, was a little more broad-based in that, there, the appellant contended, further, that appointment as auditor did not amount to the holding of an office or, for the matter of that, of an office of profit and that the mere fact that he was a partner of the firm of auditors, so appointed, did not make him the holder of any such office. No such extreme contention was, however, pressed or put forward before us and the learned Advocate General, with his usual fairne and in his usual brevity and ''to-the-point'' argument, chose to confine himself, so far as the said three concerns, namely, the Life Insurance Corporation of India, Durgapur Projects Ltd., and Hindusthan Steel Ltd., were concerned, only to the question whether the above admitted facts were sufficient to male the appellant, as partner of the firm of auditors, G. Basu & Co., the holder of an office of profit under the Government, to wit, the Central Government, so as to bring him within the mischief of the disqualifying Art. 10(1) (a) of the Constitution. I may just add here that, upon principle and authority, a more extreme argument would have been untenable and it could only have raised a smoke, too thin to obstruct vision and liable to be cleared up in no time. With regard to the West Bengal Financial Corporation, however, the submission was broader and, there, the further question was raised whether the appellant''s "directorship of the said concern involved the holding of an office of profit at all. To these different contentions, I shall address myself in due time.
6. Before turning to the relevant Article, I deem it necessary to make a few preliminary observations. The essence of democracy lies in true representation of the people. It is essential, therefore, that the elected representatives should not be open to any influence or temptation, which may stand in the way of their serving truly the people of their constituency. Possibility of such influence or interest or semblance of any such temptation is sufficient disqualification unless the law provides to the contrary. That, indeed, is the ruling concept, underlying the relevant parts of our Constitution. Parliament, no doubt, is supreme but it is so within the limits of the Constitution. It has powers in certain cases to lay down exceptions and. while so authorising Parliament, the Constitution itself has provided certain exceptions. The exceptions, however, are exceptions to the above fundamental approach and principle and should be read as such and strictly construed. They should not be permitted to over-cloud the principle itself. Corruption in election and corruption in the elected representatives are equally reprehensible and courts should be vigilant about it and prevent within the limits of the Constitution and permitted by relevant legislation, possibilities or chances of corruption, to keep pure, unsullied and unturmoiled the resplendent and transparent stream of representation. Conflict of duty and interest in the elected representatives should be avoided and they should be removed from all possible traces or semblance of influence which may deter them from discharging their duties to the electors or the people. As I had remarked on an earlier occasion upon a like or allied provision [Sec. 7(d) of the Representation of the People Act, 1951], disqualifying provisions, like the present [Art. 102(1) (a) of the Constitution] "have been a familiar feature of election laws from very early times. They are based on a sound, solemn and salutary principle, which democracies or democratic constitutions can ill afford to spare or ignore. Their purpose is to guarantee the purity of the legislature and of the administrative machinery as well and it has been variously put by various eminent Judges and noted authorities, but always with an eye to the guarantee of purity of the legislature and administration and to keep the source or the fountain head of law and the stream of administration unsullied and free from corruption. The basic standpoint is ''to prevent conflict between interest and duty which would otherwise inevitably arise'' [per Lindley L.J. in (1) Nutton v. Wilson, (1889) 22 Q.B.D. 744 at p. 748] and ''to prevent the member concerned from being exposed to temptation or even to semblance of temptation [per Lord Esher M.R. in the same case (1) Nutton v. Wilson. (1889) 22 Q.B.D. 744 at p. 747]. That, indeed, ''has never been questioned'' " (Vide (2) Brojo Gopal Das and others v. Kalipada Banerjee and others, AIR 1960 Cal. 92 at p. 98). The context also makes it plain that such provisions should receive, though, undoubtedly, within the limits of the Constitution and governing statutes, a wide interpretation to prevent the mischief, which might otherwise follow. Indeed, it is only reasonable that they receive the widest connotation and application, consistently, of course, with the letter-and-if I may respectfully add-the spirit of the Constitution and the relevant statutes. Such construction may, no doubt, entail some hardship and some sacrifices, may be vital and considerable and may demand a strong spirit of service and sacrifice from the intending candidates, but that is probably well both for the elector and the elected. Service of the people may not be possible or consistent with conflicting personal interest and such interest or possibility or chances thereof should be removed and obliterated, unless expressly permitted or tolerated by the Constitution or appropriate legislation, before one can hope or aspire to be a people''s representative. Exigencies or practical considerations may justify exceptions but, of that, the Constitution and competent legislation are the only source and authority. There is grave risk in holding otherwise and the lurking danger, which underlies a different approach, may vitally endanger and undermine and even destroy the Constitution.
7. To quote, now, the relevant provision [Art. 102(l) (a) of the Constitution] :
Article 102. (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;
...
8. No other disqualifying provision or disqualification is relevant for our present purpose. In the course of argument, reference was made by the learned Advocate General to section 7 (e) of the Representation of the People Act, 1951, but the contesting respondents explicitly stated and affirmed that their case is not founded on any provision of law save and except Art 102(1) (a) of the Constitution and that they do not challenge the appellant''s election except under that provision. This indeed, is abundantly clear from the original petition, filed by them before the Election Tribunal, upon which the instant proceeding was started and upon which the same is founded, and they alleged and allege no other disqualification against the appellant''s competency to stand for this particular election. Before the Tribunal, some reference appears to have been made to section 8 (e) of the Representation of the People Act, 1951, possibly with a view to show that the appellant''s directorship of the West Bengal Financial Corporation would not be a disqualification for the purpose of his present election but, as the tribunal rightly pointed out, the said saving section [Sec, 8(e)] refers only to the disqualification under sec. 7(e) which is not relevant here and no part of the case of the contesting respondents.
9. In the context, the whole case rests on Art. 102(1) (a) of the Constitution and. there, the enquiry is limited to two points: (i) whether the appellant, at the material date and time, held an office; to wit an office of profit, and that, again, under the Government. State or Central, and (i) if so, whether Parliament has prescribed any protective or exempting provision in respect of the same.
10. This last part almost answers itself and answers itself in the negative, as the learned Advocate General has made it clear that the appellant does not contend that there is any such protection or exemption in the instant case, once it is held that he holds an office of profit under the Government, either as a partner of the auditor firm, G. Basu & Co. in their capacity as auditors of the first three concerns, or, as a director of the fourth concern, West Bengal Financial Corporation, and as the appellant, notwithstanding the fullest opportunities in that behalf, has not produced any materials before the Court, presumably within his power, to avail himself of the possible exemption u/s 2(a) of the Parliament (Prevention of Disqualification) Act, 1959, or otherwise, thus inviting. as a matter of law, an adverse presumption against him u/s 114(g) of the Indian Evidence Act, apart from the position that the onus to prove his eligibility for such exemption, if any, is upon him and that onus has not been discharged. To this part, I shall return later in greater details, after I have dealt with the main or the more vital part of the problem, nemely, whether the appellant did. at the relevant date or time, hold an office of profit under the Government.
