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1959 DIGILAW 11 (PAT)

Budhan Singh v. Bindheshwari Prasad Singh

1959-01-12

K.SAHAI

body1959
Judgment K.Sahai, J. 1. For the election of the Mukhia of the Atmi Gram Panchayat, the 15th January, 1958, was the last date for filing nomination paper. Petitioner Budhan Singh and opposite party No. 1, Bindeshwari Prasad Singh (who will henceforth be referred to as the opposite party), filed nomination papers. The nomination paper of the opposite party was accepted but that of the petitioner was conditionally accepted on the same date but finally rejected on the 24th January. Thereafter, it was again accepted on the 25th January. As a result of the election, the petitioner was declared to be elected. The opposite party then filed an election petition in accordance with Rule 79(1) of the Bihar Panchayat Election Rules, 1956, before the Election Tribunal appointed by the District Magistrate under Rule 78 of the same Rules. The Tribunal has declared the petitioners election to be void on the ground that he was disqualified under Section 79(b) of the Bihar Panchayat Raj Act, 1947 , and has declared the opposite party, who was the only duly nominated candidate, to have been elected as Mukhia of the Atmi Gram Panchayat. The petitioner has, therefore, filed this application under Articles 226 and 227 of the Constitution for quashing the Tribunals order. 2. The Tribunal has held that the petitioner was disqualified for nomination because he was, on the 15th January, 1958, in the service of a local authority as he was one of the members of the Panchayat appointed by the District Magistrate under Sec.3 of the Village Chaukidari Act, 1870. It has also held that the petitioner was disqualified for nomination because, on the 15th January, 1958, he was in the service of the State Government as a lambardar appointed under Rule 20 of the Sone, Champaran, Saran and Kamla Canals Irrigation Rules (hereinafter referred to as the Irrigation Rules). Appearing on his behalf, Mr. Chatterjee has argued that the petitioner cannot be held to have been either in the service of any local authority or in the service of the State, and, therefore, the Tribunals order declaring his election to be void is liable to be quashed. I propose first to consider whether the petitioner can be held to have been in the service of the State Government. 3. I propose first to consider whether the petitioner can be held to have been in the service of the State Government. 3. It has been held by the Tribunal, and it is not challenged, that the petitioner was working as a lambardar appointed under Rule 20 of the Irrigation Rules, on the 15th January, 1958. It appears that the petitioners resignation from the office was received by the Canal Subdivisional Officer of Nasriganj on the 24th January, 1958. Under order No. 500-R, dated the 29th April, 1958, the Executive Engineer accepted the resignation. Hence the Tribunal has held that it was- only with effect from the 29th April that the petitioner ceased to be a lambardar. This also has not been challenged, and I may mention that the election actually took place on the 18th and I9th of March, i.e., before the date on which the resignation was accepted. Thus, he was working as a lambardar not only On the date of his nomination but also on the dates of his election. 4. The question which now arises is whether a lambardar appointed under Rule 20 of the Irrigation Rules can be held to be in the service of the State Government. Mr. Chatterjee has submitted that the Irrigation Rules aforesaid have been framed by the Government under Section 99 of the Bengal Irrigation Act, 1876, but no provision has been made in the Act itself for the appointment of a lambardar. He has also argued that the petitioner may be held to have been only a lessee or contractor of the canal authorities but not a servant of the Government. He has relied upon some decisions in support of his submissions. The first case which he has referred to is the decision of a single Judge in Swami Nath V/s. S.D.O. Machhlishahr, AIR 1958 All 660 . The question which arose for consideration in that case was whether a man appointed to perform the duties of a village headman under Sec. 45 of the Code of Criminal Procedure could be held to be a Government servant under Sec. 5-A of the U.P. Panchayat Raj Act. His Lordship has considered various decisions, and has come to the conclusion that such a headman could not be said to be in the service of the Government. His Lordship has considered various decisions, and has come to the conclusion that such a headman could not be said to be in the service of the Government. I do not think that that case has any application to the facts of the present case because I am not concerned with the question which arose in that case. Mr. Chatterjee has submitted that his Lordship was of the opinion that the holder of a post which was not statutory could not be held to be a Government servant, and has drawn my attention to an observation which is as follows: "In other words the office of Mukhia though recognized by law can only be created by an order passed either by the District Magistrate or a Subdivisional Magistrate and it is not a statutory post in the sense that a Mukhia has got to be appointed for every village or that a village cannot do without a Mukhia." It seems manifest that his Lordship does not purport to have laid down that, unless a person holds a statutory post, he cannot be a Government servant. That would be too sweeping. Clerks or ministerial officers in different departments and offices of the Government are not appointed specifically under any statute. It can hardly be asserted that such clerks are not in Government service. 