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TMI Blog1963 (8) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment of West Bengal. The appointment carried with it the right to receive fees or remuneration as director of the said corporation. 3. In February - March, 1962, the appellant was elected to the House of the People from Constituency No. 34 (Burdwan Parliamentary Constituency) which is a single member constituency. The election was held in February, 1962. There were two candidates, namely, the appellant and respondent No. 3 to this appeal. The appellant was declared elected on March 1, 1962, he having secured 1,55,485 votes as against his rival who secured 1,23,015 votes. This election was challenged by two voters of the said constituency by means of an election petition dated April 10, 1962. The challenge was founded on two grounds : (1) that the appellant was, at the relevant time, the holder of offices of profit both under the Government of India and the Government of West Bengal and this disqualified him from standing for election under Art. 102(1)(a) of the Constitution; and (2) that he was guilty of certain corrupt practices which vitiated his election. The second ground was abandoned at the trial, and we are no longer concerned with it. 4. The election Tribunal held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to state that if in respect of any of the four companies or corporations it be held that the appellant holds an office of profit under the Government be it under the or the Government of India or the Government of West Bengal, then the appeal must be dismissed. It would be unnecessary then to consider whether the office of profit which the appellant holds in respect of the other companies is an office of profit under the Government or not. We would therefore take up first the two companies, namely, the Durgapur Projects Ltd., and the Hindustan Steel Ltd., which are 100% Government companies and consider the respective contentions of the parties before us in respect of the office of auditor which the appellant holds in these two companies. If we hold that in respect of any of the these two companies the appellant holds an office a profit under the Government of India, then it would be unnecessary to consider the position of the appellant in any of the other companies. 7. It is not disputed that the Hindustan Steel Ltd., and the Durgapur Projects Ltd., are Government companies within the meaning of section 2(18) read with section 617 of the Indian Companies Act, 1956. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of the auditors of a company is to be fixed in accordance with the provisions of sub-s. (8) of s. 224. It is clear however that sub-s (7) of s. 224 does not apply to a Government company because the auditor of a Government company is not appointed under s. 224 of the Act, but is appointed under sub-s. (2) of section 619 of the Act. It is clear therefore that the appointment of an auditor in a Government company rests solely with the Central Government and so also his removal from office. Under sub-s. (3) of s. 619 the Comptroller and Auditor-General of India exercises control over the auditor of a Government company in respect of various matters including the manner in which the company's accounts shall be audited. The Auditor-General has also the right to give such auditor instructions in regard to any matter relating to the performance of his functions as such. The Auditor-General may conduct a supplementary or test audit of the company's accounts by such person or persons as he may authorise in this behalf. In other words, the Comptroller and Auditor-General of India exercises full control over the auditors of Government company. The powers and duties of auditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismiss the holder of office; (3) whether Government pays the remuneration; (4) what are the functions which the holder of the office performs and does he perform them for Government; and (5) does Government exercise any control over the performance of those functions. His argument further is that the tests must all co-exist and each must show subordination to Government so that the fulfilment of only some of the tests is not enough to bring the holder of the office under the Government. According to him all the tests must be fulfilled before it can be said that the holder of the office is under the Government. His contention is that the Election Tribunal and the High Court were in error in holding that the appellant was a holder of office under the Government, because they misconstrued the scope and effect of the expression "under the Government" in Art. 102(1)(a) of the Constitution. He has contended that tests (3), (4) and (5) adverted to above are not fulfilled in the present case. The appellant gets his remuneration from the company though fixed by Government; he performs functions for the company and he is controlled by the Comptroller and Auditor-General who is diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction between 'the holder of an office of profit under the Government' and 'the holder of an office of profit under a local or other authority subject to the control of Government' see Art. 58(2) and 66(4). In Maulana Abdual Shakur v. Rikhab Chand and another the appellant was the manager of a school run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955. He was appointed by the administrator of the Durgah and was paid Rs. 100 per moth. The question arose whether he was disqualified to be chosen as a member of Parliament in view of Art. 102(1)(a) of the Constitution. It was contended for the respondent in that case that under Sections 5 and 9 of the Durgah Khwaja Saheb Act, 1955 the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee; therefore the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India. This contention was repelled and this court pointed out the distinction between 'the holder of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to continue him in that office or revoke his appointments at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was no always a decisive factor. In the case before us the appointment of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies. His remuneration is also fixed by Government. We assume for the purpose of this appeal that the two companies are statutory bodies distinct from Government but we must remember at the same time that they are Government companies within the meaning of the Indian Companies Act, 1956 and 100% of the shares are held by the Government. We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor-General who himself is undoubtedly holder of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure of office and removability therefrom. Under Art. 148 of the Constitution of Comptroller and Auditor-General of India is appointed by the President and he can be removed from offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment of India; he is appointed by the Government of India, he is removable from office by the Government of India; he performs functions for two Government companies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative power may be controlled by rules made by the President. 16. In Ramappa v. Sangappa [1959] 1 SCR 1167 the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under Art. 191 of the Constitution, which is the counter-part of Art. 102, in the matter in membership of the State Legislature. It was observed therein : "The Government makes the appointment to the office though it may be that it has under the statute no option but no appoint the heir to the office if he has fulfilled the statutory requirements. The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation." 17. There again the decisive test was held to be the test of appointment. In view of these decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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