11. As I have said earlier, there is no dispute here that the appellant, as parter of the firm G. Basu & Co. who are auditors of the first three concerns, holds an office of profit. The question, however, is whether he holds such office under the Government. The answer, in my opinion, should be in the affirmative, although the grounds for so holding would be slightly different, at the outset, though not in the end, in the case of the first concern from the other two. The test, in each case, is the same in the ultimate analysis, although the process of reaching and applying that test is slightly different in the two cases. That test, as I read it on the authorities, depends on the seat of effective control over the office in question, such control being manifested and determined, primarily by the power of appointment and power of dismissal, though, in some cases, the source or the fund, out of which the remuneration is paid, may also require consideration and may usefully aid the final conclusion. This last factor, however, is normally, of comparatively minor importance and is often neutral and not decisive by itself (Vide (3) Moulana Abdul Shakoor v. Rikhab Chand and another, 14 E.L.R. 149, at pages 157 and 158; vide also (4) Dr. Deo Rao Lakshman Anande v. Keshav Lakshman Borkar, 13 E.L.R. 334 at page 345). But there may be cases, where it may be of some importance and may even prove to be the ultimate determinant. In this connection, the following passages from the judgment of the Supreme Court in (3) Moulana Abdul Shakoor''s case, supra, may be usefully and conveniently quoted:-
The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are importent factors in determining whether that person is holding an office of profit under the Government, though payment from a source other than Government revenue is not always a decisive factor" (Vide p. 157). (Vide also the pointed reference to the test, in the above matter, of the power of dismissal in the Government in the same page).
...
No doubt the non-payment from out of the revenues of the Union is not always a factor of any consequence but it is of some importance in the circumstances of this case. (Vide p. 158).
The power of appointment and dismissal by the Government or control exercised by the Government is an important consideration which determines in favour of the person holding an office of profit under the Government but the fact that he is not paid from out of the State revenues is by itself a neutral factor.
And they, by themselves, amply support the above propositions.
12. Substantially, to the same effect, are also the observations of the Bombay High Court in the case of (4) Dr. Deo Rao Lakshman Annade, supra, where the relevant test is broadly stated in these terms :-
Principal tests for deciding whether an office is under the government are (1) what authority has the power to make an appointment to the office concerned (2) what authority can take disciplinary action and remove or dismiss the holder of the office? and (3) by whom and from what source is his remuneration paid? Of these the first two are more important than the third one. (Vide p. 345)
13. Speaking for myself, I would even go further to hold that where the powers of appointment and dismissal are vested in different authorities and the remuneration is paid by another, the office should be deemed to be held under all of them, if a wide connotation and construction be preferable, as it should be under Article 102(1) (a) of the Constitution and like provisions. Indeed, if the power of appointment be in a particular authority, it may well be said that the office is held under it (Vide (5) M. Ramappa v. Sangappa and ors AIR 1958 S.C. 937 at p. 939; see also (6) Gazula Dasaratha Rama. Rao v. State of Andhra Pradesh and others, AIR 1961 S.C. 564 at p. 570) and no less logical would it be to hold that the office is held under the authority, which wields the power of dismissal or pays the remuneration. For a strict determination no doubt, that is, where a single authority has to be found, it may well be necessary to consider the cumulative effect of all the above factors and stress on the one or the other may depend on the circumstances of the individual or particular case but where, as here, a liberal and wide interpretation is preferable, it is safer to hold that the office is held under the seat of control in the shape either of the power of appointment or the power of dismissal or the source of the remuneration or the like.
14. Admittedly, Durgapur Projects Ltd. and Hindusthan Steel Ltd. are Government companies within the meaning of sec. 2 (18) read with sec. 617, of the Indian Companies Act, which governs them. Appointment of their auditors, therefore, is governed by this provision of sec. 619(2) of the Act. To the same effect, are the relevant articles in their respective Articles of Association and that had to be so as any different or contrary provision in that behalf would have offended the statute and would, thus, have been void on that ground. In accordance with the above, the appointment of the appellant''s firm, G. Basu & Co. as auditors of the above companies was ''by the Central Government on the advice of the Comptroller and Auditor General of India'' and so also was or would be its re-appointment, if any [Vide the above sec. 619(2) and Arts. 152(a) & 143 (a) respectively of the Articles of Association of the above two companies, following and in conformity with the said relevant statutory provisions]. It is, thus, ex facie and in express terms, an appointment by the Government, to wit the Central Government, which in the premises, is the appointing authority and is so under the above Central Act. It follows, then, that, in the absence of a provision or indication to the contrary the same Central Government would be the dismissing authority and would have the power of dismissal in the matter under sec. 16 of the Indian General Clauses Act, which stands in these terms:
Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.
15. The learned Advocate-General argues that there is, in the instant case, such contrary provision or indication and he points out to us section 224(7) of the Indian Companies Act. This sub-section expressly refers to and applies to an appointment u/s 224(1) and it may be a matter of some argument whether it is intended to apply to an appointment u/s 619. It is arguable, however that, under the scheme of the statute sec. 619 really incorporates itself into sec. 224 and becomes part of it except to the extent of inconsistent provisions, which it overrides, so that an appointment under sec. 619 (2) is, so far as Government companies are concerned, really and for purposes of the Act, an appointment under sec. 224, to wit, sec. 224(1), thus attracting to it sub-section (7) of the said section. This view receives some support and confirmation from the language of sec. 619 [Vide sub-sec. (1)]. Be that as it may, the position, even under sec. 224(7) would be that the dismissal would be subject to the plenary control of the Central Government and, virtually and in substance, as I put it during argument, such dismissal would be by the said Government. This, indeed, follows from the pre-requisites of the Central Government''s previous approval [Vide sec. 224 (7)]. It is needless to emphapise that, in matters of the auditors of the above two companies, the power of '' appointment and the power of dismissal would both be with the Central Government and their remuneration also would be fixed by the said Government [Vide sec. 224 (8) of the Indian Companies Act and Arts. 152(a) and 143(a) respectively of the Articles of Association of the two companies already referred to] and, even, though, undoubtedly, such remuneration would be paid by the two companies concerned, that would not make any difference in the ultimate conclusion that the said auditors would be holding office under the Central Government, there being, at any rate, sufficient and requisite control, vested in the said Government, in the matter of the said auditors (vide (3) Moulana Abdul Shakoor''s case and (4) Dr. Deo Rao Lakshman Anande''s case, supra).
16. The same, in substance, is the position in regard to the Life Insurance Corporation of India too and the same would be the conclusion. This Corporation may not, strictly, be a Government concern, notwithstanding the Government''s contribution of its entire initial capital (vide sec. 5) and largeamount of Government control, envisaged and prescribed in and under secs. 4, 6, 18, 21, 25, 27, 48 and 49. It may, on the other hand, well be an autonomous statutory body, being as the statute says (vide sec. 3) a body corporate, having perpetual succession and a seal of its own and capable of suing and being sued in its own name, and may, thus, be regarded as a separate and independent legal entity, distinct from the Government. It may or may not also, even be a body or authority under or subject to the control of the Government, strictly, so called. Under the statute, however, which created it, the appointment of its auditors is regulated and controlled by sec. 25 which, to quote only its relevant part, runs as follows:
Sec. 25(1) : The Accounts of the Corporation shall be audited by auditors duly qualified to act as auditor of companies under the law for the time being in force relating to Companies and the auditors shall be appointed by the Corporation with the previous approval of the Central Government and shall receive such remuneration from the Corporation as the Central Government may fix.
