D R GURUSHANTAPPA Vs. ABDUL KHUDDUS ANWAR

JUDGEMENT

(1.) This appeal under Section l13A of the Representation of the People Act No. 43 of 1951 (hereinafter referred to as "the Act") has been filed by one of the unsuccessful candidates for election to the Mysore Legislative Assembly from No. 152, Bhadravati Constituency, against the judgment of the High Court of Mysore dismissing his election petition for setting aside the election of the successful candidate, respondent No. 1. After the nomination papers had been filed, the scrutiny of the nomination papers took place on the 21st January, 1967 and five nomination papers were declared as valid. They were the nomination papers of the appellant, respondent No. 1 and respondents Nos. 2 to 4. The polling for the Constituency took place on 15th February, 1967, and after the counting of votes, the results were declared on 22nd February, 1967. Respondent No. 1 received 15,362 votes, while the appellant received 13,380 votes. The other three candidates, respondents Nos. 2 to 4, were also unsuccessful having received much smaller number of votes. On 5th April, 1957, the appellant filed the election petition challenging the election of respondent No. 1 on a number of grounds, out of which we need mention only one single ground, as the appeal this court is confined to that ground alone It was pleaded that respondent No. 1 was disqualified under Article 191 (1) (a) of the Constitution from being chosen as a member of the Legislative Assembly, because he was holding an office of profit under the Government of the State of Mysore on the date of scrutiny. This ground, as well as other grounds taken by the appellant for challenging the validity of the election of respondent No. 1 were all rejected by the High Court and the election petition was dismissed. Consequently, the appellant has come up in this appeal to this Court. Though, in this appeal, a number of grounds were raised, Mr. S. V. Gupte, counsel for the appellant, confined the case to this sole ground of disqualification of respondent No. 1 on the date of scrutiny.

(2.) The facts relevant for deciding this issue may, now be stated. On the date of scrutiny, respondent No. 1 was employed as Superintendent, Safety Engineering Department in the Factory run by the Mysore Iron and Steel Works Ltd., Bhadrawati. His salary was more than Rs. 500/per mensem. The past history of the service of respondent No. 1 was that he was appointed in the year 1936 in the Mysore Iron and Steel Works, Bhadrawati which was started by the Government of Mysore and was being managed by the Government as its own concern. He continued to be a servant of the Government of Mysore when, in the year 1962, a private limited Company was registered under the name of Mysore Iron . and Steel Limited, Bhadrawati (hereinafter referred to us "the Company" under the Indian Companies Act, 1956, and this Company took over the Mysore Iron and Steel Works from the Government. Respondent No. 1 had first jointed service as a daily worker in 1986, but was promoted as Chargeman, Asstt. Foreman, Foreman and thereafter as Assistant Superintendent which was the post held by him in the year 1962 at the time when the concern was taken over by the Company. Subsequently, he was promoted as Superintendent in the year 1964 and was working on that post at the time of election in 1967. It was also the common case of the parties that the shares of the Company were held cent per cent by the Mysore Government, though some of the shares were shown in the names of some of the Officers in the service of the Mysore Government. Under the Articles of Association of the, Company, the first Directors of the Company were the Minister-in-charge of the Industries Portfolio in the Mysore Government, the Secretaries to the Mysore Government in the Finance Department, and in the Commerce and Industries Department, the Managing Director of the Mysore Iron and Steel Ltd., and the Chief Conservator of Forests of the Mysore Government. The Governor of Mysore was entitled to appoint all or a majority of the members of the Board of Directors so long as the Government of Mysore held not less than 51 per cent of the total paid up capital of the Company of so long as the Governor continued to be interested in any fiduciary capacity. The Board of Directors could also co-opt one or more individuals as Directors. Thus, the State Government had considerable control in appointment of Directors of the Company as well as in the appointment of the Managing Director who was to be appointed by the Governor from amongst the Directors nominated by him. The Governor was also entitled to appoint from amongst the nominated Directors a Chairman and Vice-Chairman of the Board of Directors. Even the Secretary of the Company had to be appointed by the Board of Directors after obtaining approval of the Governor. In respect of other employees of the Company, recruitment and service conditions had to be in accordance with the rules which may be prescribed by the Governor from time to time. When the concern was taken over from the Government by the Company, the services of respondent No. 1 were not terminated and he was continued in the same post by the Company which he was holding when the concern was being run by the Government. There was no fresh contract entered into between him and the Company. On these facts,, two alternative contentions were raised by Mr. Gupte to urge that respondent No.1 was disqualified under Article 191 (1) (a) of the Constitution. The first argument was that respondent No. 1, when initially appointed to a post in the Mysore Iron and Steel Works in 1936, was a government servant and, even after that concern was taken over by the Company, he continued to be in the service of the Mysore Government. In the alternative, the second contention was that, even if respondent No. 1 ceased to be a government servant, he still continued to hold an office of profit under the Government of Mysore though, technically, he was in the employment of the Company.

(3.) So far as the first point is concerned, reliance is placed primarily of the circumstance that when the concern was taken over by the Company from the Government, there were no specific agreements terminating the government service of respondent No. 1 or brining into assistance a relationship of master and servant between the Company and respondent No. 1. That circumstance, by itself, cannot lead to the conclusion that respondent No. 1 continued to be in government service. When the undertaking was taken over by the Company as a going concern, the employees working in the undertaking were also taken over and since, in law the Company has to be treated as an entity district and separate from the Government, the employees, as a result of the transfer of the undertaking because employees of the Company and ceased to be employees of the Government. This position is very clear at least in the case of those employees who were covered by the definition of workmen under the Industrial Disputes Act in whose cases, on the transfer of the undertaking the provisions of Section 25FF of that Act would apply. Respondent No. 1 was a workman at the time of the transfer of the undertaking in the year 1962, because he was holding the post of an Assistant Superintendent and was drawing a salary below Rs. 500/- per mensem. As a workman, he would, under S. 25FF of the industrial Disputes Act, become an employee of the new employer, viz., the Company, which took over the undertaking from the Mysore Government which was the previous employer. In view of this provision of law, there was, in fact, no need for any specific contract being entered into between the Mysore Government and respondent No. 1 terminating his government service, nor was there any need for a fresh contract being entered into between the company and respondent No. 1 to make him an employee of the Company.