GURUGOBINDA BASU versus SANKARI PRASAD GHOSAL AND ORS.

Citation: [1964] 4 S.C.R. 311 · Decided: 14-08-1963 · Supreme Court of India · Bench: S.K. DAS · Disposal: Dismissed

Cited by 7 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

• 
•. 
!fS.C.R. 
SUPREME COURT ·REPORTS 
GU:R,UGOBINDA BASU 
.fl. 
·SANKARI PRASAD GHO.SAL and DRS. 
. '3H 
(S. K. DAs, AcTING C.J.; K: S~B'} RAo, RAGHUBAR.DAYAL, 
N. RAJAGOPALA AYYANGAR AND J.-R-MuoHOLKAR, JJ.) 
Elections-Appellant, a chtirtered accountant and a partner 
of a firm of auditors-the firm appointed as auditors of two Gov-
ernment owned companies-Appellant elected to Lok :!apha-Whe-
ther he holds an office of profit under the Union Gov~rnment­
Tests to be a'pplied-Copstitution of India, Art. 1.02(1)(•)-lndian 
Companies Act, 1956 (1 of )956) sS. 224, 227, 619-Represen/ation 
of the People Act, 1950 ( 43 of 1950). s. 116. 
The appellant was a chartered accountan.t· and a partner of a 
firm of auditors. 
This firm acted as auditors 'Of two companies, 
among others, registered under the Indian .. Companies Act, 1956, 
the entirety of the shares of one 6f which are own;d py the Union 
Government and the entirety of the shares of .the other by _the 
West Bengal Government. 
The appellant was declared elected to 
the Lok Sabha. His election was challenged by two vo\ers of the 
constituency by means .... of an election petition. The main ground 
raised was that the appellant was at the relevant Period the holder 
of an office of profit under the Governmeqt of India· as ";'"ell as 
theoState Governmel\t·and hen£he was disqualified from standiµg 
for election under Art. 102(1)(a) 
of the Constitntion. The Elec-
tion Tribunal accepted this contention and declared the election 
of the appellant void. 
The appellant filed an appeal before the 
High Court in which he did not succeed. The present appeal was 
by virtue of a certificate granted by the High Court_ under Art. 
133(1)(c) of the Constitntion. 
· 
It was contended before this Court that on a true construction 
of the expression uunder the Government of India Or the Govern~ 
ment of any State" occur.ring in cl. (a) of Art. 102 (1) df the Consti-
tntion the appellant could not be said' to hold an o)lice of profit under 
the Government of India or the Government of West Bengal. It 
was argued that the various tests, namely, who has ilie power to 
appoint, who has the right to remove, who pays the remuneration, 
what are the functions and Who exercises the control shbuld all 
co.exist and each must .show subordination to th'c 
Governm~nt. 
The fulfilment of some of the tests alQne, woµld nbt be suffi~ient to 
determine that a person holds an offic'e Of profit under the Govern· 
ment. It was contented on beli:ilf 'of the respondent that the! teSts 
were not cumulative and that the court should lobk to the subs-
·tance ~rather than to, the form. 
t: 
Held: 
(i) For holding an •office of profit under the Government a 
person need nbt be in the service of the Goverrµnent and there 
:i.eed not be any relationship of niaster· ahd sCrvant betWCen them. 
· . 
1963 
dug~si...1.f~, J 
_____ .. 
1963 
...... 
--, 
~1J!,K<1himf9 
~·,· ... Bas• 
v. 
Sankari Prasad 
GhtYsal and 
Others 
S. K. Das 
Acg. C. /. 
312 
·SUPREME COURT REP.ORTS 
[1964] 
(ii) The examination of ~e various 
p~qvisions of the Com-
panies Act, 1956 (ss. 224, 227, 618 and 619) showed that so far as 
the two companies in question Were concerned 'the appellant \Vas 
appointe~ as .an aq.dit?r by\ t~ir;~Ceptraf Government, :vas removable 
by the Contral Gov~rnment, that the Comptroller and the Auditor 
Gen~ral of India exercised full contrcil over him and that his remu-
neration was fixed ·by the Central 'Government .under sub0s. (S) of 
s. 224 of the Companies Act though it was paid by the companies 
concerned. 
(iii) Where the several elemfints, the power to appoint, 
the 
poWer to dismiss, the power to control and give.directions as to the 
mariner in which the dut_\es of the office are to be performed and 
thC .power to di:termine the q~estion of remuneration are all pre-
sent in a given c:isC then thC officer in question holds the office 
under the authority so empowered. 
It is not necessary that all 
these must co-exis~ nor is the fact that the source from which the re-
muneration is paid is not from public revenue decisive. 
(iv) The appellant held an office of profit under the Govern-
ment of India witl)in the meaning of Art. 102(1)(a) of the Cons-
titution of Indi::t and as suCh he was disqualified for being 
chosen as a member of Pa,rliaipent. 
Maulana Abdul Shakur v. 
Rikhab Chand, 
[1958] 
S.C.R. 
387, distinguished. 
, .Rarriappa v. "Sangapp,,, .[1959] S. C. )l. 1167, referred to. 
CIVIL APPEtL

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