5. Mr. Chatterjee has also referred to Lachmi V/s. Military Secretary to the Governor of Bihar, 1955 BLJR 477 ; ( AIR 1956 Pat 398 ). That case is also distinguishable on facts. The question which required consideration in that case was whether malis employed in Raj Bhawan were members of the civil service of the State or held civil posts under the State within the meaning of Article 311 of the Constitution. Their Lordships held that they did not. I may, however, refer to an observation of Das C. J. relating to the test which should be applied in order to determine the question of service: "The real test, therefore, is the immediate or ultimate control which is exercised by the State with regard to the post in question." 6. Another case which Mr. Chatterjee has drawn my attention to is Subodh Ranjan Ghosh V/s. Fertilisers and Chemicals Ltd., 1956 BLJR 513 : ( AIR 1957 Pat 10 ). Another case which Mr. Chatterjee has drawn my attention to is Subodh Ranjan Ghosh V/s. Fertilisers and Chemicals Ltd., 1956 BLJR 513 : ( AIR 1957 Pat 10 ). The question for decision in that case was whether employees of the Company could be held to be employees of the Government, and it was held that the Company, though it may have been completely owned by the Union Government, had a separate legal entity, and was not a department of the State Government or its delegate or agent. That case also has, therefore, no application to the present case. 7. In my judgment, there are several tests which have to be applied in order to find out whether there is a relationship of master and servant between the State or Union Government and an individual. Firstly, the test is as observed by Das C. J. in 1955 BLJR 477 : ( AIR 1956 Pat 398 ) (supra), whether the Government exercises immediate or ultimate control over the person concerned or, in other words, whether the Government or any of its officers can dismiss the man from his employment, take disciplinary action against him or regulate the conditions of his service. Secondly, whether the Government or its officers can determine the manner in which he should do the work. Thirdly, whether he has any public duty imposed by law, rules or orders of the Government or its officers to perform or execute. Fourthly, whether he is entitled to any remuneration for the work done by him. I may add, however, that payment of remuneration is not essential because there may be a relationship of master and servant even where no remuneration is to be paid. I may quote in this connection an observation of Lord Porter in his speech in Mersey Docks and Harbour Board V/s. Coggins and Griffith (Liverpool) Ltd., 1947 AC 1 which has been quoted in the decision of the Supreme Court in Shivanandan Sharma V/s. Punjab National Bank Ltd., (S) AIR 1955 SC 404 . "Many factors have a bearing oh the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. "Many factors have a bearing oh the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject-matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to as-certain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged." 8. Applying the tests mentioned above to the present case, it is found that a lambardar is undoubtedly a Government servant. Under Rule 20(1) of the Irrigation Rules, the Subdivisional Canal Officer, who exercises jurisdiction under the Bengal Irrigation Act as well as the Irrigation Rules, is empowered to appoint a lambardar to represent all or a section of the applicants for any lease. If the applicants do not agree with the Subdivisional Canal Officer, the appointment has to be made by the Divisional Canal Officer. Sub-rule (3) of Rule 20 lays down the qualifications for appointment as a lambardar. Rule 21 gives power to the Divisional Canal Officer to remove one lambardar and to appoint another. Rule 22 lays down the duties which a lambardar has to perform. Under Sub-rule (1) of Rule 23, a canal officer is to pay the remuneration of the lambardar at a certain percentage of the assessment for all leases. Under Sub-rule (3), the Divisional Canal Officer or the Canal Deputy Collector is empowered to withhold payment of any proportion of the remuneration payable to the lambardar. It is thus found that the canal officers, who exercise power as officers of the State Government, can control the work of the lambardar, and they can dictate to him how he is to do his work. Through them, the ultimate control is vested in the State Government. The canal officers can take disciplinary action by withholding payment of any part of his remuneration or by removing him from office. Remuneration is also payable to him. Mr. Chatterjee has not been able to show any provision in support of his submission that the lambardar is merely a contractor or lessee under the canal officers. The canal officers can take disciplinary action by withholding payment of any part of his remuneration or by removing him from office. Remuneration is also payable to him. Mr. Chatterjee has not been able to show any provision in support of his submission that the lambardar is merely a contractor or lessee under the canal officers. In these circumstances, it must be held that there is a relationship of master and servant between the State Government and a lambardar. 9. For the reasons given above, I hold that the petitioner was in the service of the State Government at all material times, and was, therefore, disqualified from being nominated or elected as a Mukhia. It is unnecessary for me, therefore, to consider whether any disqualification attached to him on account of his appointment as a Panch under Sec.3 of the Village Chaukidari Act, 1870. 10. In the result, the application fails, and it is dismissed with costs: hearing fee Rs. 200/-. The fee will be divided half and half between the State and opposite party No. 1.