Research › Browse › Judgment

Gauhati High Court · body

1999 DIGILAW 388 (GAU)

Swapan Roy v. Pradyut Bordoloi

1999-12-03

D.BISWAS

body1999
This election petition presented under sections 80, 80A and 81 of the Representation of Peoples Act, 1951 has been filed by the petitioner Shri S wapan Roy for setting aside the election of respondent Shri Pradyut Bordoloi to the Assam Legislative Assembly from No. 124 Margherita Legislative Assembly Constituency. 2. The petitioner's case is that he is a citizen of India having his permanent residence at Ledo Bazar, PO and PS Ledo in Margherita Sub Division within the district of Tinsukia and that he is a voter in the said Assembly Constituency. His name appears at SI. No. 173 of Part No 122 of the Electoral Roll. The petitioner is a clerk under North Eastern Coal Field, Tirap Colliery, Coal India Ltd which is a Central Govt Undertaking. The bye election to the aforesaid constituency was scheduled to be held on 3.6.98 as Shri Tarun Gogoi, the then MLA was elected as a Member of Parliament from Kaliabor Constituency. The petitioner and the respondent No.l along with others filed their respective nomination papers to contest the bye election. The petitioner submitted an application on 14.5.98 to the General Manager, North Eastern Coal Field, Margherita for sanction of leave without pay to enable him to contest the election. The leave was accordingly sanctioned on 15.5.98. The petitioner submitted two duly filled in nomination papers on 16.5.98 as an independent candidate and deposited necessary stipulated fees. He also subscribed oath/affirmation as required before the authorised officer on the same day. A certificate to this effect was also issued by the Assistant Returning Officer. The nomination papers were scrutinised on 18.5.98 in presence of all the candidates and their representatives including the petitioner. During the scrutiny, the Returning Officer informed the petitioner that there was a complaint filed by one Shri Ananda Arandhara, Working President of Block Congress Committee, alleging that he was a Govt employee and, as such, his nomination papers ought to be rejected. The respondent Shri Pradyut Bordoloi also raised verbal objection. During the scrutiny, the Returning Officer informed the petitioner that there was a complaint filed by one Shri Ananda Arandhara, Working President of Block Congress Committee, alleging that he was a Govt employee and, as such, his nomination papers ought to be rejected. The respondent Shri Pradyut Bordoloi also raised verbal objection. Without furnishing any copy of the complaint and in deference to his submission that he was not a Govt servant and did not suffer any disqualification under section 10 of the Representation of the Peoples Act, 1951, the Returning Officer without consideration of the relevant provisions of law and in the absence of Shri Arandhara, the complainant, illegally and improperly rejected the nomination papers of the petitioner by order dated 18.5.98. The petitioner submitted a representation before the Returning Officer on 19.5.98 to allow him to contest the forthcoming bye election. The petitioner also filed a representation to the Chief Election Commissioner on 20.5.98. But there was no response to the said representations. The petitioner is the General Secretary of the Assam Colliery Mazdoor Congress Union which is affiliated to the Indian National Trade Union Congress. The Union has about 3,000 members. That apart, he is the General Secretary of Pragati Jana Morcha and a member of the Executive Committee of the Tinsukia District Congress Committee. He has wide popularity and is known to almost all the voters of the constituency. His prospect to win the election has been nipped in the bud because of the illegal rejection of his nomination papers by the Returning Officer. The respondent Shri Bordoloi was eventually declared elected from the same constituency on 6.6.98. Hence, this petition for declaration that the election of respondent Shri Pradyut Bordoloi is void under section 100 of the Representation of Peoples Act, 1951. 3. The respondent Shri Pradyut Bordoloi in his written statement submitted that the petition is not maintainable as the Returning Officer who has passed the order dated 18.5.98 rejecting the nomination has not been made a party. The respondent, however, denied the averments made in the petition and called upon the petitioner to substantiate his claim that his nomination papers were illegally rejected by the Returning Officer. In para 8 of the written statement it is denied that the answering respondent also verbally objected to the acceptance of the nomination papers of the petitioner. The respondent, however, denied the averments made in the petition and called upon the petitioner to substantiate his claim that his nomination papers were illegally rejected by the Returning Officer. In para 8 of the written statement it is denied that the answering respondent also verbally objected to the acceptance of the nomination papers of the petitioner. According to him, the election petitioner was holding an office of profit under the Central Govt and was thus disqualified under d the Constitution of India and the relevant laws to contest the election. In para 13 of the written statement, the respondent further averred that the functions performed and responsibilities discharged by the election petitioner in course of his employment with the Coal India Ltd are supervisory and managerial in nature and, as such, the disqualifications stipulated in section 10 of the Representation of Peoples Act are also applicable in his case. Since he was holding an office of profit under the Central Govt, the Returning Officer acted within his jurisdiction in rejecting the nomination. It is further averred that the Coal India Ltd is nothing but an alter ego of the Central Govt performing duties and functions in matters concerning mining, production, distribution, sale, supply and pricing of coal which are essentially conferred on the Central Govt by the Constitution and the laws. It is a statutory Corporation wholly owned and controlled by the Central Govt and, as such the petitioner was holding an office of profit under the said Govt at the time of filing and scrutiny of the nomination papers. 