Rajendra Mahto v. Aklu Ram Mahto — 1997 DIGILAW 749 (PAT)

Judgment P.K.Deb, J. 1. Both these Election petitions have been tried together as both the petitions relate to the Election of Respondent No. 1, Shri Aklu Ram Mahto from 279 Bokaro Assembly Constituency in the year 1995 and both these petitions have been filed under Secs. 80, 80-A and 81 of the Representation of the People Act, 1951 and the grievance is of illegal rejection of the Nomination papers of the petitioners. 2. In the Election petition No. 5 of 1995 (R), the Election petitioner is Rajendra Mahto. He filed his nomination paper to contest the General Election 1995 from the abovementioned Assembly Constituency in the State of Bihar as a nominee of Bhartiya Janta Party, but his Nomination paper was illegally and arbitrarily rejected by the Returning Officer, namely, Sub-divisional Officer, Chas, Bokaro and as such the election of the respondent No. 1 has been called for question on the sole ground of improper and illegal rejection of his Nomination paper. 3. The programme regarding the said Election as notified time to time are as follows: (i) Last date for filing Nomination paper was 23.1.1995; (ii) The date of scrutiny of the Nomination paper was 24.1.1995; (iii) The date of withdrawal of Candidature was 27.1.1995; (iv) The date of Poll was 7.3.1995 and afterwards changed to 11.3.1995; (v) The date of counting was 21.3.1995 and afterwards changed to 29.3.1995; (vi) The date of declaration 31.3.1995. 4. According to the petitioner, Rajendra Mahto, he is an employee as Khalashi in Bokaro Steel Plant (under the Steel Authority of India Ltd.). On 18.1.1995 he sought permission from the Company for contesting the Election. On 21.1.1995 Deputy Chief Personnel Manager, Bokaro Steel Plant conveyed permission to the petitioner to contest the Assembly Election. The petitioner alongwith the respondent, Aklu Ram Mahto and many others had filed Nomination papers after fulfilling all the conditions for the Election before the Returning Officer at Chas. The petitioner had filed his Nomination paper with documents showing deposit of required number of Security alongwith letter of permission to contest the Election granted by his employer, which has been attached to the Election Petition as Annexure-1. The petitioner had filed his Nomination paper with documents showing deposit of required number of Security alongwith letter of permission to contest the Election granted by his employer, which has been attached to the Election Petition as Annexure-1. The Returning Officer after scrutiny of the Nomination papers accepted only the Nomination papers of the respondent No. 1, Aklu Ram Mahto, Shri Ashok Choudhary, Sri Birendra Singh, Shri Pahlu Mahto, Sri Suryakant Rai, Sri Feroz Ansari, Sri Chandra Shekhar Ravidas, Sri Devan Manjhi, Sri Matabar Safi, Sri Binod Kumar, Sri Samresh Singh, Sri Suman Singh and Sri Surajdeo Saw and the nomination of the petitioner was rejected alongwith nomination papers of many others as named in para-7 of the Election petition including Shri Ashok Kumar Srivastava, petitioner in Election petition No. 6 of 1995 (R). The said rejection was recorded under Sec. 10 and some other provisions of the Representation of the People Act. 5. The main ground for rejection was that the petitioner is a Managing agent of the Company (Bokaro Steel Plant) in which the authorised capital of the appropriate Government is not less then 25 per cent share. The Rejection order has been annexed with the Election petition as Annexure-2. According to the petitioner, he being a Khalashi in the Bokaro Steel Plant of SAIL does not hold any office of profit under the Government of India or the State Government and as such he does not come within the purview of disqualification either under Article 191 of the Constitution of India or under Sec. 10 of the Representation of the People Act, 1951. It has further been contended that the petitioner is not an acting agent or a Manager or Secretary of Bokaro Steel Plant and/or SAIL, which is a Government Company but he is only a petty employee of the Company in the designation of Khalashi. The petitioner immediately on 24.1.1995 informed this matter of illegal rejection to the Chief Election Commissioner, New Delhi and requested for his intervention but no steps were taken and the Election was held amongst the candidates whose nomination papers were accepted and ultimately the respondent No. 1 was elected on receipt of 97,798 votes and the second position was with Shri Samresh Singh, receiving 69,483 Votes. Except the respondent, Aklu Ram Mahto, Sri Samresh Singh and another Candidate Sri Ashok Choudhary, the deposit of all other candidates were forfeited. Except the respondent, Aklu Ram Mahto, Sri Samresh Singh and another Candidate Sri Ashok Choudhary, the deposit of all other candidates were forfeited. According to the petitioner, the Nomination paper of the present petitioner including Ashok Kumar Srivastava, petitioner in Election petition No. 6 of 1995 (R) and those of Sri Sadhu Sharan Gope, Sri Rajeev Ranjan, Sri Ismail Ansari, Sri