PETITIONER:
\nGURUGOBINDA BASU<\/p>\n
Vs.<\/p>\n
RESPONDENT:
\nSANKARI PRASAD GHOSAL and ORS.<\/p>\n
DATE OF JUDGMENT:
\n14\/08\/1963<\/p>\n
BENCH:
\nDAS, S.K.
\nBENCH:
\nDAS, S.K.
\nSUBBARAO, K.
\nDAYAL, RAGHUBAR
\nAYYANGAR, N. RAJAGOPALA
\nMUDHOLKAR, J.R.<\/p>\n
CITATION:
\n1964 AIR 254 1964 SCR (4) 311
\nCITATOR INFO :
\nD 1969 SC 744 (7,10)
\nR 1975 SC 575 (4)
\nR 1976 SC2283 (37,39,40)
\nR 1981 SC 658 (9)
\nC 1984 SC 161 (27)
\nE 1984 SC 385 (8,9)
\nR 1984 SC 399 (12)
\nR 1985 SC 211 (15,18)
\nR 1986 SC1571 (67)
\nRF 1992 SC1959 (8,13,16)
\nACT:
\nElections-Appellant a chartered accountant and a partner of
\na firm of auditors-The firm appointed as auditors of two
\nGovernment owned companies-Appellant elected to Lok Sabha-
\nWhether he holds an office of profit under the Union
\nGovernmentTests to be applied-Constitution of India, Art.
\n102(1)(a)-Indian Companies Act, 1956 (I of 1956) ss. 224,
\n227, 619-Representation of the People Act, 1950 (43 of
\n1950). s. 116.<\/p>\n
<\/p>\n
HEADNOTE:
\nThe appellant was a chartered accountant and a partner of a
\nfirm of auditors. This firm acted as auditors of two
\ncompanies, among others, registered under the Indian
\nCompanies Act, 1956, the entirety of the shares of one of
\nwhich are owned by the Union Government and the entirety of
\nthe shares of the other by the West Bengal Government. The
\nappellant was declared elected to the Lok Sabha. His
\nelection was challenged by two voters of the constituency by
\nmeans of an election petition. The main ground raised was
\nthat the appellant was at the relevant period the holder of
\nan office of profit under the Government of India as well as
\nthe State Government and hence he was disqualified from
\nstanding for election under Art. 102(1)(a) of the
\nConstitution. The Election Tribunal accepted this
\ncontention and declared the election of the appellant void.
\nThe appellant filed an appeal before the High Court in which
\nhe did not succeed. The present appeal was by virtue of a
\ncertificate granted by the High Court under Art. 133(1)(c)
\nof the Constitution.
\nIt was contended before this Court that on a true
\nconstruction of the expression “under the Government of
\nIndia or the Government of any State” occurring in cl. (a)
\nof Art. 102 (I.) of the Constitution the appellant could not
\nbe said to hold an office of profit under the Government of
\nIndia or the Government of West Bengal. It was argued that
\nthe various tests, namely, who has the power to appoint, who
\nhas the right to remove, who pays the remuneration, what are
\nthe functions and who exercises the control should all co-
\nexist and each must show subordination to the Government.
\nThe fulfillment of some of the tests alone, would not be
\nsufficient to determine that a person holds an office of
\nprofit under the Government. It was contented on behalf of
\nthe respondent that the tests were not cumulative and that
\nthe court should look to the substance rather than to the
\nform.
\nHeld :
\n(i)For holding an office of profit, under the Government a
\nperson need not be in the service of the Government and
\nthere need not be any relationship of master and servant
\nbetween them.
\n312
\n(ii)The examination of the various provisions of the Com-
\npanies Act, 1956 (ss. 224, 227, 618 and 619) showed that so
\nfar as the two companies in question were concerned the
\nappellant was appointed as an auditor by the Central
\nGovernment, was removable by the Central Government, that
\nthe Comptroller and the Auditor General of India exercised
\nfull control over him and that his remuneration was fixed by
\nthe Central Government under sub-s. (8) of s. 224 of the
\nCompanies Act though it was paid by the companies concerned.
\n(iii)Where the several elements, the power to appoint,
\nthe power to dismiss, the power to control and give
\ndirections as to the manner in which the duties of the
\noffice are to be performed and the power to determine the
\nquestion of remuneration are all present in a given case
\nthen the officer in question holds the office under the
\nauthority so empowered. It is not necessary that all these
\nmust co-exist nor is the fact that the source from which the
\nremuneration is paid is not from public revenue decisive.