4. On consideration of the pleadings of the respective parties as reproduced above and upon hearing the learned counsel for both the parties, the following issues were framed by this Court, namely: (1) Whether the election petition is maintainable in law ? (2) Whether the election petitioner submitted two nomination papers on 16.5.98 and whether rejection of the nomination paper by order dated 18.5.98 is illegal and unjustified? (2) Whether the election petitioner submitted two nomination papers on 16.5.98 and whether rejection of the nomination paper by order dated 18.5.98 is illegal and unjustified? (3) Whether objection raised by Shri Ananda Arandhara and the returned candidate controverting the validity of nomination papers submitted by the petitioner were admitted or denied or rebutted by the election petitioner during scrutiny of the nomination papers held on 18.5.98 ?(4) Whether on the date of scrutiny of the nomination papers the election petitioner was disqualified under section 10 of the Representation of Peoples Act,1951 or under the provisions of Article 191 (1) (a) of the Constitution of India from being chosen as a Member of Legislative Assembly ? (5) Whether non-consideration of the petitioner's representation by the Returning Officer and the Chief Election Commissioner has amounted to non-compliance within the meaning of the section 100 (1) (d) (iv) of the Representation of Peoples Act, 1951? (6) Whether the election of the respondent is liable to be/declared invalid for improper and illegal rejection of petitioner's nomination? (7) To what relief, if any, the election petitioner is entitled in law ? 5. In order to substantiate their respective cases, the petitioner examined himself while the respondent Shri Pradyut Bordoloi examined himself and another witness. I would now like to-discuss the issues severally or jointly in order of preference. Discussion : Issue No. 1 : 6. The question to be decided in this issue is whether the petition could be maintained for non-joinder of the Returning Officer who had rejected the nomination papers of the petitioner by an order dated 18.5.98. The respondent by the petition dated 7.12.98 also reiterated the same contention that the petition is bad for non-joinder of the Returning Officer. 7. The issue was not addressed during the course of argument. Section 82 of the Act provides for as to who should be joined as respondents to an election petition. This petition is based on alleged improper rejection of nomination papers. There is no allegation of any corrupt practice. The returned candidate has also been arrayed as respondent in this petition. Non joinder of the Returning Officer, not being the requirement of the provisions of the Representation of Peoples Act, 1951, will not in any manner render the petition liable to be rejected. There is no allegation of any corrupt practice. The returned candidate has also been arrayed as respondent in this petition. Non joinder of the Returning Officer, not being the requirement of the provisions of the Representation of Peoples Act, 1951, will not in any manner render the petition liable to be rejected. Here we may conveniently rely upon the decision in Jyoti Basil & others vs. Debi Ghosal & others, AIR 1982 SC 983 where the Supreme Court held that no one may be joined as a party to an election petition otherwise than as provided by sections f 82 and 86 (4) of the Act. There is nothing else on record to show that the petition is not maintainable. This, issue, therefore, stands answered in favour of the petitioner. Issue Nos 2, 3 and 4 : 8. Issue Nos 2, 3 and 4 deal with the crux of the problem and hence I proposed to discuss them together. 9. The petitioner Shri Swapan Roy in his evidence stated that he had filed the nomination papers for contesting the bye-election as an independent candidate.The nomination papers of the petitioners were rejected by the Returning Officer on 18.5.1998. He tendered Ext 1, the certified copy of the order passed by the Returning Officer. He also proved Ext 1 (1), the signature of the Returning Officer. Ext 1 was tendered under objection raised by the learned counsel for the respondent. But there appears to be no reason for sustaining such objection as the rejection of the nomination papers of the petitioner is undisputed. The petitioner further deposed that he is working as Grade I Clerk in Tirap Colliery under North Eastern Coal Field which is a Govt of India enterprise. He also stated that he does not hold any managerial or executive post in his capacity as Grade I Clerk. According to him, he is neither a Managing Agent nor a Secretary of the company. Ext 2 is the certificate issued by the employer as to his rank and status. The petitioner further proved Ext 3, a copy of representation submitted after rejection of his nomination. Ext 4 is copy of another representation submitted to the Returning Officer with copy to the Chief Electoral Officer. He reiterated his prayer for cancellation and declaration of result of the election of the respondent Shri Pradyut Bordoloi as illegal and void. 10. The petitioner further proved Ext 3, a copy of representation submitted after rejection of his nomination. Ext 4 is copy of another representation submitted to the Returning Officer with copy to the Chief Electoral Officer. He reiterated his prayer for cancellation and declaration of result of the election of the respondent Shri Pradyut Bordoloi as illegal and void. 10. On the face of above evidence forthcoming from the petitioner, it is necessary to have a look into the order of rejecting (Ext 1) which reads as follows : “Decision of Returning Officer accepting or rejecting the Nomination Paper under section 36 of RPA, 1951. Bye-election, 124 Margherita LAC 1998. 18.5.98: At the time of scrutiny of Nomination Papers with respect to 124 Margherita Legislative Assembly Constituency, an objection was raised regarding the nomination paper of Shri Swapan Roy, S/o late Jatindra Chandra Roy, resident of Ledo, PO Ledo, District Tinsukia, Assam (whose name is entered at Serial No. 173 in Part No. 122 of the Electoral Roll for 124 Margherita LAC) by Shri Anandaram Arandhara, Working President of Margherita Block Congress Committee and Shri Pradyut Bordoloi, the contesting candidate of Indian National Congress. The objection raise was as under: That, Shri Swapan Roy, is working a clerk in the Ledo Colliery Office of NECF (Coal India Ltd), thereby holding an office of profit under a Govt company having Govt share of more than 25%. Seen the objection petition and heard the objection raised. I have examined this nomination paper in accordance with section 36 RPA 1951, studied the relevant provisions of law, viz section 10 of the Representation of People Act, Article 191 (a) of Constitution of India and the Assam State Legislature Members (Removal of Disqualifications) Act, 1950. Further, Shri Swapan Roy has submitted that at the point of time of scrutiny of his nomination, he was an employee of Coal India Ltd, and that he is