J. N Singh, Sri Santosh Kumar Mandal, Smt. Ema Savita Sarwan, Sri R. N. Ojha and Sri Sirajuddin Ansari were illegally rejected treating them to be the Managing Agents of the Company i.e. the Bokaro Steel Plant under Sec. 10 of the Representation of the People Act. 6. Those persons including the petitioners of both the Election petitions had never held any post or hold office of profit under the Government of India or the State Government. They are not the Managing Agents not even Manager or Secretary of the Government Company and as such there was no barrier for their Candidature to contest the Election. The petitioner was the official candidate of B. J. P. and the party i.e. B. J. P. has got a large number of followers and supporters in the Constituency. If his nomination paper would not have been rejected then there was little scope of the respondent. Sri Aklu Ram Mahto to win the election. It has also been stated that the respondent, Sri Aklu Ram Mahto was also an Assistant in the Bokaro Steel Plant and he was allowed to contest while in service, the Election in 1980 and then he became a Member of Bihar vidhar Sabha from Bokaro Assembly Constituency and after that he had given up the job but when he fought the Election he was an Assistant in the Company where the petitioners of both the Election petitioners are serving. It has further been stated that the Bokaro Steel Plant Company is a Government Company but a Public Sector Undertaking so that the permission granted by the Employer to the petitioners of these two Election petitions to contest the Election were valid and proper. According to the Election petitioners they were not appointed by the Central or the State Government nor was removable by the Appropriate Government from the posts they are holding and even their compensatory allowances were paid from the funds of the Corporation and not from the funds or coffers of the Government. According to the Election petitioners they were not appointed by the Central or the State Government nor was removable by the Appropriate Government from the posts they are holding and even their compensatory allowances were paid from the funds of the Corporation and not from the funds or coffers of the Government. It has further been brought allegation against the Returning Officer, Shri C.K. Anil to the effect that the same Returning Officer had accepted the nomination of one Sri Krishna Prasad Rajwar who was an employee of SAIL (Bokaro Steel Plant) and was a Candidate from Chandankiyari Assembly Constitutency and as such the rejection of nomination paper of the petitioner and other candidates is violative of Article 14 of the Constitution of India. 7. After rejection of the Nomination paper the petitioner filed CWJC No. 208 of 1995 (R) before this Court but the same was rejected in view of Article 329(b) of the Constitution of India as contesting in the Election cannot be considered as a fundamental right or a civil right and as such under Article 329(b) of the Constitution of India, the writ petition was not maintainable and when alternative remedy is available under the Representation of the People Act. Hence, this Election petition has been filed with prayer for declaration of the election of the Respondent as void on the ground of improper and illegal rejection of the petitioners nomination paper. 8. Exactly the same grounds have been taken in the other Election petition by the petitioner, Ashok Kumar Srivastava. Mr. Srivastava is also an employee of the Bokaro Steel Plant under SAIL in the post of Meter Reader and almost in the lowest category of service under the Corporation/Company, but his nomination paper was also rejected on the ground being Managing Agent. The same steps have been taken by Mr. Srivastava also and prayer has been made for setting aside the Election of Sri Aklu Ram Mahto on the ground of illegal rejection of Nomination Paper. 9. On appearance, the respondent filed Written Statements in both the Election petitions denying all the allegations brought in the Election petitions. Usual pleas as are taken in such sort of petitions had also been taken in the written statements contending, inter alia, that the Election Petition is not maintainable, that the same is fit to be dismissed forthwith for non-compliance of Secs. Usual pleas as are taken in such sort of petitions had also been taken in the written statements contending, inter alia, that the Election Petition is not maintainable, that the same is fit to be dismissed forthwith for non-compliance of Secs. 81, 82, 83 and 117 of the Representation of People Act, that the Election petition is barred by Limitation and that the copies supplied to the respondent of the Election petition is not in conformity as required under Sec. 81(1) of the Act. It has further been contended that the Election petition is fit to be dismissed because of misjoinder and non-joinder of the parties, since the same is contrary to the Mandatory provision of Sec. 82 of the Act. According to the respondent, when allegations have been brought of bias against the Returning Officer then