\n(iv)The appellant held an office of profit under the
\nGovernment of India within the meaning of Art. 102(1)(a) of
\nthe Constitution of India and as such he was disqualified
\nfor being chosen as a member of Parliament.
\nMaulana Abdul Shakur v. Rikhab Chand, [1958] S.C.R. 387,
\ndistinguished.
\nRamappa v. Sangappa, [1959] S. C. R. 1167, referred to.<\/p>\n
<\/p>\n
JUDGMENT:
\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 486 of 1963.
\nAppeal from the judgment and order dated September 27, 1962,
\nof the Calcutta High Court in Appeal from Original Decree
\nNo. 424 of 1962.
\nS.Chaudhuri, R. C. Deb and S. S. Shukla, for the
\nappellant.
\nHari’ Prosonna Mukherjee, K. G. Hazra Chaudhari and D. N.
\nMukherjee, for the respondents Nos. 1 and 2.
\nAugust 14, 1963. The Judgment of the Court was delivered by
\nS.K. DAS, Acting Chief Justice.-This is an appeal on a
\ncertificate granted by the High Court of Calcutta under Art.
\n133(1)(c) of the Constitution. No preliminary objection
\nhaving been taken as to the competency of the certificate,
\nwe have heard the appeal on merits.
\nThe short facts giving rise to the appeal are these The
\nappellant before us is Gurugobinda Basu who is a chartered
\naccountant and a partner of the firm. of auditors carrying
\non business under the name and style of G. Basu and Company.
\nThis firm acted as the auditor of certain
\n313
\ncompanies and corporations, such as the Life Insurance
\nCorporation of India, the Durgapur Projects Ltd., and the
\nHindustan Steel Ltd., on payment of certain remuneration.
\nThe appellant was also a Director of the West Bengal Fi-
\nnancial Corporation having been appointed or nominated as
\nsuch by the State Government of West Bengal. The
\nappointment carried with it the right to receive fees or
\nremuneration as director of the said corporation.
\nIn February-March, 1962, the appellant was elected to the
\nHouse of the People from Constituency No. 34 (Burdwan
\nParliamentary Constituency) which is a single member
\nconstituency. The election was held in February, 1962.
\nThere were two candidates, namely, the appellant and
\nrespondent No. 3 to this appeal. The appellant was declared
\nelected on March 1, 1962, he having secured 1,55,485 votes
\nas against his rival who secured 1,23,015 votes. This
\nelection was challenged by two voters of the said
\nconstituency by means of an election petition dated April
\n10, 1962. The challenge was founded on two grounds : (1)
\nthat the appellant was, at the relevant time, the holder of
\noffices of profit both under the Government of India and the
\nGovernment of West Bengal and this disqualified him from
\nstanding for election under Art. 102 (1)(a) of the
\nConstitution; and (2) that he was guilty of certain corrupt
\npractices which vitiated his election. The second ground
\nwas abandoned at the trial, and we are no longer concerned
\nwith it.
\nThe election Tribunal held that the appellant was a holder
\nof offices of profit both under the Government of India and
\nthe Government of West Bengal and was therefore disqualified
\nfrom standing for election under Art. 102(1)(a) of the
\nConstitution. The Election Tribunal accordingly allowed the
\nelection petition and declared that the election of the
\nappellant to the House of the People was void. There was an
\nappeal to the High Court under s. 116-A of the
\nRepresentation of the People Act, 1951. The High Court
\ndismissed the appeal, but granted a certificate of fitness
\nunder Art. 133(1) (c) of the Constitution.