continuing in his service. He has not resigned nor has he produced any letter of acceptance of resignation by competent authority to the undersigned on the day of scrutiny of nomination. No application was made for time to rebut the objection. From the above, it is evident that he is holding an office of profit under Govt company. He also does not come under the purview of exemptions from disqualification under the Assam Legislative Members (Removal of Disqualifications) Act, 1950. No application was made for time to rebut the objection. From the above, it is evident that he is holding an office of profit under Govt company. He also does not come under the purview of exemptions from disqualification under the Assam Legislative Members (Removal of Disqualifications) Act, 1950. Thus, it may be concluded that the candidate Shri Swapan Roy is clearly disqualified in law to be a member of the State Legislature Assembly. Hence, it is decided that the nomination papers of Shri Swapan Roy is rejected. Sd/- LS Chanson, Returning Officer, 124 Margherita LAC” 11. It is would appear from the above order that the nomination paper of the petitioner was rejected mainly on the ground that he was holding an office of profit under a Govt company. In order to examine the validity of this finding, it is necessary to have a look at the first instance to the provisions incorporated under section 10 of the Act of 1951 which reads as follow: “Section 10: Disqualification for office under Govt company. A person shall be disqualified if, and for so long as, he is a managing agent, manager or Secretary of any company or Corporation (other than a co-operative society) in the capital of which the appropriate Govt has not less than twenty five percent share.” 12. The provisions of law, as above, disqualifies a Managing Agent, Manager or Secretary of any company or Corporation if either the Union Govt or the State Govt have share of more than twenty five percent in the capital of such company.The allegation before the Returning Officer made by Shri Anandaram Arandhara and the respondent Shri Pradyut Bordoloi was that the Ledo Colliery Office of North Eastern Coal Fields (Coal India Ltd) is a company where the Central Govt have more than twenty five percent share and, as such, the petitioner Shri Swapan Roy working in that company was disqualified from becoming a member of the State Legislative Assembly. The Returning Officer concluded that the petitioner was holding an office of profit in a Govt company and, as such, he was disqualified in law to be a member of the State Legislative Assembly. The Returning Officer concluded that the petitioner was holding an office of profit in a Govt company and, as such, he was disqualified in law to be a member of the State Legislative Assembly. This finding necessitate a scrutiny of the evidence on record in order to ascertain whether the petitioner was holding any post which could be equated in rank and status with the post of a Managing Agent, Manager or Secretary of any company or Corporation. 13. The petitioner apart from his statement that he is working as Grade I Clerk in Tirap Colliery which is neither a managerial or executive post also proved Ext 2, a certificate, issued by the Deputy Chief Mining Engineer in order to show his rank and status. The Ext 2 reads as follows : “Ref No. Misc/171/98/TRP Date 6.6.1998 To whom it may concern This is to certify that Shri Swapan Roy, S/o late Jatindra Ch Roy, an employee of Tirap Colliery bearing the post of Clerk Grade I and his pmployee No. is 30845. His salary wages is as follows : Basic = Rs. 3,094.00 PDA = Rs. 256.50 VDA = Rs. 2,676.15 SDA = Rs. 59.81 By Chief Mining Engineer Tirap Colliery.” 14. Ext 2 in unambiguous language shows that he petitioner was working as a Grade I employee and his emoluments were slightly above Rs. 6,000-. During the course of cross examination nothing could be elicited out of him to show that he was discharging the functions of a Managing Agent or a Manager or a Secretary of the said company/Corporation. 15. The respondent examined himself as DW 1 in his evidence he stated that the petitioner was working as Head Clerk at the Ledo Colliery which is under the control of the Coal India Ltd. According to him, the petitioner is performing supervisory functions and he is the right hand man of the Managing Agent of the colliery. He further deposed that sometime the petitioner identified him as the Technical 'Secretary of the Agent. But the evidence of respondent (DW 1) does not appear to have any significance in view of the certificate Ext 2 issued by the Deputy Chief Mining Engineer. The oral evidence of the respondent (DW 1) cannot be preferred to devalue what is stated in Ext 2 from where we find that the petitioner is a Grade I Clerk. But the evidence of respondent (DW 1) does not appear to have any significance in view of the certificate Ext 2 issued by the Deputy Chief Mining Engineer. The oral evidence of the respondent (DW 1) cannot be preferred to devalue what is stated in Ext 2 from where we find that the petitioner is a Grade I Clerk. The respondent also examined Shri Mahesh Chandra Bora as DW 2 who was the General Manager of North Eastern Coal Fields, Margherita at the relevant time. He has stated on oath that Shri Roy was the Head Clerk and he was supervising the works of other clerks and also looked after their service matters. He further deposed that Shri Roy was also looking after production, despatch of records and service matters of other employees. He stated that it was a supervisory post and Shri Roy was the right hand man of the Agent of the colliery. 16. In his cross examination DW 2 Shri Bora stated that the hierarchy of officers in the colliery consists of Manager, Assistant Manager, Safety Officer. Under Manager, Overman, Mining Sardars, Time Keepers, Attendance Clerks etc. There is another set of officers in the office of the Agent which includes the Agent himself in addition to Personal Manager, Civil Engineer and Survey Officer. The post of Agent is higher in rank than the post of Head Clerk and other persons. According to him, the Agent is the Executive Officer of the Colliery. He further stated that the Director (Technical)'is the appointing authority of the Agent, and c the General Manager is the appointing authority of the clerk including Head Clerks. He further deposed that in the absence of the Agent, the petitioner Shri Roy used to look after his works. 