...
(3) The auditors shall submit their report to the Corporation and shall also forward a copy of their report to the Central Government.
17. It is clear, then, that, so far as this appointment of auditors, is concerned, it is well under the control,-the effective control, as I put it during argument,-of the Central Government Virtually and in substance, then, this also is a case of appointment by the Central Government, or, in other words, the power of appointment, or more accurately, effective power in that behalf, lies with the Central Government. No person can be appointed auditor of this Corporation except with the previous approval of the Central Government. His remuneration also is to be fixed by the Central Government. Thus, in the matter of this appointment, the Central Government holds the whip hand and can dictate terms. Essentially, then, it is appointment by the Central Government, however, much in form it may be made by the Corporation. The Act, again, does not provide for or deal specifically with the power of dismissal and, in the premises, the power of dismissal, in this case, too, would, in my opinion, vest in the Central Government under the aforesaid sec. 16 of the Indian General Clauses Act. Even otherwise, the power of dismissal must, logically and on principle, be in law, subject to the previous approval of the Central Government in line with the above statutory power of appointment, so that effective power in that behalf would be in the Central Government. In the ultimate analysis, then, this also would be a case where the relevant power of appointment and dismissal of auditors, or, at least, requisite and sufficient control in that behalf, would be in the Central Government and, even though their remuneration,-but that, again, as fixed by the Central Government,-has to be paid by the Corporation, upon the test, laid down above (vide the cases cited), the appellant, in this case, too, would be holding an office of profit under the Central Government.
18. For holding an office of profit under the Government, one need not be in the service of the Government and there need not be relationship of master and servant between them. He need not be a Government servant. The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a service under the Government. It also distinguishes them from the holder of an office of profit under a local or other authority subject to the control of the Government. In the several relevant provisions [Vide Arts. 58(2), 66(4), 102(1) (a), 191(1) (a) and 309 to 314 etc.], different and appropriate expressions have been used and those should not be confused. To hold an office of profit under the Government, a person need not be in the service of the Government and need not be the holder of a service under it or a Government servant. His remuneration, also, need not come from Government funds. It will be enough, if the Government holds the power of appointment and dismissal in the matter, or wields sufficient trol over the same (vide the cases cited). On similar tests, the holder of an office of profit under a local or other authority however much such authority may be subject to or under the control of the Government, would also be different from the holder of an office of profit under the Government, as, in such cases, the power of appointment and dismissal, or, at any rate, effective and sufficient control in the matter, would be in the local or other authority concerned. Distinction also exists between one, serving under the Government, and one in the service of the Government (Vide (7) Raja Bahadur K.C. Deo Bhanj v. Raghunath Misra and others, AIR 1959 S.C. 589 at pp. 594-5).
19. On the above distinctions, the decisions, cited by the learned Advocate General, namely, (8) Tamlin v. Hannaford (1950) l K.B 18; (9) G. Narayanswami Naidu v. C. Krishnamurthi and another, 14 E.L.R. 21; (10) Subodh Ranjan Ghosh v. Sindri Fertilizers and Chemicals Ltd. and another, AIR 1957 Pat. 10: and (11) Sm. Ena, Ghosh v. State of West Bengal and others, AIR 1962 Cal. 420, are all distinguishable and they will have no bearing on the instant case. The test here does not depend upon the particular concern being a servant or agent of the Government or a department of the same or under its control. The accent is on the holder of the office of profit,-whether he holds such office under the Government,-and the tests in that behalf are, on the authorities, as already explained, different and not necessarily the same as for service under the Government, or, for the matter of that, under an agent, servant or department of Government, or for the holding of an office under a local or other authority subject to or under the control of the Government, including an agent, servant or department of Government. The cited English authority, on which the learned Advocate General so strongly relied, was concerned with the question whether a statutory body like the British Transport Commission was an agent or servant of the Crown or a department of Government so as to be entitled to its (Crown''s) immunities and privileges against the law of the land. With all respect to the learned Advocate General, I am unable to see how that decision can be of any real assistance in the matter, now before us, or can have any relevance here, in view of the distinctions, stressed above by me.
20. Clearly also, the two cases, reported in (12) AIR 1962 All. 128 (Joti Prosad Upadhya v. Kalika Prosad Bhatnagar and others) and (13) A.I.E. 1962 H.P. 52 (Siri Ram and another v. Niranjan Singh and others) are basically different and distinguishable in view of the decision of the Supreme Court in (3) Moulana Abdul Shakoor''s case, supra, as the holders of the offices of profit there concerned, as, before the Supreme Court, upon the findings in the respective cases, held the offices, not under the Government but under an authority under or subject to the control of the Government.
21. Lastly, comes the West Bengal Financial Corporation. It is a body corporate, established under sec. 3, read with sec. 2 (b) of the State Financial Corporation Act, 1951 (Act 63 of 1951) having perpetual succession and a common seal and capable of suing and being sued in its own name [Vide sec. 3(2)]. The appellant is a director of this concern. He has been nominated to it by the State Government,namely, the Government of West Bengal, under sec. 10 (a) of the Act. He holds this office at the pleasure of the said Government [Vide sec. 11(1)], his nomination and tenure as director as aforesaid, that is, including tenure of the said office, depending upon the said ''(State) Government [Vide secs. 10(a) and 11(1)], reference to sec. 13, which confers express power of removal of any director, nominated or otherwise, in certain contingencies, being unnecessary and irrelevant in the present instance. It is clear, therefore, that the power of appointment or nomination and dismissal, that is, removal from office or termination of the office, is vested in the State Government, which is sufficient to make the appellant the holder of an office under the said Government. On behalf of the appellant, reference was made, during arguments to secs. 12 and 16 of the above Act to show that the appellant, as director as aforesaid, is neither a salaried official of the Corporation (as in sec. 12) nor a servant of the State Government (as in sec. 16), but that is wholly irrelevant for our present purpose as, on the tests, laid down hereinbefore, the appellant would still be, upon what has been stated above, a person, holding an office under the State Government. In the premises, the only further question, which remains and needs consideration, is whether the appellant''s aforesaid office is an office of profit. That question, prima facie, answers itself against the appellant when, admittedly, he receives fees or remuneration for it. It was, of course, open to the appellant to rebut this prima facie position. He could have done it by showing that the'' fee or remuneration, which he receives, cannot be considered as profit in law for purposes of the above office, in view of the Parliament (Prevention of Disqualification) Act, 1959, [Vide sec. 3(i), read with sec. 2(a)], or, possibly, by showing in the alternative, that, as a matter of fact, it cannot be considered as profit in the light of the decision of the Supreme Court in (14) Ravana Subanna v. G.S. Kageerappa, A.I.R 1954 S.C. 653, at pp. 656-7. He has, however, chosen not to place any material before the Court on that behalf, notwithstanding the fullest opportunities, given to him for the purpose, and has, thus, failed to discharge the onus, cast upon him in the matter. The conclusion, then, is irresistible that, as a director as aforesaid, the appellant holds an office of profit under the State Government and this, also, is sufficient to disqualify him under Art. 102 (1) (a); of the Constitution.