he was a necessary party to be joined in the Election petition and his non-joinder is fatal to the Election petitions. It has further been stated that the employees of the Bokaro Steel Plant are not entitled to join politics and fight elections and as such permission granted by the Deputy Chief Personnel Manager, Bokaro Steel Plant is without jurisdiction and contrary to the provisions of Sec. 10 of the Act. According to the written statement, the appointment of the Director, Chairman, Managing Director of the Company under the Steel Authority of India are done and controlled by the Government of India and as such 100 per cent share capital of the Company is owned and controlled by the Government of India and no private money has been invested in the Bokaro Steel Plant, as a result of which Bokaro Steel Plant shall be deemed to be a cent percent Government Company and any employee/staff shall be deemed to be holder of the office of profit under the Central Government and as such even if the petitioners are not designated as Managing Agent in the Company, their service is equivalent to the Managing Agent of the Company and hence rejection of nomination papers was legal and proper and as such prayer has been made for dismissal of the Election petitions. 10. On the basis of the pleadings of the parties, following issues were framed vide Order dated 25.8.1995: (i) Is the Election petition maintainable in its present form? (ii) Whether the Election petition is bad for non-compliance of Secs. 10. On the basis of the pleadings of the parties, following issues were framed vide Order dated 25.8.1995: (i) Is the Election petition maintainable in its present form? (ii) Whether the Election petition is bad for non-compliance of Secs. 80, 80-A, 82, 83 and 117 of the Representation of People Act, 1951? (iii) Whether the Returning Officer is a necessary party in this Election petition or not? (iv) Whether the nomination paper of the petitioner and some other candidates have been rejected illegally and improperly causing material effect in the election result? (v) Whether the election petition is liable to be allowed on this score alone? (vi) What relief, if any, the petitioner is entitled to? 11. It was also mentioned in that Order that the above issues framed may be recast, if necessary, in course of trial. After the issues were framed then the respondents side started taking time on this plea or that plea. Ultimately, it was prayed by filing petition that the issues that means Issue Nos. 1 and 2 should be heard as preliminary issues. This Court allowed the said prayer after the objection filed on behalf of the petitioners vide Order dated 10.11.1995 and then Order was passed conjointly in both the Election petitions on 5.1.1996 holding that the petitions are maintainable and that provisions of Secs. 80, 80-A, 82, 83 and 117 have been complied with and hence the issues were decided in positive and in favour of the Election petitioners. Against the Order of maintainability, the respondent No. 1 filed S. L. P. No. 5265 and 5266 of 1996 before the Hon ble Supreme Court but those S. L. Ps were dismissed by the Apex Court vide Order dated 20.3.1996 meaning thereby the Orders passed by this Court regarding the maintainability of the Election petitions have been upheld. So those two issues are decided in favour of the Election petitions. But, on the ground of pendency of the S. L. Ps. the respondent was taking time before this Court. On 9.4.1996 also, prayer was made for not proceeding with the Election petitions because of the pendency of the S. L. Ps before the Apex Court but that prayer was definitely a false one as before that date S. L. Ps had already been dismissed. the respondent was taking time before this Court. On 9.4.1996 also, prayer was made for not proceeding with the Election petitions because of the pendency of the S. L. Ps before the Apex Court but that prayer was definitely a false one as before that date S. L. Ps had already been dismissed. Then on 21.5.1996 the respondent again prayed that they are going to file Review petitions against the Order passed in the S. L. Ps. as mentioned above, before the Apex Court in view of the recent judgment passed by the Supreme Court as reported in Vol-II, Civil Law Times, Page-110 : AIR 1996 S.C. Page-1691 (Dr. Smt. Sipra V/s. Shantilal Khorwal) and 1996 S.C. 3350, (Harcharan Singh Josh V/s. Hari Kishan), but this Court did not allow so as it could be found that by false representation the respondent was taking time only as delaying tactics. Then evidence started but at the evidence stage also the respondent took all endeavour to stall the progress in the Election petitions on this plea or that plea. As far as practicable, this Court accommodated the respondents prayer and ultimately the respondent could be able to adduce their evidence but in that score also they took several adjournments and for the evidence of Returning Officer the respondent took various times and it appeared that the Returning Officer was purposely and intentionally avoiding to appear before the Court and