17. The evidence of DW 2 specially about the hierarchy of officers clearly indicate that a Grade I Clerk does not hold any responsible post. In an establishment, any clerk or to say any employee can be entrusted with the works of any other " officer depending upon his degree of competence. This does not mean that such employee assumes the rank and status of the officer whose work is entrusted to him. In an establishment, any clerk or to say any employee can be entrusted with the works of any other " officer depending upon his degree of competence. This does not mean that such employee assumes the rank and status of the officer whose work is entrusted to him. The evidence of DW 2 are not borne out of record and obviously it would be difficult for this Court to equate a Grade I Clerk with a Managing Agent or Manager or Secretary of any Govt company or Corporation. In the circumstances, this Court is of the firm opinion that Shri Roy was not holding any of the post mentioned in section 10 of the Act of 1951 and, therefore, this statutory disquali­fication under section 10 of the said Act cannot be applied in the instant case. 18. During the course of argument, Shri PK Goswami learned senior counsel for the respondent submitted that the bar under section 10 of the Act of 1951 is in addition to the disqualification prescribed under Article 191 (a) of the Constitution. Shri Goswami argued that the Coal India Ltd is nothing but the alter ego of the Central Govt which holds 100 percent share of the Corporation and the Central Govt is in control of its affairs for all practical purposes. According to him, the Coal India Ltd is an instrumentality of the Union Govt created by a statute with absolute control vested in the Central Govt and, therefore, the employees of this Corporation being holders of 'office of profit' under the Central Govt are not eligible for being chosen as members of the Legislative Assembly. 19. In order to substantiate this submission, Shri Goswami has referred to a number of cases decided by the Supreme Court as well as other High Courts. Shri Mazumdar, learned counsel for the petitioner, al$o relied upon a number of decisions of the Apex Court to dislodge the above contention advanced by Shri Goswami. According to Shri Mazumdar, the disqualification prescribed under Article 191 (1) (a) is not relevant so far the employees of the Coal India Ltd is concerned. With reference to the rank and status of the petitioner, Shri Mazumdar submitted that the petitioner is not a holder of any office of profit under the Govt of India and, therefore, the order of rejection of the nomination papers of the petitioner is not sustainable in law. With reference to the rank and status of the petitioner, Shri Mazumdar submitted that the petitioner is not a holder of any office of profit under the Govt of India and, therefore, the order of rejection of the nomination papers of the petitioner is not sustainable in law. 20. The expression 'office of profit' has not been defined in the Constitution. No definition of the expression is also available in the Representation of People Act, 1951. A plain reading of the Article 191 (1) (a) would show that a person is 7 disqualified if he holds an 'office of profit' under the appropriate Govt. So far the petitioner is concerned, there is no dispute that he holds the office of a Grade I Clerk in Tirap Colliery specified in the Schedule to the Coal Mines (Nationalisation) Act, 1973 and it is undoubtedly an 'office of profit' since he has been drawing a salary exceeding Rs. 6,0007- per month. But the question remains to be answered whether this is an 'office of profit' under the Central Govt. 21. In Dr. Deorao Laxman Anande vs. Keshov Laxman Borkar, AIR 1958 Bombay 314, the object of Article 191 of the Constitution has been discussed in para 2 and 3. According to Bombay High Court, the object of this provision is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the Executive and who, consequently, being under an obligation to the Executive, might be amenable to its influence. The provision appears to have been made to eliminate or reduce the risk of conflict between duty and self interest amongst the members of the Legislature. It has been held in para 3 that before a person can be held to be disqualified under Article 191 (1) (a), three things must be proved : (i) that he held an office; (ii) that it was an office of profit; and (iii) that it was an office under the Govt of India. 22. In Guru Govinda Basil vs. Sankari Prasad Ghosal & others, AIR 1964 SC 254 , the Supreme Court held that for holding an office of profit under the Govt, one need not be in the service of the Govt and there need be no relationship of master and servant between them. 22. In Guru Govinda Basil vs. Sankari Prasad Ghosal & others, AIR 1964 SC 254 , the Supreme Court held that for holding an office of profit under the Govt, one need not be in the service of the Govt and there need be no relationship of master and servant between them. The Constitution makes a distinction between the holder of an office of profit under the Govt and the holder of a post or service under the Govt. The Constitution has also made a distinction between the holder of an office of profit under the Govt and the holder of an office of profit under a local or other authority subject to the control of Govt. The decisive test for determining whether a person holds an office of profit under the Govt is the test of appointment. It has been ruled that it is not correct to say that the several factors which enter into the determination of this question the appointing authority, the authority vested with power to terminate 'the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co-exist and each must show subordination to Govt and that if one of the element is absent, the test of a person holding an office under the Govt, Central or State, is not satisfied. The circumstances that the source from which the remuneration is paid is not decisive of the question. Whether stress will be laid on one factor or the other will depend on the facts of each case. However, where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then it must be held that the officer in question holds the office under the authority so empowered. 23. Again in Shivamurthy Swami Inamdar vs. Agadi Sanganna Andanappa, (1971) 3 SCC 870 , the Supreme Court prescribed the test for determining the question whether an office is an office under the Govt and whether it is an 'office of profit'. 23. Again in Shivamurthy Swami Inamdar vs. Agadi Sanganna Andanappa, (1971) 3 SCC 870 , the Supreme Court prescribed the test for determining the question whether an office is an office under the Govt and whether it is an 'office of profit'. The tests suggested are : (1) Whether the Govt makes the appointment; (2) Whether the Govt has the right to remove or dismiss the holder; (3) Whether the Govt pays the remuneration; (4) What are the functions of the holder ? Does he perform them for the Govt, and (5) Does the Govt exercise any control over the performance of these functions ? 