22. Incidentally, I may note that, at one stage of the arguments on this last quoted aspect, reference was made by the learned Advocate General to secs. 7 (e) and 8 (e) of the Representation of the People Act, 1951, under the impression that the Election Tribunal below, also held the appellant disqualified for the election in question under sec. 7(e) of the above Act, on the ground that he was a director of a Government concern and he criticised this view by emphasising that, this being a parliamentary election, to wit, election to the House of the People, ''appropriate Government'' under the above section would be the Central and not the State Government (Vide sec. 9(1) (a)) and, however much, the appellant may be a Director of a State Government concern, he could not, merely because he is such a director, be disqualified for election to the House of the People under the said statutory provision. Apparently, this argument had had its inspiration from the reference in the Tribunal''s judgment to secs. 7(e) and 8(e) of the Representation of the People Act, 1951, but as noticed earlier, that reference was made altogether from a different point of view and for a different purpose. The Tribunal did not hold the appellant disqualified under sec. 7(e) of the above Act and the learned Advocate General''s submission to the contrary is not correct. Indeed, there can be no question that the appellant is not disqualified in the matter of the impugned election, merely by reason of his being a director of the above concern, under sec. 7(e), as the ''appropriate Government'' for purposes of this election under the said section would be the Central Government and not the State Government under sec. 9(1) (a) of the above Act, as contended for by the learned Advocate General. The respondents did not contest that position and the Tribunal also did not hold the contrary. Indeed, if the appellant''s disqualification had been sought to be founded on the above section, that is, merely because of his being a director of the above concern, without more, that is, without his right to be remunerated for the said office, the appellant would have succeeded, at least on this part of the case, as the learned Advocate General''s submission on this point of law would have been relevant and answerable. The above section disqualifies the director of a Government concern subject only to the exception, mentioned in sec. 8(e), and, this it does, without reference to any provision for fees or remuneration and irrespective of the same. But the Government there must be the ''appropriate Government'', that is, the Central Government in the instant case of parliamentary election [Vide sec. 9(1) (a)]. The above Act, however, would be irrelevant here and would not apply as the Government concern here in question is of the State Government. That, again, as I have already said, is not the respondent''s case and the appellant''s disqualification, as director as aforesaid, is not pleaded or urged under the above Act but under a different provision, namely, Art. 102(1) (a) of the Constitution, on account of the fees or remuneration, received or receivable by him as such director, which, as I have held above, make it an office of profit and bring him within the mischief of the said Article, which speaks of an office of profit under the Government, be it State or Central.
23. One other aspect deserves consideration, although it was not specifically referred to before us. It may perhaps be contended that secs. 7(e) and 8(e) of the Representation of the People Act, 1951, constitute together an exception to the Rule of disqualification, otherwise available and applicable against the persons, mentioned in sec. 7(e), under other provisions, e.g., Arts. 58(2),66(4),102(l)(a) and 191(1) (a) of the Constitution, so that, however much a person within the aforesaid category [Vide sec. 7 (e)] may be holding an office of profit under the aforesaid Articles, he will not be disqualified, unless sec. 8(e) makes him so. If that view of the law be correct, the appellant would not certainly suffer, because of his directorship of the West Bengal Financial Corporation, even though, as held above by us, it is, in the instant case, an office of profit under the Government-the State Government, to be exact,-so as to be otherwise within the mischief of Art. 102(1) (a) of the Constitution. I do not think, however, that the aforesaid view of the law would be correct. Section 7(e), or for the matter of that, that section, read with s. 8 (e) of the Representation of V e People Act. 1951, was not meant to be an exception to or under Art. 102 or a restriction to its disqualifying provisions. It constitutes, on the other hand, an extension of the rule of disqualification, though within the limits prescribed in and subject to ss. 8(e) and 9(1) (a) of the Representation of the People Act. 1951, namely, that it makes the holder of the office, mentioned therein, disqualified to the extent, indicated in the said s. 8 (e) and S. 9(1) (a), irrespective of the question whether it is an office of profit or not. In other words, a person not disqualified under Art. 102 of the Constitution or the like, may well be disqualified under s. 7(e), read with s. 8(e) and s. 9(1) (a) of the Representation the People Act, 1951, without affecting, the position that a person, disqualified under the said Article, would remain so in spite of the aforesaid sections, so that a person, not disqualified thereunder, that is, under the aforesaid section, may yet be disqualified under the above Article. That is what has actually happened in the instant case.
24. It may be noted, in the above connection, that Art. 102 of the Constitution itself embodies an exception to the above sub-Art. 1 (a) in sub-Art. (2) which lays down that ''"for the purposes of this Article (Art. 102) a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State". But, obviously, that exception has no application here.
25. I would, accordingly, hold that the appellant was disqualified from membership of the House of the People by reason of his being a partner of G. Basu & Co. in their capacity as auditors of the first three concerns, the Life Insurance Corporation of India, Durgapur Projects Ltd., and Hindustan Steel Ltd., and by reason also of his being a director of the fourth concern, the West Bengal Financial Corporation. The Election Tribunal below was, therefore, right in upsetting his election and allowing the contesting respondent''s application for the purpose.
27. In the result, this appeal would fail and it will be dismissed. As, however, the point was strictly speaking, one of first impression, the parties, will bear their own costs in this Court.
Bijayesh Mukherji, J.
28. This is an appeal u/s 116A of the Representation of the People Act, 43 of" 1951, by the first respondent, Shri Gurugobinda Basu, whose election on March 1, 1962 to the House of the People from No. 34 Burdwan Parliamentary Constituency a one-member Election Tribunal consisting of Shri Santosh Kumar Chakravarti, District Judge, Bankura, as constituted u/s 86 ibid, declares void. The date of the Tribunal''s order to that end u/s 98(b) ibid is August 11, 1962.
29. The circumstances leading to the "purely statutory proceeding" now under appeal need not be referred to further than as follows:
Sarvashri Sankari Prosad Ghosal and Narayan Chandra Ghosh, two electors of the Parliamentary Constituency just named present an election petition (the instant one) to the Election Commission calling in question the appellant''s election on a certain ground-one that is specified in sub-section (1) of section 100 ibid. The ground is that on March 1, 1962-the date of his election-he held several offices of profit under the Central and State Governments and was therefore disqualified for being chosen as a member of the House of the People. The averment about his having held and holding offices of profit rests on the allegation that Messrs. G. Basu and Co.-a firm of which the appellant is admittedly a partner (as it transpires from his written statement) - were auditors on March 1, 1962 of Life Insurance Corporation of India, Durgapore Projects Limited and Hindusthan Steels Limited, shortened hereafter into "LIC", "Durgapore" and "Hindusthan" respectively. At the relevant time he was all this and more: a member nominated by the State Government of the Board of directors of the West Bengal Financial Corporation, referred to hereafter, for brevity''s sake, as "the Corporation". Voiding the appellant''s election is therefore one relief prayed for. The other relief praying the seat for the defeated candidate, Shri Subiman Ghosh, the second respondent, is negatived by the Tribunal and no longer insisted upon.