\nThe only question before us is whether the appellant was
\ndisqualified from being chosen as, and for being, a member
\nof the House of the People under Art. 102(1)(A) of the
\nConstitution. The answer to the question depends
\n21-2 S C India\/6
\n314
\non whether the appellant held any offices of profit under
\nthe Government of India or the Government of any State other
\nthan such offices as had been declared by Parliament by law
\nnot to disqualify their holder. It has not been seriously
\ndisputed before us that the office of auditor which the
\nappellant held as partner of the firm of G. Basu and Company
\nwas an office of profit. It has not been contended by the
\nappellant before us that the office of profit which he held
\nhad been declared by Parliament by law not to disqualify the
\nholder. Therefore the arguments before us have proceeded
\nentirely on the question as to the true scope and meaning of
\nthe expression “under the Government of India or the
\nGovernment of any State” occurring in cl. (a) of Art. 102(1)
\nof the Constitution. The contention on behalf of the
\nappellant has been that on a true construction of the
\naforesaid expression, the appellant cannot be said to hold
\nan office of profit under the Government of India or the
\nGovernment of West Bengal. On behalf of the respondents the
\ncontention is that the office of auditor which the appellant
\nholds is an office of profit under the Government of India
\nin respect of the Life Insurance Corporation of India, the
\nDurgapur Projects Ltd. and the Hindustan Steel Ltd., and in
\nrespect of the West Bengal Financial Corporation of which
\nthe appellant is a Director appointed by the Government of
\nWest Bengal, he holds an office of profit under the
\nGovernment of West Bengal. These are the respective
\ncontentions which fall for consideration in the present
\nappeal.
\nIt is necessary to state here that if in respect of any of
\nthe four companies or corporations it be held that the
\nappellant holds an office of profit under the Government, be
\nit under the Government of India or the Government of West
\nBengal, then the appeal must be dismissed. It would be
\nunnecessary then to consider whether the office of profit
\nwhich the appellant holds in respect of the other companies
\nis an office of profit under the Government or not. We
\nwould therefore take up first the two companies, namely, the
\nDurgapur Projects Ltd., and the Hindustan Steel Ltd., which
\nare 100% Government companies and consider the respective
\ncontentions of the parties before us in respect of the
\noffice of auditor which the appellant holds in these two
\ncompanies. If we hold that in
\n315
\nrespect of any of these two companies the appellant holds an
\noffice of profit under the Government of India, then it
\nwould be unnecessary to consider the position of the
\nappellant in any of the other companies.
\nIt is not disputed that the Hindustan Steel Ltd., and the
\nDurgapur Projects Ltd. are Government companies within the
\nmeaning of s. 2(18) read with s. 617 of tile Indian
\nCompanies Act, 1956. It has been stated before us that 100%
\nof the shares of the Durgapur Projects Ltd. are held by the
\nGovernment of West Bengal and 100% of the shares of the
\nHindustan Steel Ltd. are held by the Union Government. We
\nmay now read s. 619 of the Indian Companies Act, 1956.
\n“(1) In the case of a Government company, the
\nfollowing provisions shall apply,
\nnotwithstanding any thing contained in
\nsections 224 to 233.
\n(2)The auditor of a Government company
\nshall be appointed or re-appointed by the
\nCentral Government ,on the advice of the
\nComptroller and Auditor-General of India.
\n(3)The Comptroller and Auditor-General of In-
\ndia shall have power-
\n(a)to direct the manner in which the
\ncompany’s accounts shall be audited by the
\nauditor appointed in pursuance of sub-section
\n(2) and to give such auditor instructions in
\nregard to any matters relating to the
\nperformance of his functions as such :
\n(b) to conduct a supplementary or test audit
\nof the company’s accounts by such person or
\npersons as he may authorise in this behalf;
\nand for the purposes of such audit, to require
\ninformation or additional information to be
\nfurnished to any person or persons so
\nauthorised, on such matters, by such person or
\npersons, and in such form, as the Comptroller
\nand Auditor-General may, by general or special
\norder, direct.
\n(4) The auditor aforesaid shall submit a copy
\nof his audit report to the Comptroller and
\nAuditor-General of India who shall have the
\nright to comment upon, or supplement, the
\naudit report in such manner ,as he may think
\nfit.
\n(5) Any such comments upon, or supplement
\n316
\nthe audit report shall be placed before the
\nannual general meeting of the company at the
\nsame time and in the same manner as the audit
\nreport.”
\nIt is clear from the aforesaid provisions that not with
\nstanding s. 224 of the Act which empowers every company to
\nappoint an auditor or auditors at each annual general
\nmeetings, the appointment of an auditor of a Government
\ncompany rests solely with the Central Government and in
\nmaking such appointment the Central Government takes the
\nadvice of the Comptroller and Auditor-General of India.
\nUnder s. 224(7) of the Act an auditor appointed under s. 224
\nmay be removed from office before the expiry of his term
\nonly by the company in general meeting, after obtaining the
\nprevious approval of the Central Government in that behalf.