24. The Supreme Court also dealt with this question in Biharilal Dobray vs. Roshan Lal Dobray, AIR 1984 SC 385 , and in Satrucherala Chandrasekhar Raju vs. Vyricherala Pradeep Kumar Dev & another (1992) 2 SCC 404. In Satrucherala Chandrasekhar Raju the Supreme Court took into consideration their earlier decision in Biharilal Dobray and held that Article 102 (1) (a) and 191 (1) (a) are incorporated in order to eliminate or reduce the risk of conflict between the duty and interest amongst the members of the Legislature and to ensure that the Legislature does not contain person who have received benefits from the Executive. It has been further held that the Govt is undertaking several projects and activities including commercial activities through the corporation and local bodies and exercising some control over such Corporations and bodies. In that view of the matter they may come within the meaning of the 'State' as envisaged in Article 12, but that may not be a decisive factor. Section 10 of the Representation of People Act as well as Article 58 (2) of the Constitution of India do indicate that all persons employed in such undertakings, corporation or local bodies cannot be deemed to suffer disqualification for contesting the election except to the extent indicate therein. The incorporation of a body corporate and entrusting the functions to it by the Govt may suggest that the statute intended it to be a statutory corporation independent of the Govt. But it is not conclusive of the question whether it is really so independent. Sometime, the form may be that of a body corporate independent of the Govt, but in substance, it may just be the alter ego of the Govt itself. But it is not conclusive of the question whether it is really so independent. Sometime, the form may be that of a body corporate independent of the Govt, but in substance, it may just be the alter ego of the Govt itself. In this judgment the Supreme Court dealt with the true test of determination of whether a person holds an 'office of profit' under the Govt and held that it depends upon the degree of control the Govt has over the Govt company. 25. Depending on the ratio of the above cases, the following tests may be formulated for the purpose of the deciding the question whether the petitioner is a holder of 'office of profit' under the Central Govt: (i) Whether the petitioner held an office? (ii) Whether it was an office of profit ? (iii) Whether the Govt has the authority to create the posts ? (iv) Whether the Govt has the power to remove or dismiss the holder ? (v) Whether the Govt pays the remuneration ? What are the functions of the holder and whether the performs on behalf of the Govt ? (vi) Does the Govt exercises any control over the performance of these functions? 26. Before we take up the above questions for consideration, we may refer to certain special features of the Memorandum of Association and Article of Association of Coal India Ltd (Ext A) in order to ascertain the formation and composition of this company. It is apparent that the Coal India Ltd is a private company incorporated under the Companies Act, 1956 with 100 percent share owned by the Central Govt. Part IIIA of the Memorandum list the objects to be pursued by the company. Clause 5 of Part IIIA requires the company to finance replacement expenditure from its' internal sources. Part IHB deals with ancillary objects. The Articles of Association further shows that it is a Govt company having not more than 15 members. The business of the company has been entrusted to a Board of Directors consisting of not less than three and not more than fifteen Directors. The Chairman of the Board is to be appointed by the President and other members of the Board including Vice Chairman shall be appointed by the President in consultation with the Chairman. The Directors are entitled to such salaries and/or allowances as may be determined by the President. The Chairman of the Board is to be appointed by the President and other members of the Board including Vice Chairman shall be appointed by the President in consultation with the Chairman. The Directors are entitled to such salaries and/or allowances as may be determined by the President. The President may also from time to time appoint Functional Director who shall be whole time employee of the company. The President is also empowered to remove the Chairman, Vice Chairman or any whole time or part time Director from office subject to certain conditions. Article 36 (b) provides for reservation of important matters including winding up of the company for the decision of the President. Article 37 empowers the President to issue directives and instructions as may be considered necessary in regard to conduct of business and affairs of the company with powers to vary and annul such directives or instructions. Article 47 deals with certain powers given to the Board of Directors which includes, inter alia, the power to create posts in the scales of pay not equivalent to or higher than the post at the Board level, and to appoint and remove or suspend Managers including General Manager, Secretaries, Officer, Clerks, Agent and all other categories of employees. 27. The salient features epitomised above clearly indicate that the Board of Directors of Coal India Ltd have been assigned to conduct the business of the company. Relevant to mention here that while the powers of appointment and removal of the Directors have been reserved with the President of India, the decision to create posts below the Board level and to nil up such posts or to remove such officers have been assigned to the Board of Directors without any control. 28. On recapitulation, what we find is that the Central Govt's control over the company is to the extent of important decision making a provided in Article36 (b). Other affairs are to be managed and looked after by the Board of Directors in their absolute discretion. The power to create posts below the Board level including powers to fill up these posts and to remove the incumbents of such posts from service are left with the Board of Directors. Other affairs are to be managed and looked after by the Board of Directors in their absolute discretion. The power to create posts below the Board level including powers to fill up these posts and to remove the incumbents of such posts from service are left with the Board of Directors. The Central Govt does a not appear to have any say in the matter of creation of posts below the Board level and the service conditions of the incumbent of such posts, including disciplinary matters. There is also no provision to show that the Central Govt is required to pay the remuneration or to augment the fund for payment of such remuneration. 