30. The date of presentation of a petition as that to the Election Commission u/s 81 ibid is April 10, 1962 which is within forty-five days from March 1, 1962-the date of the appellant''s election. Presentation over, it is admitted. The date of admission is April 22, 1962. A copy thereof is served on the appellant, the first respondent to the petition, and also on the second respondent whom the appellant defeated by 32,470 votes, as will appear from-
|
Names of candidates |
Votes potted |
|
Gurugobinda Basu |
1,55,485 |
|
Subiman Ghosh |
1,23,015 |
|
Difference |
32,470 |
31. A copy thereof is published too in the Gazette of India, the official gazette within the meaning of section 2(3) (c) read with section 86(1) ibid. See the Gazette of India dated May 5, 1962 referred to by the Election Commission in its Order No. 4 dated May 17, 1962, All this done, the Election Commission by virtue of authority vested in it u/s 86 (3) ibid constitutes the Election Tribunal (noticed already) and assigns the petition to it for trial, fixing the venue thereof at Bankura in terms of section 88 ibid.
32. The election petition reaching the Tribunal, it issues certain directives in pursuance of which the appellant qua the first respondent files a written statement denying that he had held on the relevant date or ever an office of profit under the Government-Central or State. That Messrs. G. Basu and Co. is one of the firms of Chartered Accountants doing the audit of LIC, Durgapore and Hindusthan is admitted: Is admitted too the appellant being a partner of the firm. What is denied is that thereby he holds an office of profit under any Government. The accent is laid on each of three undertakings- LIC, Durgapore and Hindusthan-being a separate legal entity with perpetual succession and a seal of its own and paying the remuneration of the auditors from its fund. The appellant having held an office of profit under the Central Government or any Government is therefore denied. At the same time it is averred that appointment of auditors is made by LIC with the approval of the Central Government and for the Durgapore and Hindusthan by the Central Government. The appellant having been nominated by the State Government as a member of the board of directors of the Corporation is admitted. But it is emphasized that the Coporation is a statutory body incorporated under the State Financial Corporations Act, 63 of 1951, and pays out of its funds the appellant''s remuneration "for attending the Board and Committee meetings". More, the impugned election concerning the Lok Sabha and the Corporation being an affair of the State, the State Government is not the appropriate Government within the meaning of section 7(e) of the Representation of the People Act, 43 of 1951, so as to have the slur of disqualification put upon him (the appellant).
33. The five issues struck by the Tribunal need not be reproduced. Suffice it to say that the first three only count and that the pith of those three may be rendered thus: is the appellant disqualified for being chosen a member of the Lok Sabha for having been on March 1,1962-the date of his election- a partner of the firm G. Basu & Co.- one of the auditors of LIC, Durgapore and Hindusthan-and for himself being a member of the Board of Directors of the Corporation?
34. The learned Judge constituting the Tribunal holds that he is. The reason why he holds so are-one, an auditor auditing the accounts as above holds an office; two, a firm holding an office, each member thereof holds an office too; three, the appellant, a partner of the firm of auditors (Messrs. G. Basu & Co.), therefore holds an office; four, the appellant and the firm he is a partner of are under the control of the Central Government in that LIC by virtue of section 25 of the Life Insurance Corporation Act, 31 of 1956, appoints the auditors with the previous approval of the Central Government and the auditors so appointed receive such remuneration as the said Government fixes, thus LIC not standing between the auditors and the Central Government and the auditors owing their appointment and the quantum of remuneration directly to the Central Government; five, more so for Durga-pore and Hindusthan where under the articles of association auditors are appointed or reappointed by the Central Government on the advice of the Comptroller and Auditor-General, their remuneration, rights and duties being regulated by sections 224-233 of the Companies Act, 1 of 1956, and their being under the control of the Central Government thus looking so definite; six, Messrs. G. Basu and Co. and necessarily its partner, the appellant, must therefore be deemed to be holding offices of profit under the Central Government; seven, the office of auditors has not been declared by Parliament by law not to disqualify its holder; and eight, the appellant does hold an office of profit as a member of the board of directors of the Corporation under the State Government and as such is disqualified under Article 102(1) (a) of the Constitution, the Parliament (Prevention of Disqualification) Act, 10 of 1959, not coming to his aid, nor section 7 (e) read with section 8(e) of the Representation of the People Act, 43 of 1951.
35. It only remains to be noticed that neither party calls oral evidence at the trial. Told so, the Tribunal expresses and records what it feels about this: "it is necessary to have the evidence of respondent No. 1", that is, the appellant before us. Such an observation emanating from the Tribunal, the learned pleader appearing for the respondent No. 1 there (the appellant here) pleads for a little time "to think over this matter"-vide order No. 12 dated August 6, 1962 recorded at 11-40 a.m. And the hearing is postponed till 2-30 p.m. the same day when, however, the decision not to examine either the appellant or any witness on his behalf is adhered to. Observing that "the risk is entirely of the respondent no. 1" the Tribunal sets down the proceeding on the day following "for arguments". Arguments heard, the Tribunal makes an order declaring the appellant''s election to the House of the People to void, as stated above.
36. The Tribunal has before it the pleadings-in particular, the admissions (briefly noticed) in the appellant''s written statement-and certain documents received in evidence on behalf of the appellant on admission by his adversaries. These documents are Durgapore''s memorandum of association (exhibit B), Hindusthan''s memorandum of association (exhibit B/l), Hindusthan''s articles of association (exhibit C), Durgapore''s articles of association (exhibit C/l), Hindustan''s seventh annual report, 1960-61, (exhibit D) LIC''s statement of accounts "for the year ended 31st December, 1960" (exhibit E), a letter dated August 28, 1961 from LIC''s executive director to Messrs. G. Basu and Co enclosing a cheque for Rs. 29,000/- as fees for auditing the accounts for the year 1960 (exhibit A) and another letter dated December 29, 1961 from Hindusthan''s executive officer enclosing a cheque for Rs. 70,000/- as fees for auditing accounts "for the year ended 31-3-61" (exhibit A(l).
37. The learned Advocate-General appears for the appellant. He has lightened our labour by conceding that the appellant holds offices of profit under L1C, Durgapore and Hindusthan. But, he contends, to hold offices of profit under them is not to hold offices of profit under the Government of India. That being so, he concludes, the appellant is not disqualified, for being chosen as a member of the Lok Sabha a House of Parliament, under Article 102 (1) (a) of the Constitution.
38. How the auditors are appointed needs looking into. For LIC, the relevant section is section 25 of the Life Insurance Corporation Act, 31 of 1956 -a section upon which the Tribunal bases its finding and Mr. Hari Prasanna Mukherji appearing for the respondents rests his contention that the appellant holds an office of profit under the Government of India. Sub-section (1) thereof proivdes, among other things, that the auditors shall be appointed by LIC with the previous approval of the Central Government and shall receive such remuneration from LIC as the Central Government may fix. Two things therefore emerge. First-though LIC makes the formal appointment of its auditors, it has fetters imposed upon it. No previous approval of the Central Government, no appointment by the appointing authority, namely, LIC. So it is there for all to see that the Central Government''s is the decisive voice in the appointment of auditors. Second: the remuneration the auditors will receive the Central Government fixes-not LIC. It is but another instance of the supreme voice the Central Government has in the matter.