\nThe remuneration of the auditors of a company is to be fixed
\nin accordance with the provisions of sub-s. (8) of s. 224.
\nIt is clear however that sub-s. (7) of s. 224 does not apply
\nto a Government company because the auditor of a Government
\ncompany is not appointed under s. 224 of the Act, but is
\nappointed under sub-s. (2) of s. 619 of the Act. It is
\nclear therefore that the appointment of an auditor in a
\nGovernment company rests solely with the Central Government
\nand so also his removal from office. Under sub-s. (3) of s.
\n619 the Comptroller and Auditor-General of India exercises
\ncontrol over the auditor of a Government company in respect
\nof various matters including the manner in which the
\ncompany’s accounts shall be audited. The Auditor-General
\nhas also the right to give such auditor instructions in
\nregard to any matter relating to the performance of his
\nfunctions as such. The Auditor-General may conduct a
\nsupplementary or test audit of the company’s accounts. by
\nsuch person or persons as he may authorise in this behalf.
\nIn other words, the Comptroller and Auditor-General of India
\nexercises full control over the auditors of a Government
\ncompany. The powers and duties of auditors in respect of
\ncompanies other than Government companies are laid down in
\ns. 227 of the Act but by virtue of sub-s. (1) of s. 619 of
\nthe Act, the provisions in s. 227 of the Act do not apply to
\na Government company because a Government company is subject
\nto the provisions ,of s. 619 of the Act. Under s. 619-A of
\nthe Act, where the
\n317
\nCentral Government is a member of a Government company, an
\nannual report of the working and affairs of the company has
\nto be prepared and laid before both Houses of Parliament
\nwith a copy of the audit report and the comments made by the
\nComptroller and Auditor General. Under s. 620 of the Act
\nthe Central Government .may by notification direct that any
\nof the provisions of the Act, other than ss. 618, 619 and
\n639, shall not apply. to any Government company.
\nThe net result of the aforesaid provisions is that so far as
\nthe Durgapur Projects Ltd. and the Hindustan Steel Ltd. are
\nconcerned, the appellant was appointed an auditor by the
\nCentral Government; he is removable by the Central Gov-
\nernment and the Comptroller and Auditor-General of India
\nexercises full control over him. His remuneration is fixed
\nby the Central Government under sub-s. (8) of s. 224 of the
\nAct though it is paid by the company.
\nIn these circumstances the question is, does the appellant
\nhold an office of profit under the Central Government? We
\nmay now read Art. 102(1) of the Constitution.
\n102. (1) A person shall be disqualified for
\nbeing chosen as, and for being, a member of
\neither House of Parliament-
\n(a) if he holds any office of profit under the
\nGovernment of India or the Government of any
\nState, other than an office declared by
\nParliament by law not to disqualify its holder
\n(b)
\n(c)
\n(d)
\nWe have stated earlier that the sole question before us is
\nwhether the office of profit which the appellant undoubtedly
\nholds as auditor of the Durgapur Projects Ltd., and the
\nHindustan Steel Ltd. is or is not under the Government of
\nIndia. According to Mr. Chaudhuri who has argued the appeal
\non behalf of the appellant, the expression “under the
\nGovernment, occurring in Art. 102(1)(a) implies sub-
\nordination to Government. His argument is that ordinarily
\nthere are five tests of such subordination, namely, (1) whe-
\nther Government make-, the appointment to the office;
\n(2) whether Government has the right to remove or dis-
\n318
\nmiss the holder of office; (3) whether Government pays the
\nremuneration; (4) what are the functions which the holder of
\nthe office performs and does he perform them for Government;
\nand (5) does Government exercise any control over the
\nperformance of those functions. His argument further is
\nthat the tests must all co-exist and each must show
\nsubordination to -Government so that the fulfillment of only
\nsome of the tests is not enough to bring the holder of the
\noffice under the Government. According to him all the tests
\nmust be fulfilled before it can be said that the holder of
\nthe office is under the Government. His contention is that
\nthe Election Tribunal and the High Court were in error in
\nholding that the appellant was a holder of office under the
\nGovernment, because they misconstrued the scope and effect
\nof the expression “under the Government” in Art. 102(1)(a)
\nof the Constitution. He has contended that tests (3), (4)
\nand (5) adverted to above are not fulfilled in the present
\ncase. The appellant gets his remuneration from the company
\nthough fixed by Government; he performs functions for the
\ncompany and he is controlled by the Comptroller and Auditor-
\nGeneral who is different from the Government.