29. The Supreme Court in Bira Kuhere Naik vs. Coal India Ltd & others, AIR 1986 SC 2123 had the occasion to deal with the status of an employee of a non-specified coal mine. The observations made therein will do some help this Court in resolving the status of an employee of a specified coal mine. Hence, the observation of the Supreme Court which best be read in its original language is reproduced below: “3. The Coal Mines (Taking over of Management) Act, 1973 was enacted-to provide for taking over of the Management of coal mines, pending nationalisation of such mines with a, view to ensuring rational and co-ordinated development of coal production and for promoting optimum utilisation of the coal resources consistent with the growing requirements of the country, and for matters connected therewith or incidental thereto.”.... The Coal Mines (Nationalisation) Act (Act No. 26) of 1973 was enacted by the Parliament to provide for the acquisition and transfer of the right, title and interest of the owners of the coal mines specified in the Schedule. Section 2 (b) to the Nationalisation Act defines a coal mine in the same way as the corresponding provision of the Management Act. Section 3(1) provides that on the appointed day ie May 1,1973 the right, title and interest of the owners in relation to the coal mines specified in the Schedule to the Act shall stand transferred to, and vest absolutely in the Central Govt free from all incumbrances.... ..... 4..... .... Section 3(1) provides that on the appointed day ie May 1,1973 the right, title and interest of the owners in relation to the coal mines specified in the Schedule to the Act shall stand transferred to, and vest absolutely in the Central Govt free from all incumbrances.... ..... 4..... .... Section 5 (1) empowers the Central Govt to direct by an order in writing that the rights, title and interest of an owner in relation to a coal mine shall instead of continuing to vest in the Central Govt, shall vest in the Govt company, whereupon such company shall be the lessee of the coal mine. Section 7 provides that the Central Govt or the Govt company shall not be liable to discharge any liability of the owner, agent, manager or managing contractor of a coal mine in respect of any period prior to the appointed day (ie May 1,1973). Section 11 provides that the general superintendence, direction, control and management of the affairs and business of a coal mine, the rights title an interest of an owner in respect of a coal mine vested in the Central Govt under section 3 in relation to a coal mine in respect of which Central Govt has issued direction under section 5 (1) of the Act shall vest in the Govt company and in case of coal mine in relation to which no direction had been made it shall vest in one or more custodians appointed by the Govt. Section 14 provides that every person who is workman within the meaning of Industrial Disputes Act, 1947 or even if he is not a workman and who has been in the employment immediately before the appointed day (ie May 1,1973) shall become employee of the Central Govt or of the Govt company as the case may be, a shall hold office or service in the coal mine with the same right to pension, gratuity and other benefits, 12. In view of the above discussion there is no escape from the conclusion that Natundihi Pahariabera Colliery was not a coal mine on the appointed day and neither its management nor its owner ever vested in the Central Govt. The petitioner and other workmen are therefore not entitled to the protection of section 14 of the Nationalization Act and no Mandamus as claimed by the petitioner directing the Central Govt. The petitioner and other workmen are therefore not entitled to the protection of section 14 of the Nationalization Act and no Mandamus as claimed by the petitioner directing the Central Govt. to treat the petitioner and other employees as employees of the Central Govt. can be issued .... ....." 30. In a nutshell it can be said that the Central Govt. by an order in writing under provisions of section 5(1) direct that such right, title and interest of an owner shall instead of continuing to vest in the Central Govt. would vest in a Govt. company on the date of publication of the direction or as may be specified in the direction. On such vesting, all the rights and liabilities of the Central Govt. in relation to such coal mines shall be deemed to have become the rights and liabilities of the Govt. company. A plain reading of the provisions referred to above in unambiguous term show that on and from the date the direction under sub-section (1) of section 5 is given effect to, the Central Govt. ceases to have any right over the coal mines. This alternately shows that the employees of the specified coal mines for all purposes become employees of the Govt. company and shall continue as such with the same right to pension, gratuity and other benefits. 31. In Dr. Gurushanthappa vs. Abdul Khuddas Anwar & others, AIR 1969 SC 74,. the Supreme Court ruled that in view of the limited application of the disqualification laid down in Articles 102 (1) (a) and 191 (1) (a) of the Constitution, the Parliament made an additional provisions in section 10 of the Representation of People Act, 1951 by laying down that a person shall be disqualified if and for so long as, he is a Managing Agent, Manager or Secretary of any company or corporation in the capital of which the appropriate Govt has not less than twenty five percent share. It is clear from the said judgment that the Parliament restricted the disqualification to a person holding the office only of a Managing Agent, Manager or Secretary of a company and not to other employees of the company. It is clear from the said judgment that the Parliament restricted the disqualification to a person holding the office only of a Managing Agent, Manager or Secretary of a company and not to other employees of the company. This provision in section 10 of the Act of 1951, according to the Supreme Court, "gives two indications as to the scope of the disqualification laid down in Articles 102 (1) (a) and 191 (1) (a) of the Constitution. One is that the holding of an office in a company, in the capital of which the Govt has not less than 25% share is not covered by the disqualification laid down in Articles 102 (1) (a) and 191 (1) (a) as, otherwise this provision would be redundant. The second is that even Parliament when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Govt company, but limited the disqualification to persons holding the office of Managing Agent, Manager or Secretary of the company. The fact that the entire share capital in the company in case before us is owned by the Govt does not, in our opinion make any difference.” 