ultimately the prayer was rejected and argument was heard. After the argument was partly heard then also the respondent started taking time and even at one time the respondent brought aspertion against this Court and stated that they were moving the Apex Court for transfer of these Election petitions and bringing stay order but that also could not be brought. After arguing the case the learned Counsel for the respondent, Mr. Dhirendra Kumar again took time to Cite some law points but then again through his son he wanted to take adjournment but the prayer was rejected, but liberty was given to file written Argument which was ultimately filed. It must be stated that the respondents counsel made all endeavours to delay the progress of the Election petition and the order-sheets of these cases will reveal the same, but somehow it could come to an end and the judgment has been reserved. 12. It must be stated that the respondents counsel made all endeavours to delay the progress of the Election petition and the order-sheets of these cases will reveal the same, but somehow it could come to an end and the judgment has been reserved. 12. For and on behalf of the Election petitioners, six witnesses have been examined. In Election petition No. 5/95 (R), there are four witnesses, nannely, PW-1, Rajendra Mahto, Election petitioner, PW-2, Subhash Choudhary Mahto, the proposer of the petitioner, Rajendra Mahto and an employee of the Bokaro Steel Plant, PW-3, Sri N. K. Singh, General Manager (Personnel & Admn.) at Bokaro Steel Company and PW-4, Sri Baccha Singh is the Deputy Chief Personnel Manager of Bokaro Steel Plant and under his signature, Ext-3, the permission letter regarding fighting of the election by Rajendra Mahto and Ashok Kr. Srivastava were issued. In Election petition No. 6 of 1995 (R), the Election petitioner, Ashok Kumar Srivastava has examined himself as PW-1 while his proposer Laxaman Pandey has been examined as PW-2. In both the cases conjointly five witnesses have been examined for and on behalf of the respondent. DW-1 Premchand Singh, DW-2 Rafique Ansari are the employees of the Bokaro Steel Plant and they attempted to support the case of the respondent to the.effect that the Election petitioners namely, Ashok Kumar Srivastava and Rajendra Mahto had got supervisory power over the level of employees in their lowest grade. DW-3, N. K. Garni is the Chief Personnel Manager (non work) of the Bokaro Steel Plant. Although attempts were made through him regarding the permission for joining in politics were bafred under the Regulation and Service Conduct Rules of the employees of the Bokaro Steel Plant but this witness has not supported the defence version. DW-4 is Jairam Singh, an employee of Bokaro Steel Plant and he gave the history of the previous Elections wherein Samresh Singh and Aklu Ram Mahto had fought amongst themselves and sometime Samresh Singh was elected and sometime Aklu Ram Mahto. D. W. 5, Aklu Ram Mahto is the respondent in both the cases and a Sitting M.L.A. and it has been stated at the time of argument in the Bar that he is now holding post of a Minister under Rashtriya Janta Dal Government headed by Chief Minister, Rabri Devi. D. W. 5, Aklu Ram Mahto is the respondent in both the cases and a Sitting M.L.A. and it has been stated at the time of argument in the Bar that he is now holding post of a Minister under Rashtriya Janta Dal Government headed by Chief Minister, Rabri Devi. He has not stated anything except that the Returning Officer had rightly rejected the Nomination papers of both the Election petitions. Some documents have been exhibited from both sides, vital amongst them are Ext. 3, the letters of No Objection Certificate issued by the SAIL/Bokaro Steel Plant in favour of Rajendra Kumar Mahto and Ashok Kumar Srivastava. Ext. 5 in both the cases are the orders of the Returning Officer dated 24.1.1995 regarding rejection of nomination papers of the Election petitioners. Besides these, other documents proved are the formal documents as notice of Election, programme, result-sheet etc. etc. 13. The only point involved in these two Election Petitions is with regard to the illegal rejection of Nomination paper of both the Election petitions. Let us take up the matter issue-wise. Findings 14. Issue Nos. 1 and 2-As stated above, these two issues have already been decided by this Court vide Order dated 5.1.1996 in favour of the Election petitioners. 