39. The learned Advocate-General contends that neither the previous approval of, nor the fixation of remuneration by, the Central Government answers the Question: whose auditor is the appellant-of the Central Government or of LIC? Obviously, the contention runs, he is an auditor of LIC- a statutory body which makes the appointment, with the previous approval of the Central Government though. Such an approach merits more than one answer. In the first place, the appointment in form is no doubt made by LIC. But the appointment in substance is made by the Central Government. Say, the Central Government withholds ''its previous approval-a consideration which weighs with the Tribunal and which Mr.. Hariprasanna Mukherji makes a point of. Can LIC then makes the appointment? The answer cannot be in doubt. It cannot So the substance should prevail over the form. And it must be held that the. real appointing authority is the Central Government. In the second place, by virtue of Articles 102(1) (a) of the Constitution, the appellant will be disqualified for being chosen as a member of the Lok Sabha if he holds any office of profit under the Government of India other than an office declared by Parliament by law not to disqualify holder. Parliament has not declared by law the office we see here-the office of an auditor-not to disqualify its holder. That is the common submission made on behalf of the appellant and the respondents. The office of profit the appellant holds comes under the compendious expression: any office of profit. Does he hold it under the Government of India which is but another name of the Central Government? That is much the most important question for decision. The word used is under. Mr. Hariprasanna Mukherji quotes the authoritative dictionary by Murray and Craigie, Oxford, according to which under means subject to, denoting subjection to power or force exercised by some person or persons, beneath the rule or domination of. That an authoritative lexicon can be pressed into service in interpreting a statute appears to be beyond argument. Craies on Statute Law, 5th edition, refers at page 152 to (15) Camden (Marquis) v. I.R.C. [1914] 1KB. 641 where Cozens-Hardy, M.R. says at page 647:
It is for the Court to interpret the statute as best as it may. In so doing the Court may no doubt assist themselves in the discharge of their duty by any literary help they can find, including of course the consultation of standard authors and reference to well-known and authoritative dictionaries
40. So reference may be made to another great work: Modern English Usage [1959] by Fowler. At pages 47-48 this authority on the English language says:
...under like its contrary over is concerned with super-position and subjection and suggests some interrelation.
41. Superposition of the Government of India over the appellant in his appointment as an auditor of LIC is manifest. Equally manifest is his subjection to the Government of India in the appointment he is favoured with, the remuneration he is allowed to draw and the submission of a copy of the audit report to the Central Government in terms of section 25(3) of the Life insurance Corporation Act, 31 of 1956. And interrelation between one who dominates and one who is dominated is there too. So the appellant being an auditor of LIC (as the learned Advocate-General submits) and the appellat holding that office of profit under the Government of India (as Mr. Hariprasanna Mukherji contends) can stand together. The learned Advocate-General developing his contention propounds a test. If ''LIC will not pay the appellant his dues, whom will he sue? Sue he must LIC which is a body corporate having perpetual succession and a common seal and which may by its name sue and be sued [section (3)2 ibid]. Because he has to sue so under the express provisions of law, neither superposition of the Central Government nor subjection to the Central Government as noticed vanishes. And the appellant, an auditor of LIC, holds this office of profit under the Central Government without whose pleasure he could not have been where he is and could not have either drawn the remuneration he is drawing. Another test the learned Advocate-General propounds is: where is the office of the appellant Qua auditor? It is in LIC. What though that is so? To hold an office of profit under the Government of India one need not have his office in the secretariat buildings at New Delhi or in any building owned or rented by the Central Government. The very nature of the office the appellant holds under the Government of India demands that his office must be housed in LIC whose tomes of books and registers he has to scrutinize. Location of the office contributes little here. In the third place, to accept the learned Advocate-General''s contention is to ignore the object of the salutary provisions the like of which are in Article 102(1) (a) of the Constitution. Cf. Article 191(1) (a) ibid. The object is to prevent a conflict between interest and duty. A member of a House of Parliament (here the House of the People of the Lok Sabha), as the appellant is, owing his appointment as an auditor of LIC and his remuneration too (Rs. 29,000/- for 1960-the amount is irrelevant) to the Government of India though from LIC''s fund can hardly be expected to do his duty for which the electors have chosen him as a member. Appearances must necessarily be in favour of his trying to ingratiate himself with the executive, with the Government of India. Even the most lionhearted will not have the heart to criticize the action of the Government in the House when criticism is due. He will therefore cease to be a live member alert to his duty. He will instead be a member who is ''dead'' and unequal to his duty as a chosen one of the people. If it is said, though that has not been said, that the appellant is much more than lion-hearted ready to brave all sorts of perils affecting his personal interest, the riposte is that Article 102(1) (a) ibid is such as taboos a member of either House of Parliament being "exposed to temptation or even to the semblance of temptation", to quote the words of Lord Esher, M.R. in (1) Nutton v. Wilson, L.R. [1889] " 22 Q.B. 744. disqualifying a member of the local board by reason of being concerned in contracts entered into by the board. The principle is the same -be it a contract [of. section 7(d) of the Representation of the People Act, 43 of 1951, read with Article 102(1) (e) of the Constitution] or the holding of an office of profit under the Government. It admits of no compromise, not even a tinkering. The gist of the matter, be it said at the risk of repetition, is that the appellant shall be disqualified for being chosen a member of the Lok Sabha if he holds any office of profit under the Government of India. He does hold an office of profit under the Government of India. I have stated why. He shall therefore be disqualified for being chosen a member of the Lok Sabha. That is the mandate of the Constitution [Article 102(1) (a)] with a view to preventing a clash between duty and interest which is bound to arise and thus keeping the purity of Parliament unsullied. That mandate must receive effect-and not the learned Advocate-General''s contention, if I may say so with respect.
42. If the appellant''s case is so weak about LIC, how weaker still is it about Durgapore and Hindusthan. two Government companies within the meaning of sections 2(18) and 617 of the Companies Act, 1 of 1956. By their articles of association [Durgapore''s article 152 (a) and Hindusthan''s article 143(a)], no less by section 619 (2) ibid, the Central Government on the advice of the Comptroller and Auditor-General appoints or reappoints the appellant or the firm of which the appellant is a partner (it does not matter which) as the auditor of these two Gevernment companies. No question of the previous approval rears its head here. It is a case of an appointment straightway. So the power of the Central Government to appoint the appellant to each of these two offices of profit appears to be clear enough. No less clear appears to be its power to continue him in that office. The word re-appoints shows as much. The power to revoke this appointment is discernible too. In terms of section 16 of the General Clauses Act, 10 of 1897. the Central Government having the power to appoint the appellant as an auditor by virtue of authority conferred on it by section 619(2) of the Companies Act, 1 of 1956, has also the power to dismiss him in exercise of that power, unless of course a different intenaion appears. The learned Advocate -General contends that a different intention does appear in view of section 224(7) ibid which reads, in so far as it is material here:
224 ... ... ...
(7)...any auditor appointed under this section may be removed from office before the expiry of his term only by the company in general meeting, after obtaining the previous approval of the Central Government in that behalf.