\nOn behalf of the respondents it is argued that the tests are
\nnot cumulative in the sense contended for by the appellant,
\nand what has to be considered is the substance of the matter
\nwhich must be determined by a consideration of all the
\nfactors present in a case, and whether stress will be laid
\non one factor or the other will depend on the circumstances
\nof each particular case. According to the respondents, the
\ntests of appointment and dismissal are important tests in
\nthe present case, and in the matter of a company which is a
\n100% Government company, the payment of remuneration fixed
\nby Government, the performance of the functions for the
\ncompany and the exercise of control by the Comptroller and
\nAuditor-General, looked at from the point of view of
\nsubstance and taken in conjunction with the power of
\nappointment and dismissal, really bring the holder of the
\noffice under the Government which appoints him.
\nOne point may be cleared up at this stage. On behalf of the
\nrespondents no question has been raised that the Durgapur
\nProjects, Limited, or the Hindustan Steel, Limi-
\n319
\nted, is a department of Government or an emanation ‘of
\nGovernments question Which was considered at some length in
\nNarayanaswamy v. Krishnamurthi(1). Learned counsel for the
\nrespondents has been content to argue before us on the basis
\nthat the two companies having been incorporated under the
\nIndian Companies Act, 1956 are separate legal entities
\ndistinct from Government. Even on that footing he has
\ncontended that in view of the provisions of s. 619 and other
\nprovisions of the Indian Companies Act, 1956, an auditor
\nappointed by the Central Government and liable to be removed
\nfrom office by the same Government, is a holder of an office
\nof profit under the Government in respect of a company which
\nis really a hundred per cent Government company.
\nWe think that this contention is correct. We agree with the
\nHigh Court that for holding an office of profit under the
\nGovernment, one need not be in the service of Government and
\nthere need be no relationship of master and servant between
\nthem., The Constitution itself makes a distinction between
\n‘the holder of an office of profit under the Government’ and
\n‘the holder of a post or service under the Government’; see
\nArts. 309 and 314. The Constitution has also made a
\ndistinction between ‘the holder of an office of profit under
\nthe Government’ and ‘the holder of an office of profit
\nunder a local or other authority subject to the control of
\nGovernment’; see Art. 58(2) and 66(4). In Maulana Abdul
\nShakur v. Rikhab Chand and another(1) the appellant was the
\nmanager of a school run. by a committee of management formed
\nunder,the provisions of the Durgah Khwaja, Saheb Act, 1955.
\nHe was appointed by the administrator of the Durgah and was
\npaid Rs. 100 per month. The question arose whether he was
\ndisqualified to be chosen as a member of Parliament in view
\nof Art. 102(1)(a) of the Constitution. It was contended for
\nthe respondent in that case that under ss. 5 and 9 of the
\nDurgah Khwaja Saheb Act, 1955 the Government of India had
\nthe power of, appointment and removal of members of the
\ncommittee of management as also the power to appoint the
\nadministrator in consultation with the committee; therefore
\nthe appellant was under the control and super-
\n(1) I.L.R. [1958] Mad-513.
\n(2) [1958] S.C.R. 387
\n320
\nvision of the Government and that therefore he was holding
\nan office of profit under the Government of India. This
\ncontention was repelled and this court pointed out the
\ndistinction between ‘the holder of an office of profit under
\nthe Government’ and ‘the holder of an office of profit under
\nsome other authority subject to the control of Government’.