15. Issue No. 3-According to the respondent, as there is allegation of bias against the Returning Officer as such he is a necessary party in this Election petition. As to the parties in an Election Petition, Sec. 82 of the Representation of the People Act, 1951 may be referred to. As per Sub-sec. (a) of Sec. 82, where the Election petitioner in addition to claiming declaration that the election of all or any of the Returned candidate is void claims a further declaration that he himself or any other Candidate has been duly elected then all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the Returned candidates are the necessary parties. In the present Election petitions, as already mentioned the Election petitioners have claimed a declaration that the election of respondent, Shri Aklu Ram Mahto as void and no other declaration in their favour have been sought for and the grounds for such declaration was illegal rejection of their nomination papers. In that view of the matter, it cannot be said that the Election petitions suffer from non-joinder of necessary party. In that view of the matter, it cannot be said that the Election petitions suffer from non-joinder of necessary party. Returning Officer had rejected the nomination papers of the petitioners and while dealing with such rejection matter, it has been contended that the orders of rejection were bias, illegal and inoperative in the eye of law. In such sort of contents being made in the Election petition, the Returning Officer cannot be said to be a necessary party in the case. Returning Officer is a Government Official having been given the authority under the Representation of People Act to conduct Election and he was within his authority to reject or accept any Nomination paper and in course of his duty he had done so. If he has done any wrong in his Order then his Order may be challenged and for that reason the person who had passed the order, as duty bound under the law, cannot be held to be a necessary party in such sort of Election petitions and hence this issue is decided in negative and in favour of the Election petitioners. 16. Issue No. 4 and 5-Both these issues are inter related and as such taken up together for the purpose of decision. These two issues are the vital issues on which the rate of Election petitions are solely dependent. Before entering into the merits, it must be held that the later part of Issue No. 4 which reads as follows: And improperly causing material effect in the election result is redundant in view of Sec. 100 of the Representation of People Act. Illegal rejection of Nomination paper comes under Sec. 100 (c), which ground of challenging of the Election has got no nexus with the result of the Election. The grounds regarding result of the Election related to Sub-sec. (d) alone where improper acceptance of nomination is also one of the ground but for improper rejection of nomination paper the material fact or having effect in the result of the Election is of no consequence. If a candidate has been debarred from fighting the Election for illegal rejection of his nomination paper then it would be sufficient for allowance of an Election petition, if he can prove that order of rejection was illegal and improper and nothing furthermore. 17. If a candidate has been debarred from fighting the Election for illegal rejection of his nomination paper then it would be sufficient for allowance of an Election petition, if he can prove that order of rejection was illegal and improper and nothing furthermore. 17. The result of the Election would definitely have materially effected, if the Election petitioners would have been allowed to contest the Election and for that reason Legislature with its vast wisdom has not included the theory of material effecting in the result in case of improper rejection of nomination papers. 18. As stated earlier, nomination papers of both the Election petitioners have been rejected solely on the ground that the Election petitioners were the Managing agents of Bokaro Steel Plant Ltd., which is a Government Company as contemplated under Sec. 10 of the Representation of People Act. As per the rejection order itself, Rajendra Mahto being a Khalashi was working at the level L-III in the gradation of workers i.e. non-executive posts at the relevant time while Ashok Kumar Srivastava, a meter Reader was working at the level L-VII. At the time of scrutiny of the Nomination papers, it has been observed in Annexure-2 that a "Public Grievance Objection was filed regarding the Nomination papers of these two candidates and as such he had taken up the matter and heard the parties. The Returning Officer mentioned in the impugned order that the SAIL employees, which is the main Concern of the Bokaro Steel Plant are permitted to contest the Election under the Companies Rule and that on previous occasions many employees of the Bokaro Steel Plant Ltd have filed Nomination papers and had never been rejected on this ground. It was the contention of the Election petitioners before the Returning Officer The permission letters were annexed by the Candidates with their Nomination papers and that was perused by the Returning Officer. It was the contention of the Election petitioners before the Returning Officer The permission letters were annexed by the Candidates with their Nomination papers and that was perused by the Returning Officer. Then he quoted Sec. 10 of the Representation of People Act and held that Bokaro Steel Ltd. is a Government Company in which the Central Government has more than 25 per cent share and by interpretation of the heading of Sec. 10 i.e. Officer under Government Company, the Returning Officer has interpreted the same to the effect that any employee under the Company