43. But the appellant is not appointed an auditor "under this section", namely, section 224. He is appointed so u/s 619(2) ibid. To that extent the power of the company to appoint an auditor u/s 224 (1) ibid is no more. Indeed, this [sub-section (1) of section 224] must yield in favour of section 619(2) ibid by the very terms of sub-section (1) thereof:
619(1). In the case of a Government company, the following provisions shall apply, notwithstanding anything contained in sections 224 to 233.
44. Sub-section (2) of section 619 is a provision that follows sub-section (1). ibid. This is how Mr. Hariprasanna Mukherji answers the learned Advocate-General''s contention that sub-section (7) of section 224 manifests a contrary intention. It does not, according to him. Because the appointment of the appellant as an auditor is not u/s 224.
45. The learned Advocate-General replies that section 619(2) is there in section 224 as its sub-section (1) by incorporation. Tentatively the position seems to be this. Sections 224-233 enact general provisions about audit of companies. Section 619 enacts a special provision about audit of Government companies. So the special enactment overrules the general enactment (though they are in the same Act) in so far as one is repugnant to the other. Repugnancy is seen in the manner of appointment of an auditor for. a Government company and a non-Government company. Thus section 619(2) may be taken as being incorporated into section 224. If that is so, under this section in section 224(7) will presumably not exclude section 619 (2).
46. This need not, however, be pursued further. Because there is still another answer to the learned Advocate-General''s contention. The words- after obtaining the previous approval of the Central Government in that behalf -as they occur in section 224 (T) ibid call attention. Approval not given by the Central Government, the company is powerless. It cannot dismiss the auditor. So the Central Government holds the whip and necessarily the real power of dismissal. And. with respect, it does not appear to be correct to say, as the learned Advocate-General does, that all that the Central Government has is a power of mere appointment and no more. If Hindusthan or Durgapore will not allow the appellant to let in, (an illustration the learned Advocate-General takes), will that require the previous approval of the Central Government? He submits, it will not; it will be a breach of contract. It is hardly necessary to enter into it. All that need be said is that if this sort of shutting out the auditor is tantamount to dismissal-and what else can it be?- the previous approval of the Central Government shall be required.
47. Thus, the two conclusions come to so far are that the power to appoint or reappoint the appellant as an auditor of Durgapore and Hindusthan and the power to dismiss him vest in the Central Government. Another matter remains to be noticed: the source where-from the remuneration is drawn. The appellant is not, of course, paid from the consolidated fund of India. He is paid instead from the funds of Durgapore and Hindusthan. But that is a matter of minor importance when it is borne in mind that he earns his remuneration not because of Durgapore and Hindusthan but in spite of them. He earns what he gets as an auditor of these two Government companies, only because the Central Government has been pleased to appoint him as such.
48. It is now time to refer to authorities, though there are none determining for us the exact point we are now seized of. The starting point in a review of authorities must be the Supreme Court decision in (3) Maulana Abdul Shakoor v. Rikhab Chand and another, reported in 13 E.L.R. 149: A.I.R, 1958 S.C. 52. It will be a profitless task to notice decisions (of Election Tribunals) which precede it. Nor is it necessary to review the whole of the case law turning on the question of one being in the service of the Government.
49. The point we have been called upon to decide is not that. It is whether or not the appellant holds an office of profit under the Government. The distinction between holding an office under the Government and being in the service of the Government is fundamental. The Advocate-General, for example, (an illustration he himself-gives), holds an office under the State Government but is not a Government servant. The Government Servant Conduct Rules do not apply to him, as he says. To return to Shakoor''s case, denuded of details not material here, the facts are simple enough. Shakoor holds on a salary of Rs. 100/- a month the appointment of mohatmin (manager) in a school for teaching Persian, Arabic and Muslim theology-known as Madarsa Durgah Khwaja Sahib Akbari '' which was formerly under the Government of the Nizam of Hyderabad. The date of his filing the nomination paper that survives scrutiny by the returning officer is March 1, 1956. And the date of coming into force of the Durga Khwaja Sahib Act, 36 of 1955, is exactly that: March 1, 1956. By virtue of section 11 thereof, the committee, a statutory body created by this Act, has the power to appoint, suspend or dismiss servants of the Durga Endowment-of whom Sbakoor is one. A servant of this committee which Shakoor becomes after the passing of the Act cannot be regarded as the holder of an office of profit under the Government of India, merely because the said Government has the power to appoint or supersede the committee (sections 5 and 8 ibid) and to interfere in other ways. The Central facts emphasized are that the Government of India does not appoint Shakoor, cannot remove him and does not pay him from the revenue of India. It is accordingly held that Shakoor is not a holder of an office of profit under the Government of India and that Article 102(1) (a) of the Constitution cannot stand between him and his success at the election to the Council of States. Kapoor, J. delivering the judgment of the Court goes a little more and lays down the law in the manner following at page 157:
The power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under the Government, though payment from a source other than Government revenue is not always a decisive factor.
Again at page 158:
...the power of appointment and dismissal by the Government or control exercised by the Government is an important, consideration which determines in favour of the person holding an office of profit under the Government, but the fact that he is not paid out of the State revenue is by itself a neutral factor.
50. Translated to the facts before us. the power of appointment and dismissal of the appellant from the office ho holds of an auditor of Durgapore and Hindusthan lies with the Central Government. The fact that he is paid not out of the consolidated fund of India but out of the funds of Durgapore and Hindusthan is not a decisive factor. A neutral factor, its importance appears to be practically nil in the circumstances here which look like an order on Dur gapore and Hindusthan from the Government of India reading: Here is the auditor we have appointed u/s 619(2) of the Companies Act. 1 of 1956. This is the remuneration we have fixed for him u/s 224(8) (a) ibid. Pay him so.
51. The command on LIC reads almost that: u/s 25 of the Life Insurance Corporation Act, 31 of 1956, we accord our approval to the appointment of the auditor you have proposed and this is the remuneration we fix. Pay him accordingly.
52. The only difference in the appointment of the appellant an auditor of LIC is that LIC makes the formal appointment. But the appointment in substance is made by the Government of India. That denotes the power to appoint-the first "important factor" the Supreme Court lays down. And certainly it discloses "control exercised by" the Government of India which his Lordship (Kapoor, J.) holds to be "an important consideration".
53. To section 16 of the General Clauses Act, 10 of 1897, again. The power to appoint includes the power to dismiss. But LIC''s power to appoint the appellant an auditor is not an absolute one A condition precedent is attached to it the previous approval of the Central Government. The power to dismiss must therefore be subject to the same condition which is impliedly there LIC wanting to dismiss the appellant and the Central Government not agreeing, the appellant cannot be dismissed. So the power of dismissal is, in the ultimate analysis, with the Central Government too. Thus the important factors the Supreme Court formulates with a view to determining whether or not a person holds an office of profit under the Government of India exist here also.
54. In Shakoor''s case the Supreme Court notices the difference in language between Articles 58(2) and 66(4) of the Constitution on the one hand and Article 102(1) (a) ibid on the other and observes at page 154 of the report
Whereas in the case of the President and Vice-President the holding of an office of profit under an authority subject to the control of the Government is a disqualification, it is not so prescribed in the case of members of the Legislatures.