\nMr. Chaudhuri has contended before us that the decision is
\nin his favour. He has argued that the appellant in the
\npresent case holds an office of profit under the Durgapur
\nProjects Ltd. and the Hindustan Steel Ltd. which are
\nincorporated under the Indian Companies Act; the fact that
\nthe Comptroller and Auditor-General or even the Government
\nof India exercises some control does not make the appellant
\nany the less a holder of office under the two companies. We
\ndo not think that this line of argument is correct. It has
\nto be noted that in Maulana Abdul Shakur’s case(2) the
\nappointment of the appellant in that case was not made by
\nthe Government nor was he liable to be dismissed by the
\nGovernment. The appointment was made by the administrator
\nof a committee and he was liable to be dismissed by the same
\nbody. In these circumstances this Court observed:
\n“No doubt the Committee of the Durgah
\nEndowment is to be appointed by the Government
\nof India but it is a body corporate with
\nperpetual succession acting, within the four
\ncorners of the Act. Merely because the
\nCommittee or the members of the Committee are
\nremovable by the Government of India or the
\nCommittee can make bye-laws prescribing the
\nduties and powers of its employees cannot in
\nour opinion convert the servants of the
\nCommittee into holders of office of profit
\nunder the Government of India. The appellant
\nis neither appointed by the Government of
\nIndia nor is removable by the Government of
\nIndia nor is he paid out of the revenues of
\nIndia. The power of the Government to appoint
\na person to an office of profit or to continue
\nhim in that office ‘or revoke his appointment
\nat their discretion and payment from out of
\nGovernment revenues are important factors in
\ndetermining whether that person is holding an
\noffice of profit under the Government though
\npay-
\n[1958] S.C.R. 387.
\n321
\nment from a source other than Government revenue is not
\nalways a decisive factor. But the appointment of the
\nappellant does not come within this test.
\n” It is clear from the aforesaid observations
\nthat in Maulana Abdul Shakur’s case(1) the
\nfactors which were held to be ,,decisive were
\n(a) the power of the Government to appoint a
\nperson to an office of profit or to continue
\nhim in that ,office or revoke his appointment
\nat their discretion, and (b) payment from out
\nof Government revenues, though it was pointed
\nout that payment from a source other than
\nGovernment revenues was not always a decisive
\nfactor. In the case before us the appointment
\nof the appellant :as also his continuance in
\noffice rests solely with the Government of
\nIndia in respect of the two companies. His
\nremuneration is also fixed by Government. We
\nassume for the purpose of this appeal, that
\nthe two companies are statutory bodies
\ndistinct from Government but we must remember
\nat the same time that they are Government com-
\npanies within the meaning of the Indian
\nCompanies Act, 1956 and 1000% of the shares
\nare held by the Government. We must also
\nremember that in the performance of his
\nfunctions the appellant is controlled by the
\nComptroller and Auditor-General who himself is
\nundoubtedly holder -of an office of profit
\nunder the Government, though there are
\nsafeguards in the Constitution as to his
\ntenure of office -and removability therefrom.
\nUnder Art. 148 of the Constitution the
\nComptroller and Auditor-General of India is
\nappointed by the President and he can be
\nremoved from office in like manner and on the
\nlike grounds as a judge ,of the Supreme Court.
\nThe salary and other conditions of service of
\nthe Comptroller and Auditor-General shall be
\nsuch as may be determined by Parliament by law
\nand until they are so determined shall be as
\nspecified in the Second Schedule to the
\nConstitution. Under cl. (4) of Art.
\n148 the
\nComptroller and Auditor-General is not
\neligible for further office either under the
\nGovernment of India or under the Government of
\nany ‘State after he has ceased to hold his
\noffice. Cl. (5) of the said Article lays down
\nthat subject to the provisions of the
\n‘Constitution and of any law made by
\nParliament, the administrative powers of the
\nComptroller and Auditor-
\n(1)[1958] S.C.R. 387.
\n322
\nGeneral shall be such as may be prescribed by rules made by
\nthe President after consultation with the Comptroller and
\nAuditor-General. Under Art. 149 of the Constitution the
\nComptroller and Auditor-General shall perform such duties
\nand exercise such powers in relation to the accounts of the
\nUnion and of the States and of any other authority or body
\nas may be prescribed by or under any law made by Parliament
\nand, until provision in that behalf is so made, shall
\nperform such duties and exercise such powers in relation to
\nthe accounts of the Union and of the States as were
\nconferred on or exercisable by the Auditor General of India
\nimmediately before the commencement of the Constitution in
\nrelation to the accounts of the Dominion of India and of the
\nProvinces respectively. The reports of the Comptroller and
\nAuditor-General of India relating to the accounts of the
\nUnion have to be submitted to the President and the reports
\nof the Comptroller and Auditor General relating to the
\naccounts of 2 State have to be submitted to the Governor.