who is employed in whatsoever position in Managerial or non-managerial posts are disqualified explicitly under Sec. 10 of the Representation of the People Act. Regarding Managing Agent as contemplated under that Section, the Returning Officer interpreted that Managing Agent should mean any agent who manages on behalf of the Company and as such agent would be meaning an employee who acts on behalf of the Company to promote the interest of the Company and, therefore, a person who is at the lowest level of the working class is also an agent who manages on behalf of the Company and he himself has interpreted further that on the principle as mentioned above any employee of the Company shall be a managing agent of the Company even though designated so. He has further held that L-VII and L-III grade employees have got supervisory powers and managerial powers over the other grades lower to L-VII or L-III and hence the Nomination papers were rejected on the ground that even though the petitioners were only workers under the Company but still by interpreting their duties and work, they should also be termed as Managing Agents. 19. It has come in evidence by the high ranking official of the B. S. L. that there is no post in the name and style of Managing Agent at Bokaro Steel Ltd. and that the Election petitioners are the lower level workers under non executive class. There are scopes for non executive cadres to get promoted in the Executive Cadre by eflux of time and by dint of merit in the service if their qualifications allow so. But the fact remains that both the petitioners are only serving in the working level class of the Bokaro Steel Ltd. and they have neither any supervisory power nor any managerial power in the Company. But the fact remains that both the petitioners are only serving in the working level class of the Bokaro Steel Ltd. and they have neither any supervisory power nor any managerial power in the Company. The definition of Managing Agent as contemplated under Sec. 10 of the Representation of the People Act can only be found under Sec. 2(3) of the Companies Act, An individual is termed as a Managing Agent when he is any partner or relative of such individual any firm in which such individual, partner or relative is a partner; any private company of which such individual or any such partner, relative or firm is the Managing Agent or secretaries and treasurers or a director or the Manager; and anybody corporate at any general meeting of which not less than one third of the total voting power in regard to any matter may be exercised or controlled by any one or more of the following, namely, such individual, partner or partners, relative or relatives, firm or firms; and private company or companies. Thus, the managing agent means that he must have control over the Company having different managerial power including that of secretarial and financial matters. A simple employee in a Company cannot be having any scope to be a Managing Agent as per the definition contemplated under the Companies Act. Supervisory power of any of the employee in a Company in the work class level even if exercised so, cannot be construed as a Managing Agent as per the Companies Act. 20. It is the contention of the respondent that Bokaro Steel Ltd. is an allied Company of the SAIL which is a 100 per cent Government Company and as such the several employee under the Company is a Government employee and it is not necessary who should be appointing authority or who can remove them but they being the employees and their remunerations being paid from the Government revenues, they are debarred to fight election having holding office of profit of business. 21. This sort of contention from the side of the respondent is totally a new one contemplating the provisions of Article 102(1)(a) and 191(1)(a) of the Constitution of India. This aspect of the matter would be considered later on. First of all, let me consider the ground for which the rejection has been made in black and white, vide Ext. 21. This sort of contention from the side of the respondent is totally a new one contemplating the provisions of Article 102(1)(a) and 191(1)(a) of the Constitution of India. This aspect of the matter would be considered later on. First of all, let me consider the ground for which the rejection has been made in black and white, vide Ext. 5, of the Nomination papers of the petitioner. The nomination papers have been rejected solely on the ground that the petitioners were holding the posts of Managing Agents in the Bokaro Steel Ltd. and by interpreting their duties and posts they were holding, it was held having been in the supervisory power they are the Managing Agents of the Bokaro Steel Ltd. and as such they cannot fight out the election as contemplated under Sec. 10 of the Representation of People Act. It has already been mentioned that there is no post of Managing Agent in Bokaro Steel Ltd. and it has been categorically stated by the high officials of the Company and it has also come in the evidence that the petitioners are in the non-executive post and