55. The learned Advocate-General also invites our attention to this difference. But nothing turns on it. The appellant holds an office of profit under the Government of India for reasons set out above. Not that he holds an office of profit under an authority, such as LIC, Durgapore and Hindusthan, subject to the control of the Government of India.
56. Following Shakoor''s case and relying on the tests laid down therein, the Bombay High Court disqualifies, under Article 191(1) (a) of the Constitution, an Employees'' State Insurance medical practitioner who was accepted for service by the Surgeon-General, was removable by the State Government and had his remuneration (fixed by the State Government) partly met out of the revenues of the State: (4) Dr. Deorao Lakshman Anande v.. Keshav Lakshman Borkar: 13 E.L.R. 331.
57. Other cases referred to at the Bar on behalf of the appellant do not help, (9) G. Narayanaswamy Naidu v. C. Krishnamurthi and another, 14 E.L.R. 21, is a Bench decision of the Madras High Court where Rajagopala Ayyangar, J. delivering the judgment of the Court holds after an elaborate discussion and after having noticed Shakoor''s case that LIC is neither a department nor an agent of the Government and that service under LIC is not service under the Government of India within Article 191 (1) (a) of the Constitution. In the case in hand the appellant cannot flee Article 102(1) (a) ibid that way. Because the finding comes to is that he holds offices of profit under the Government of India. Tamlin v. Hannaford (8) [1950] 1 K.B. 18 holding that the Transport Commission is not an agent of the Crown merits a like treatment, no such question arising here on facts found. Equally ineffective is the reference to (10) Subodh Ranjan Ghosh v. Sindri Fertilisers and Chemicals Ltd. and another, AIR 1957 Patna 10, which is still another case to emphasize that servants of a body corporate like Sindri Fertilisers and Chemicals Ltd., a company having a separatelegal entity, are not servants of the Union Government, even though the President of India in whom the ownership vests can issue directives upon the company which is bound to comply with them. The appellant before us is not being deprived of the fruits of his hard-fought election and the resulting success by 32,470 votes on anything like that. His election is being declared void on the ground that by the accepted tests referred to above he holds offices of profit under the Government of India and has therefore disqualified himself for being chosen as a member of the Lok Sabha. Sm. Ena Ghosh v. State of West Bengal and others (11) AIR 1962 Calcutta 420, decides that the Vice Principal of a women''s college sponsored by the Government does not hold a civil post under the State within the meaning of Art. 311 of the Constitution, even though her appointment and conditions of service require the approval of the Government. To read more into it will be to misread it. The tests I have gone by to determine if the appellant holds an office of profit under the Government of India-tests which the Supreme Court calls "important factors", "important consideration"- stand. Sinha, J. does not regard them as "conclusive" for the determination of the point before him. His Lordship prefers the test (also inconclusive) of "Governmental function" which he considers to be the most satisfactory one on facts obtaining there and which he holds to mean the day by day executive administration of the Government. But the point for decision in this election appeal is whether or not the appellant holds an office of profit under the Government of India. The point for decision is not if the appellant is a servant of the said Government, So the outlook in the case before us is not the outlok in the case before Sinha, J.
58. In view of all that goes before, the conclusion I have reached is that the appellant as the auditor of LIC, Durgapore and Hindusthan holds offices of profit under the Government of India and that Article 102(1) (a) of the Constitution disqualifies him for being chosen sa a member of the House of the People.
59. The appellant has still another hurdle to overcome and not overcome. The clear admission in paragraph 10 B of his written statement is that he "is nominated by the Government of "West Bengal to be a member of the Board of Directors of the Corporation." (The West Bengal Financial Corporation come into being u/s 3 of the State Financial Corporation Act, 63 of 1951, has been shortened into "the Corporation"). The admission concludes: "He (the appellant) is paid remuneration for attending the Board and Committee meetings out of the funds of the Corporation". By averring so the appellant relieves his adversaries of the onus that lies on them and almost proves their case. Almost, because in spite of this averment it is open to the appellant to prove that the remuneration he is paid is not by way of profit but as "the out-of-pocket expenses which he has to incur" for attending the meetings of the board and the committee, as in Ravanna Subanna v. G.S. Kaggeerappa, (14) AIR 1954 S.C. 653. But he does not examine himself nor any witness at the trial, though the Tribunal goes out of its way to afford him an added opportunity to do so. A party, he does not pledge his oath on a matter which is within his special knowledge. That is the strongest possible circumstance going to discredit the truth of his case that the office of a nominated director of the Corporation (which he holds) is not an office of profit [Murugesam Pillai v. D. Gnana Sambandha Pandara Sannadhi: (16) 44 LA. 98, Gurbaksh Singh v. Gurdial Singh and another: (17) 32 C.W.N. 119 (P.O.) and Mt. Lal Kunwar v. Chiranji Lal (18) 37 I.A. 1]. To this be added that u/s 16 ibid such a one, not the managing director nor a servant of the State Government, shall be paid fees for attending meetings of the board and the executive committee of which he is apparently a member, as the use of the expression "committee meetings" in the written statement goes to suggest. Section 12(a) ibid the learned junior counsel for the appellant (Mr. Ghose) refers to cannot help matters forward for him. It is nobody''s case that the appellant is a salaried official of the Corporation. A managing director he is not. He has therefore rightly been a director, without coming on the edge of section 12(a). But as a director he earns fees, section 16 ibid providing so. The same questions therefore arise: what fees ? Only for reimbursement of actual expenses incurred for attending the meetings or something more?
60. It may therefore be presumed that had the appellant stepped into the witness-box (which he deliberately avoided in spite of the Tribunal having been so generous to him), he could not have supported his case of the office of a director of the Corporation not being an office of profit By parity of reasoning the appellant cannot take refuge under ''compensatory allowance'', as defined in section 2(a) of the Parliament (Preventation of Disqualification) Act, 10 of 1959. There is not even a soupcon of evidence on which a finding of his fees being a compensatory allowance can rest. So the contention to that effect must fail. The other ingredients under Article 102(1) (a) of the Constitution are there only to be seen. The State Government nominates the appellant as a director [section 10(a) of the State Financial Corporations Act, 63 of 1951]. In plain language, it means that the State Government appoints him a director-an office which he holds during the pleasure of the said Government [section 11(1) ibid]. The State Government may remove him (section 13 ibid). Resign if he will, he must give notice thereof in writing to the State Government (section 14 ibid). Nothing more requires to be said to find that the appellant holds this office of profit, the office of a director of the Corporation, very much under the State Government Once that is found, Article 102(1) (a) reappears to disqualify him for being chosen a member of the House of the People, though section 7(e) of the Representation of the People Act, 43 of 1951, will not, as contended by the learned Advocate-General, conceded by Mr. Hariprasanna Mukherji and found by the Tribunal. It will not, because for this Parliamentary election the State Government is not the appropriate Government within the meaning of section 7(e) read with section 9(1) (a) ibid. The Central Government is. But it has no share in the Corporation-not to speak of 25 per cent share. For these reasons I am for dismissing the appeal as my learned brother is-and in the manner proposed by him.