\nFrom the aforesaid provisions it appears to us that the
\nComptroller and Auditor-General is himself a holder of an
\noffice of profit under the Government of India, being
\nappointed by the President and his administrative powers arc
\nsuch as may be prescribed by rules made by the President,
\nsubject to the provisions of the Constitution and of any law
\nmade by Parliament. Therefore if we look at the matter from
\nthe point of view of substance rather than of form, it
\nappears to us that the appellant as the holder of an office
\nof profit in the two Government companies, the Durgapur
\nProjects Ltd. and the Hindustan Steel Ltd., is really under
\nthe Government of India; he is appointed by the Government
\nof India, lie is removable from office by the Government of
\nIndia; he performs functions for two Government companies
\nunder the control of the Comptroller and Auditor-General who
\nhimself is appointed by the President and whose
\nadministrative powers may be controlled by rules made by the
\nPresident.
\nIn Ramappa v. Sangappa(1) the question arose as to whether
\nthe holder of a village office who has a hereditary right to
\nit is disqualified under Art. 191 of the’ Constitution,
\nwhich is the counterpart of Art. 102, in the matter
\n(1) [1959]1 S.C.R. 1167.
\n323
\nof membership of the State Legislature. It was observed
\ntherein:
\n“The Government makes the appointment to the
\noffice though it may be that it has under the
\nstatute no option but to appoint the heir to
\nthe office if he has fulfilled the statutory
\nrequirements. The office is, therefore, held
\nby reason of the appointment by the Government
\nand not simply because of a hereditary right
\nto it. The fact that the Government cannot
\nrefuse to make the appointment does not alter
\nthe situation.”
\nThere again the decisive test was held to be the test of
\nappointment. In view of these decisions we cannot accede to
\nthe submission of Mr. Chaudhury that the several factors
\nwhich enter into the determination of this question-the
\nappointing authority, the authority vested with power to
\nterminate the appointment, the authority which determines
\nthe remuneration, the source from which the remuneration is
\npaid, and the authority vested with power to control the
\nmanner in which the duties of the office are discharged and
\nto give directions in that behalf-must all co-exist and each
\nmust show subordination to Government and that it must
\nnecessarily follow that if one of the elements is, absent,
\nthe test of a person holding an office under the Government,
\nCentral or State, is not satisfied. The cases we have
\nreferred to specifically point out that the circumstance
\nthat the source from which the remuneration is paid is not
\nfrom public revenue is a neutral factor-not decisive of the
\nquestion. As we have said earlier whether stress will be
\nlaid on one factor or the other will depend on the facts of
\neach case. However, we have no hesitation in saying that
\nwhere the several elements, the power to appoint, the power
\nto dismiss, the power to control and give directions as to
\nthe manner in which the duties of the office are to be
\nperformed, and the power to determine the question of
\nremuneration are all present in a given case, then the
\nofficer in question holds the office under the authority so
\nempowered.
\nFor the reasons given above we have come to the conclusion
\nthat the Election Tribunal and the High Court were right in
\ncoming to the’ conclusion that the appellant as an auditor
\n‘of the two Government companies’ held an
\n324
\noffice of profit under the Government of India within the
\nmeaning of Art. 102(1)(a) of the Constitution. As such he
\nwas disqualified for being chosen as, and for being, a
\nmember of either House of Parliament. It is unnecessary to
\nconsider the further question whether he was a holder of an
\noffice of profit either under the Government of India or the
\nGovernment of West Bengal by reason of being an auditor for
\nthe Life Insurance Corporation of India or a Director of the
\nWest Bengal Financial Corporation.
\nThe appeal accordingly fails and is dismissed with costs.
\nAppeal dismissed.<\/p>\n
<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
PETITIONER: GURUGOBINDA BASU Vs. RESPONDENT: SANKARI PRASAD GHOSAL and ORS. DATE OF JUDGMENT: 14\/08\/1963 BENCH: DAS, S.K. BENCH: DAS, S.K. SUBBARAO, K. DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R. CITATION: 1964 AIR 254 1964 SCR (4) 311 CITATOR INFO : D 1969 SC 744 (7,10) R 1975 SC 575 (4) R 1976 SC2283 (37,39,40) R … Read more<\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"fifu_image_url":"","fifu_image_alt":""},"categories":[4928],"tags":[],"amp_enabled":true,"_links":{"self":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts\/29808"}],"collection":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/comments?post=29808"}],"version-history":[{"count":0,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/posts\/29808\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/media?parent=29808"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/categories?post=29808"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.kopykitab.com\/blog\/wp-json\/wp\/v2\/tags?post=29808"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}