although it has not been specifically stated but it could be found that their appointments or removal have no nexus with the Central Government although they have got the maximum shares in the Company. In that view of the matter, the decision arrived at by the Returning Officer is against law. Moreover the word Managing Agent in the Companies Act have been abolished under Sec. 324-A by the Amendment of the Companies Act in the year 1969 w.e.f. 3.4.1970. Thus, there is no post of Managing Agent since 3.4.1970 and it has been stated by the Chief Manager (Personnel & Administration) that there is no Managing Agent in their Company and that gets support from the Companies Act itself that there cannot be any Managing Agent in the Government Companies. So, if Sec. 10 (4) of the Representation of People Act is read harmoniously with Sec. 324-A of the Companies Act after amendment in the year 1969 then the rejection of the nomination papers of the petitioners terming them as Managing Agents, which term has got no existence in the eye of law in the B. S. L., the whole orders are not only illegal but must be construed as a nonest in the eye of law. 22. 22. Then the various submission has been made by Mr. Dhirendra Kumar and also in the written argument that the petitioners were holding office of profit as their remunerations were being granted by the Central Government and as their remuneration is depending on the revenue of the Central Government they are debarred from being member of the Legislative Assembly or Council under Article 191(1) of the Constitution of India, although in the rejection order there is no reference of the Constitutional provisions and such submission is definitely extraneous. However, as arguments have been placed on this score also, I feel it proper to give decision on this score also. In order to constitute a disqualification under Article 102(1)(a) or 191(1)(a) office of profit must be held under the Government. Employees of a Statutory body Corporate cannot be said to be holding their office under the Government where they are neither appointed nor are removable by the Government nor are they paid out of the revenues of the Government. Here, in the present case, there is not an iota of evidence that the Election petitioners were appointed by the Government of India or they are liable to be removed by the Government or that their remunerations are being paid out of the revenues of the Government. Only because the Company has the control of the Union Government, it cannot be said that all the employees of that Company are Government employees and that they are holding office of profit. In this respect reference may be made to -- (Ravanna V/s. Kaggeerappa) -- (Ashok V/s. Ajay) -- (Abdul Shakoor V/s. Rikhab Chand) and -- (Gurushanthappa V/s. Abdul). In 1969 S.C. 744, it was held by the Apex Court that theory of separate juristic entity of a Statutory Corporation or a Government Company has been carried to its logical extreme to hold that when an Undertaking is transferred to a Government Company, the employees of the Department who continue in the service of the Company cease to hold office of profit under the Government within the meaning of Article 191(a), even though no arrangement or regulation is made, terminating the services of those employees under the Government and their names continue to appear in the official civil list. Thus even a Government employee who remain under the employment of a Statutory Corporation and the same has been changed into a Government Company and he remained under the employment of the Company then although he was under the Government list as an employee he ceases to remain so. Similar is the position with the teachers in the aided educational Institution. Even the L. I. C. employees are held to be not holding the office of profit as contemplated under Article 191(1)(a) of the Constitution of India as held by Justice Krishna Iyer, 1990 (2) S.C. and F. B. E.C 340 (Manohar Nathurao Samarth V/s. Marotrao). The object behind such exclusion is to maintain the independence of the members of the Legislature from any sort of Government control or influence. It has been done for the purpose that when Government has a say in the matter of appointment or removal of a person then he should not be allowed to sit in the Legislature, even though by such appointment, the relationship of master and servant may not be constituted between such person and the Government. So, if a Managing Director of a Government controlled company is allowed to be a Member of the Assembly or Parliament then he might influence the Government policy to have a policy decision in favour of the Company and in that way he is debarred from sitting the Assembly or the Parliament under these two Articles of the Constitution of India. But, the petitioners in these two Election petitions are too petty employees, one being a Khalashi and a Mater Reader, whose duty and nature of work has got nothing to do with the policy decision of the Government Company nor therefore, having anyway concern with the Government who has