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TMI Blog1999 (4) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... is appointment or removal exercised by the Central Government. Control over his work is exercised not by the Government, but by the Steel Authority of India Ltd. The respondents cannot, therefore, be considered as holding an office of profit under the Central Government. - CIVIL APPEAL NO. 7538 OF 1997 WITH C. A. NO. 7644 OF 1997 - - - Dated:- 1-4-1999 - SUJATA V. MANOHAR AND K. VENKATASWAMI, JJ. R. Sundravardhan, Prashant Kumar, Vijay Kumar, B.K. Sharma, Kumar Parimal and A.V. Rao for the Appellant. S.K. Verma, M.K. Choudhary and A Sharan for the Respondent. JUDGMENT Mrs. Sujata V. Manohar, J. These appeals have been filed under section 116A of the Representation of the People Act, 1951. In January, 1995, the Election Commission of India issued a notification for election, inter alia , to the Legislative Assembly of the State of Bihar. The last date for filing nomination papers for Bokaro Assembly Constituency No. 279 was January 23, 1995. The appellant and the respondents in the two appeals filed their nomination papers from the Bokaro Assembly Constituency. Scrutiny of nomination papers took place on January 24, 1995. The nominations of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a non-executive post. Ashok Kumar Srivastava who was working as a meter reader was working at level L-VII. Both these posts are non-executive posts. Section 10 disqualifies only the managing agent, secretary or manager of any company, in the capital of which the appropriate Government has not less than 25 per cent. share holding. Obviously, neither of them is either secretary or manager. A managing agent is a person who has been entrusted with the management of the whole or substantially the whole of the affairs of a company. Managing agencies have been abolished with effect from April 3, 1970, by reason of the Companies Act being amended by Act XVII of 1969. The Companies Act contains the following definition of a managing agent under section 2(25) of the Companies Act, 1956 : "2. (25) 'managing agent' means any individual, firm or body corporate entitled, subject to the provisions of this Act, to the management of the whole, or substantially the whole, of the affairs of a company by virtue of an agreement with the company, or by virtue of its memorandum or articles of association, and includes any individual, firm or body corporate occupying the position of a managing agent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r will depend on the facts of each case. But where several elements are present in a given case then the officer in question holds the office under the authority so empowered. This court pointed out that the Constitution itself makes a distinction between "the holder of an office of profit under the Government" and "the holder of a post or service under the Government" (see articles 309 and 314). The Constitution has also made a distinction between "the holder of an office of profit under the Government" and "the holder of an office of profit under a local or other authority subject to the control of the Government" (see articles 58(2) and 66(4)). In Guru Gobinda Basu v. Sankari Prasad Ghosal [1964] 4 SCR 311 ; AIR 1964 SC 254, the appellant was a chartered accountant. He was a partner of a firm of auditors. This firm acted as auditors of two companies amongst others. One of the companies was wholly owned by the Union of India and the second company was wholly owned by the West Bengal Government. The court was required to consider whether the chartered accountant could be said to hold an office of profit under the Government. In this context, this court said that an office of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich deals with the holding of an office of profit in a company in the capital of which the Government has not less than 25 per cent. shares. Otherwise, this section will be redundant. Also, Parliament when passing the Act did not consider it necessary to disqualify every person holding an office of profit under a Government company. It limited the disqualification to persons holding the office of managing agent, manager or secretary of such a company. Therefore, the fact that the entire share capital in a company is owned by the Government does not obliterate the distinction between article 191(1)( a ) of the Constitution and section 10 of the Representation of the People Act, 1951. However, in the later case of Biharilal Dobray v. Roshan Lal Dobray [1984] 1 SCC 551, 569 ; AIR 1984 SC 385, this court said that even though the incorporation of a body corporate may suggest that the statute intended it to be a statutory corporation independent of the Government, it is not conclusive on the question whether it is really so independent. Sometimes the form may be that of a body corporate independent of the Government. But in substance it may be just an alter ego of the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n constitution. The project officer and not the Government had the power to appoint and remove teachers. The whole scheme was set up for the welfare of tribals and it was entrusted to ITDA, an authority by itself, subject to the control of the Government in certain respects just like any other local authority. Therefore, taking a practical view it could not be said that the teacher was holding an office of profit under the Government. We need not examine more authorities, since the principles for applying article 191(1)( a ) appear to be well settled. The appellant, however, relied upon State of Gujarat v. Raman Lal Keshav Lal Soni [1983] 2 SCC 33, which was a decision of a Constitution Bench of this court. This decision was not concerned with article 191(1)( a ). This court, however, was required to decide whether ex-municipal employees who were allotted to the Panchayat Service of the State Government had the status of Government servants. The court examined the provisions of the Gujarat Panchayats Act, 1961, and held that the panchayat service constituted under section 203 of the Gujarat Panchayats Act is a civil service of the State and the members of the service are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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