32. In para 15 of the judgment in Aklu Ram Mahto vs. Rajendra Mahto, (1999) 3 SCC 541 , the Supreme Court while dealing with the case of a Khalashi or a Meter Reader working in Bokaro Steel Plant held that the holders of such posts cannot be consider as holding an office of profit under the Central Govt. The reasons given is quoted below : “15. The Bokaro Steel Plant is under the management and control of Steel Authority of India Ltd. This is a company incorporated under the Companies Act. Undoubtedly, its shares are owned by the Central Govt. The Chairman and the Board of Directors are appointed by the President of India. However, the appointment and removal of workers in the Bokaro Steel Plant is under the control of Steel Authority of India Ltd. Their remuneration is also determined by Steel Authority of India Ltd. The functions discharged by Steel Authority of India Ltd or by the Bokaro Steel Plant cannot be considered as essential functions of the Govt. However, the appointment and removal of workers in the Bokaro Steel Plant is under the control of Steel Authority of India Ltd. Their remuneration is also determined by Steel Authority of India Ltd. The functions discharged by Steel Authority of India Ltd or by the Bokaro Steel Plant cannot be considered as essential functions of the Govt. Amongst the objects of Steel Authority of India Ltd set out in the Memorandum of Association are to carry on in India or elsewhere the trade or business of manufacturing, prospecting, raising, operating buying, selling, importing, exporting, purchasing or otherwise dealing in iron and steel of all qualities, grades and types. These objects also include rendering consultancy services to promote and organize an integrated and efficient development of iron and steel industry and to act as an agent of the Govt./public sector financial institutions in the manner set out in the objects clause. In this context a worker holding the post of a Khalashi or a Meter Reader is not subject to the control of the Central Govt nor is the power of his appointment or removal exercised by the Central Govt. Control over his work is exercised by the Govt, but by Steel Authority of India Ltd. The respondents cannot, therefore, be considered as holding an office of profit under the Central Govt.” 33.1 have taken into consideration the decisions rendered in Dr. SL Agarwal vs. The General Manager, Hindustan Steel Ltd, AIR 1970 SC 1150 ; Kripa Shankar Chatterjee vs. Gurudas Chatterjee & others, AIR 1995 SC 2152. In Dr. SL Agarwal (supra), the Supreme Court held that Hindustan Steel Ltd which is a Corporation is not a Department of the Govt and the employees of the Corporation are, therefore, not holders of Civil posts under the State. It has independent existence and by law it is distinct even from its members. Its employees are not entitled to protection under Article 311. In Kripa Shakar Chatterjee (supra), the question as to whether an employee of Eastern Coal Fields Ltd is a holder of office of profit under the Govt of India came in for consideration, but the question was not answered as the employee concerned had in fact resigned from his service at the relevant time. In Kripa Shakar Chatterjee (supra), the question as to whether an employee of Eastern Coal Fields Ltd is a holder of office of profit under the Govt of India came in for consideration, but the question was not answered as the employee concerned had in fact resigned from his service at the relevant time. However, it has been held therein that a holder of an 'office of profit' under any authority of local authority subject to the control of the State or Central Govt is as such not disqualified from becoming a Member of Parliament. 34. The decision rendered in Kripal Singh, MLA vs. Uttam Singh & another, (1985) 4 SCC 621 is of immense significance as in that case the Supreme Court recommended to the Govt to have the matter examined by the Law Commission. It would be convenient to appreciate the view of the Supreme Court if we read para 3 of the said judgment which runs as follows : “3. The clear and undoubted object of Article 191 (1) (a) to (e) and the provisions of the Representation of the People Act (including section 10) is the preservation of the purity and integrity of the election process by preventing Govt or State employees from taking part in the elections. But then section 10 appears to confine the disqualification, in so far as it relates to employees of Govt companies to the 'top brass' only in such an uncouth expression may be allowed to creep into the judgment of a Court. Nowadays the activities of the State are so manifold and prolific that the State has been forced, in the interests of better management and administration and if in order to further the Directive Principles of State Policy, to set up various corporations which are but mere instrumentalities of the State. Is the principle of Article 191 (1) (a) then to be extended to employees of State Corporations also by enacting appropriate laws under Article 191 (1) (e) ? or are employees of public Corporations to be treated differently from employees of the Govt? Are not some of them in a better position to exert undesirable pressure than Govt employees ? On the other hand, are a tremendously large number of employees of public corporations to be denied the opportunity of being chosen, as representatives of the people ? or are employees of public Corporations to be treated differently from employees of the Govt? Are not some of them in a better position to exert undesirable pressure than Govt employees ? On the other hand, are a tremendously large number of employees of public corporations to be denied the opportunity of being chosen, as representatives of the people ? Do all the considerations applicable to Govt employees equally apply to employees of public sector undertakings ? Is there no distinguishing feature ? Are a large mass of highly or moderately literate people to be denied the right to speak for the people is the right to be elected, to be confined, without meaning any disrespect to anyone to the professional politicians only ? These are some of the vital questions posed and which require to be answered. The answer should be