got the maximum share in the Company. Only because the Company is a Government controlled one, its petty employees do not became disqualified as neither their appointment nor removal nor their remuneration is depending on the Government policy. In that view of the matter, this submission of Mr. Dhirendra Kumar under Article 191(1)(a) and 102(1)(a) of the Constitution of India are also not applicable even though those grounds have not been taken by the Returning Officer in rejecting the nomination papers of the petitioners. In that view of the matter, this submission of Mr. Dhirendra Kumar under Article 191(1)(a) and 102(1)(a) of the Constitution of India are also not applicable even though those grounds have not been taken by the Returning Officer in rejecting the nomination papers of the petitioners. Moreover, it appears that this Aklu Ram Mahto, the respondent was also an employee of the B.S.L. and remaining as an employee he had fought earlier elections and after being elected he had resigned from the post. 23. In the present case also, it has come in the evidence that undertaking had been taken from the Election petitioners that in case of their winning the Election and becoming a Member of the Assembly they shall have to resign from the services. Various objections have been rafsed regarding permission being granted by the B. S. L. It is stated by referring the different Circulars and the Service Rules of the employees of the Company that only the Managing Director has the power to give permission either to join politics in exceptional cases or in according permission to fight out the Election, but the permission order has been signed by Deputy Chief General Manager and as such permission itself is bad and hence in consequence thereof, the rejection of the Nomination paper is proper. But, nowhere in the rejection order, it has been held that the permission given to the petitioners by their employer were bad and as such the Nomination papers have been rejected. So, it is an extraneous consideration, which is nobodys case. But the signing authority has deposed that he had only signed the Certificates granting permission, but the decision was taken regarding according permission in the Managing Directors level and as per office procedure and convention on the basis of the office notes he had to issue the Certificate. There is no illegality in that process. Even if there is some illegality in granting of permission then also it is a matter between employer and employee and that has got nothing to do with the acceptance or rejection of the Nomination paper of the petitioners and with the same has not been mentioned as a ground of rejection of Nomination paper. Whether the petitioners have been granted legal permission or not is a matter to be considered between the employer and employee. Whether the petitioners have been granted legal permission or not is a matter to be considered between the employer and employee. If the Service conduct or the Service Rules did not allow such joining on politics or fighting of the Election, that will be taken under the Service Conduct Rules against the employee by the employer, It has got nothing to do in this Election petition as the fact remains that the petitioners have been granted permission by the employer to fight out the Election. Some high sounding words had been mentioned in the written argument filed on behalf of the respondent and a judgment of the Apex Court as reported in 17 E.L.R. 181, had been referred to. That judgment related to the procedural technicalities. Such procedural technicalities is of no question in these two proceedings. Nowhere, it has been stated that there were any procedural defect in rejecting the Nomination papers by the Returning Officer. AIR 1993 S.C. 2042 , has also no much relevance in the facts and circumstances of the present case. It is true that the Courts/Tribunals are slow in setting aside the Elections as a matter of larger interest and policy of the public in view of the huge expenditure of holding Elections very frequently, but if for a defect apparent on the face of it has debarred a person to fight out election and there is illegality and impropriety apparent on the face of if it in rejecting the Nomination then it cannot be said that there was a fair election fought and the petitioners definite right had been curtailed . 24. In that view of the matter, I am constrained to hold that the rejection orders regarding the Nomination papers of the petitioners as contained in Annexure-5 are wholly illegal, improper as the grounds on which the rejection had been made are wholly extraneous and without any legal basis whatsoever. Hence, the Election petitions are hereby allowed and the Election of the Respondent, Aklu Ram Mahto from 279 Bokaro Assembly Constituency is hereby set aside. However, in the nature and circumstances of the case, no order as to costs. The Joint Registrar is directed to send an authenticated copy of this Judgment to Chief Election Commissioner of India as also substance of the decision to the Speaker, vidhan Sabha, Bihar.