PRADYUT BORDOLOL Vs. SWAPAN ROY

JUDGEMENT

(1.) This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter, RPA for short) from an order of the Guwahati High Court made under Clause (b) of Section 98 of the Act declaring the election of the appellant as Member of Legislative Assembly to be void.

(2.) Pursuant to a notification dated 22-4-1998 issued by the Election Commission of India by-election in Margherita Legislative Assembly Constituency No. 124 was held in the months of May and June, 1998. Nine persons, including the appellant and the respondent filed nomination papers. One Ananda Ram Arandhara, the working president of the Margherita Block Congress Committee, filed a complaint against the candidature of the respondent submitting that the respondent was an employee of Coal India Ltd. and as such was disqualified from contesting election under Article 191 of the Constitution of India and Section 10 of the Representation of the People Act, 1951 in as much as he was holding an office of profit under the Government of India and also performing managerial functions in a company wherein the Government of India have not less than 25% shares. The complaint so filed was supported by the appellant at the scrutiny of the nomination papers held on 18-5-1998. The Returning Officer upheld the objection recording a finding that the respondent was holding an office of profit in a government company which office was not included in the exemptions from disqualifications under the Assam Legislative Members (Removal and Disqualifications) Act, 1950. The nomination paper of the respondent was rejected. The constituency went to polls on 3-6-1998. The appellant was declared elected on 6-6-1998. The respondent filed an election petition under Sections 80/81 of the Act laying challenge to the appellant's election. On trial the High Court has found that the appellant was neither holding an office of profit under the Government of India within the meaning of Article 191(1)(a) of the Constitution nor was a managing agent, manager or secretary of any company or corporation in the capital of which the Government of India has not less than 25% shares. The High Court has further held that the nomination paper of the respondent could not have been rejected on the ground of disqualification and as the same was improperly rejected, the election of the appellant was void. The questions arising for decision in this appeal are :

(3.) The basic facts are not in controversy. It is not disputed that the respondent was an employee of Tirap Collery, North Eastern Coal Fields under the Coal India Ltd. holding the post of Clerk Grade-I. The gross salary attached with the office was around Rs. 6,000/- per month. The Coal India Ltd. is a Government company within the meaning of Section 617 of the Indian Companies Act, 1956 having come into existence consequent upon the nationalisation of the coal mines under the Coal Mines (Nationalisation) Act, 1973. Under Section 3 of the said Act the right, title and interest of the owners in relation to the coal mines came to vest absolutely in the Central Government initially and then came to vest in the Government company under Section 5 of the said Act. Memorandum of Association and Articles of Association of Coal India Ltd. framed in the year 1973 have been brought on record. These documents, read in the light of the oral evidence adduced, go to show that the Coal India Ltd. is a Private Limited Company incorporated under the Companies Act, 1956 with 100% share capital owned by the Central Government. The Company has not more than 15 members. The business of the Company is entrusted to a Board of Directors consisting of not less than 3 and not more than 15 directors. The Chairman of the Board is to be appointed by the President of India and other members of the Board including the Vice-Chairman shall be appointed by the President in consultation with the Chairman. The President may also from time to time appoint Functional Directors who shall be whole-time employees of the Company. Chairman, Vice-Chairman or any whole-time or part-time Director is liable to be removed from office, subject to certain conditions, by the President. Certain important matters including winding up of the Company must be reserved for the decision of the President. The President is empowered to issue directions and instructions, as may be considered necessary, in regard to conduct of business and affairs of the Company. However, power to create posts in the scales of pay not equivalent to or higher than the post at the Board level or to appoint, remove or suspend managers including the General Managers, Secretaries, officers, clerks, agents and all other categories of employees are the powers vested in the Board of Directors. It is clear that so far as the conduct of the business of the Company and management of day-to-day affairs is concerned, it is the Board of Directors of Coal India Ltd. in whom vests the power. The President of India does not have power or control in the matter of creation of posts below the Board level and in the matters relating to appointment, removal and disciplinary control over the incumbents holding the posts below the Board level. The salaries, emoluments and perks of such employees are payable from the funds of the Company. The Central Government does not remunerate or augment the funds for such payments. These findings of fact have not been disputed by the learned senior counsel for the appellant.