best given by the elected representatives of the people themselves. We are not shirking the decision of these question but our decision can only be confined to interpretation. Not so, Parliament which can decide upon the policy. That is why, we recommend to the Govt to have the matter examined by the Law Commission very early. When a suitable occasion arises in the future we will, of course, deal with the matter, probably helped by new legislation” 35. Shri PK Goswami, learned senior counsel referring to the observations of the Supreme Court in para 3 of the judgment argued that the question whether the employees of a Govt company other than the Managing Agent, Manager or Secretary are holders of 'office of profit' under the appropriate Govt or not may be answered to set at rest the controversy relating to the position of such employees. But the law as has been laid down uniformly by the Supreme Court in the judgments referred to above clearly indicate that the employees of such companies are not the employees of the Central Govt even though it may be owned by the Union Govt and the Directors are appointed by the President who in turn is also authorised to remove any Director from office in his absolute discretion. It would further appear that a company incorporated under the Companies Act has a separate legal entity having separate existence. The company is a different person altogether from the subscriber to the Memorandum. It would further appear that a company incorporated under the Companies Act has a separate legal entity having separate existence. The company is a different person altogether from the subscriber to the Memorandum. It further leads to the conclusion that the company having an independent legal entity and independent existence cannot be said to be a Department of the Central Govt. That being so and after considering the composition and structure of the Coal India Ltd, this Court is to answer the question at hand on the basis of the law as it is. Having due regard to what is stated in Kripal Singh (supra) and taking into consideration the far reaching consequences that would be ushered in, it would be in fitness of the circumstances of this case to confine my decision within the parameter of the laws as interpreted by the Supreme Court. Any declaration 'to the effect that the petitioner who is an employee of the Tirap Colliery, North Eastern Coal Fields under the Coal India Ltd is a holder of an 'office of profit' under the Govt of India would upset the laws as recapitulated above for being an addition to the disqualification prescribed under section 10 of the Act of 1951. The golden rule of interpretation that the law has to be read as it is cannot be deviated 'from as such deviation has far reaching consequences. Different provisions of the Memorandum of Association and Article of Association of Coal India Ltd, as discussed herein before, clearly indicate that the petitioner, a Grade-1 Clerk in Tirap Colliery, is not a holder of 'office of profit' under the Central Govt. It is precisely because the Board has the authority to create the posts including the post of Grade I Clerks and not the Govt of India, and the power of appointment and the power to remove or dismiss the holder from this office, is also assigned to the Board and not to the Govt. The remuneration of the petitioner is also paid from the fund of the company and not from the consolidated fund of the Govt of India. The remuneration of the petitioner is also paid from the fund of the company and not from the consolidated fund of the Govt of India. Although Coal India Ltd performs and discharges the functions relating to development of coal mines and its commercial activities and although the Central Govt exercises some amount of control over this company in important decision making process, yet, the totality of the circumstances taken together lead to the inevitable conclusion that the petitioner is not a holder of office under the Central Govt and, as such, does not incur the disqualification neither under section 10 of the Representation of People Act, 1951 nor under the provisions of Article 191 (1) (a) of the Constitution. The tests formulated for this purpose do not stand the scrutiny on the face of the laws interpreted by the Apex Court. It is true that the election of a successful candidate is not to be lightly interfered with, but one of the essentials of the Election law is also to safeguard the purity and sanctity of the election process and to ensure that people do not get elected by flagrant violation of law. The Returning Officer was obviously in error in rejecting the nomination papers submitted by the petitioner by his order dated 18.5.1998 contrary to the provisions of section 100 (1) (c) of the Act of 1951 and the laws discussed above. These issues (issue 2, 3 and 4) are, accordingly, answered in favour of the petitioner. Issue No. 5 :36. This issue was not pressed at the time of hearing Exts 3 and 4 are .the copies of the representations submitted to the Returning Officer and the Chief Election Commissioner. It appears that the said representations were not disposed of by the concerned authorities. But at this stage and for reasons discussed above, non-disposal of the representations would be of no significance. This issue accordingly stands answered. Issue No. 6: 37. Section 100 (1) (c) of the Representation of People Act, 1951 provides that the case where nomination of any candidate have been improperly rejected, the High Court shall declare the election of returned candidate to be void. In the instant case for decisions in issue Nos 2,3 and 4, this Court, therefore, has no option but to declare the election of the respondent Shri Pradyut Bordoloi from No. 124 Margherita Legislative Assembly Constituency as void. In the instant case for decisions in issue Nos 2,3 and 4, this Court, therefore, has no option but to declare the election of the respondent Shri Pradyut Bordoloi from No. 124 Margherita Legislative Assembly Constituency as void. This issue stands answered accordingly. Issue No. 7:38. In the result, the petitioner is entitled to a declaration that the election of the respondent Shri Pradyut Bordoloi from No. 124 Margherita Legislative Constituency is void as the nomination of the petitioner Shri S wapan Roy was improperly rejected. The petition is allowed. The election of the respondent Shri Pradyut Bordoloi is declared void. 39. Copies of the judgment shall be forwarded to the Secretary to the Election Commission and the Secretary to the Assam Legislative Assembly as required under section 103 of the Act of 1951. Registry is to take action immediately.