1963 (8) TMI 76 - SC - Indian Laws

Appellant Disqualified from Election for Holding Office of Profit Under Government, SC Upholds Tribunal's Decision.

Gurugobinda Basu Versus Sankari Prasad Ghosal and Ors.

Gurugobinda Basu Versus Sankari Prasad Ghosal and Ors. - 1963 INSC 165 Issues Involved:1. Whether the appellant was disqualified from being chosen as a member of the House of the People under Article 102(1)(a) of the Constitution due to holding an office of profit under the Government of India or the Government of West Bengal.Issue-wise Detailed Analysis:1. Disqualification under Article 102(1)(a) of the Constitution:The primary issue in this case was whether the appellant was disqualified from being elected as a member of the House of the People under Article 102(1)(a) of the Constitution, which disqualifies a person holding any office of profit under the Government of India or the Government of any State. The appellant was a chartered accountant and partner in a firm serving as auditors for several government companies, including Hindustan Steel Ltd. and Durgapur Projects Ltd., both of which are 100% government-owned companies. The appellant was also a director of the West Bengal Financial Corporation, appointed by the State Government of West Bengal.The court examined whether the appellant's role as an auditor constituted holding an office of profit under the government. The determination hinged on the interpretation of 'under the Government' in Article 102(1)(a). The court considered several factors, including the appointment and removal powers, remuneration, functions performed, and control over the performance of duties.2. Interpretation of 'Under the Government':The appellant argued that the expression 'under the Government' implied subordination to the government, and certain tests must be fulfilled, such as government appointment, removal rights, remuneration payment, performance of functions for the government, and government control over the functions. The appellant contended that not all these tests were met in his case.The respondents argued that these tests were not cumulative and that the substance of the matter should be considered. The court agreed with the respondents, emphasizing the importance of the power of appointment and dismissal, control over functions, and remuneration determination. The court noted that the appellant was appointed by the Central Government, removable by it, and his functions were controlled by the Comptroller and Auditor-General, who is a government official.3. Application to Government Companies:The court held that the appellant, as an auditor of the Durgapur Projects Ltd. and Hindustan Steel Ltd., held an office of profit under the Government of India. Despite the companies being distinct legal entities, they were 100% government-owned, and the appellant's role was subject to government control. The court highlighted that the appointment and removal by the government and control by the Comptroller and Auditor-General were decisive factors.The court referenced previous cases, emphasizing that the absence of payment from public revenue was not decisive. The overall control and appointment by the government were sufficient to establish that the appellant held an office of profit under the government.4. Conclusion:The court concluded that the appellant was disqualified under Article 102(1)(a) of the Constitution, as he held an office of profit under the Government of India. Consequently, his election to the House of the People was declared void. The court did not find it necessary to address whether the appellant held an office of profit under the Government of West Bengal or in relation to other positions, as the disqualification under the Central Government was sufficient to decide the case.The appeal was dismissed with costs, affirming the decisions of the Election Tribunal and the High Court.