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The Gazette of India

EXTRAORDINARY

PART II—Section 3—Sub-section (ii)

PUBLISHED BY AUTHORITY

No. 399] NEW DELHI, WEDNESDAY, SEPTEMBER 8, 1982/BHADRA 17, 1904 Separate Paging Is given to this part in order that it may be filed as a separate compilation

(i)

688 GI/82—1

MINISTRY OF LAW, JUSTICE & COMPANY AFT AIRS

(Legislative Department)

NOTIFICATION

New Delhi, the 8th September, 1982

S.G. 654(E).—The lollowing Order made by the President

is published for general information ;—

ORDER

Whereas a question hai arisen before the President as a icsnlt of a joint petition dated the 20th November, 1981, filed by S/Shri C. T. Dhandapani, MR, Satyendran, M.P. and others as to whether Shri R.- Mohanarangam, a sitting member of the Council of States has become subject to the disqualification mentioned in article 102(l)(a) of the Cons- titution by virtue of his holding the office of the Special Representative of the Government of Tamil Nadu at New Delhi:

And whereiis, the President has sought the opinion of the Heclion Commission under article 103(2) of the Constitution with reference to the said question ;

And whereas, the Flection Commission has given its opinion (vide Annrxurc) that the said Shri R. Mohanarangam has become subject to the disqualification for being n member of the Council of States under article 102(1)(a) by virtue of his holding the office of the Special Representative of the Governor,! of Tamil MaOn at New Delhi which is for the purpose of the said article to be treated as an 'office of profit';

Now, Therefore, I, Zail Singh, President of India, in exer- cise of the powers conferred on me under article 103 of the Constitution do hereby decide, in accordance with the opinion of the Election Commission that the said Shri R. Mtohanaran- gam has become subject to ,the disqualification mentioned in article 102(1) (a) of the Constitution for being a member of the Council of States.

Z4IL SINGH, Rashtrapati Bhavan,

the 27th August, 1981 the Government of Tamil Nadu issued G.O.Ms. No. 1664, Public (Special-A) which purported to contain the terms and conditions, applicable to Shri R. Mohana- rangam who has been appointed as Special Representative under the order of the Government of Tamil Nadu dated 10th August, 1981. The order of the 27th August, 1981 states that Shri Mohanarangam "will not be entitled to any hono- rarium, or allowance or any other pecuniary benefit what- soever, as holder of the post of Special Representative".

President of India

New Delhi,

the 8th September, 1982.

BEFORE THE ELECTION COMMISSION OF INDIA

Reference Case No. 7 of 1981

("Reference from the President of India under article

103(2) of the Constitution of India).

In Re : Disqualification of Shri R. Mohanarangam, a sitting

member of the Council of States.

OPINION

This reference under article 103 of the Constitution raises the question as to whether Shri R. Mohanarangam, a sitting member of the Rajya Sabha, has become subject to the disqualification mentioned in article 102(1) (a) of the Constitution by virtue of his holding the position of the Special Representative of the Government of Tamil Nadu at New Delhi.

2. The question before the President arose as a result of the joint petition dated 20-11-81 filed by Sarvashri (1) C. T. Dhandapani, M.P. (2) Satyendran, M.P. (3) Dr. A. Kalanidhi, M.P. (4) L. Ganesan, M.P. (5) K. Mayathevar, M.P. and (6) N. V. N. Somu, (7) P. Ponnurangam, (8) Paummal Nallathambi, (9) N. Ramachandran. (10) S Balan, (11) Durai Murugan, (12) S. Ramalingam, (13) D. Rajaratnam., and (14) D. Purushothaman, all M.L.A s of Tamil Nadu.

3. The relevant facts are briefly as under :—

On 11th August, 1980, by Order No. G.O.Ms. 18.73 the Government of Tamil Nadu accorded sanction for the crea- tion of a temporary post of Special Representative for the Government of Tamil Nadu at New Delhi for a oeriod of three years with effect from the date on which the appointee took charge or till the reed for it ceased, -whichever was earlier. The holder of the post was allowed p consolidated salary of Rs. 2.000 per month. Shri Pavalar M. Muthu- swamv was appointed as the Special Representative for a 'period of three vears. Hisi appointment was made termin- able one month's notice on either sic¹?. ~Re was a'lowed the status of a Minister of th= Tamil Nadu Government. The Government Order referred to above also provided fer certain privileges like free funished accommodation and boarding at Tamil Nadn Howe, we of car as annlicabie to a Minister, TA & DA etc.

4. By G.O.Mt 1551 dated 10th Aumi"t, 1981, fb<> Govern- ment of Tamil Nadu accepted the resJKriaiop of Shri M. \futhus-"amy as Special Representative nf GovernT'ent of Tamil Nadu at New Delhi with effect from the dpte of relief.

6. The petition raising the question of disqualification of Shri Mohanarangam was filed before the President under article 103 of the Constitution on the 20th of November, 1981.

7. The Commission held hearings on 19-7-82, 31-7-82 and 11th August, 1982 and arguments were heard through coun- sel on behalf of both the parties.

8. ISSUES :

The following issues were framed including the first as a

preliminary issue :—

(1) Is the present post of Special Representative of Tamil Nadu Government an 'office' within the meaning of article 102(1) of the Constitution?

(2) Is Shri R. Mohanarangam, the Special Representa- tive of Government of Tamil Nadi} in receipt of advantages, benefits or gains, not ordinarily available to an M.P.?

(3) If so, does it amount to accepting an office of profit under the Government of Tamil Nadu by Shri R. Mohanarangam with effect from 27th August, 1981 ?

9. FINDINGS:

Issue 1 : The expression 'office of profit' used in articles 102(1)(a) and 191(1)(a) of the Constitution has not been defined either in the Constitution or in the Representation of the People Act, 1951. Therefore, whenever a question of disqualification based on this ground is raised, it becomes necessary to examine each case on its merits. The three elements involved in regard to this particular disqualification are : (i) whether the position held by a member is an 'Office'- (u) jf so, whether it is an 'office of profit' ; and (iii) if so, whether it is an office under the Government of India or <*e Government of a ny S t ⁹ te within the moaning of article 102(lKa) or, as the case may be, article 191(I)(a) of the Constitution.

tcady made ansA'ea but arc admittedly ticklish. A close examination of t'O'.ii the fact., and the legal and the Consti- tutiojj.t¹ piovisions Dicoi.ies ueVes^iry.

12. li U is held to be an 'office', then there is no doubt that if ls an office undei the Government of Tamil N;du J.S the tipeufic f-ruti of cfCution of the posi has been issued by that Govcrni'icnt

13. Shri S. S. Ray, Senior Counsel, appearing on behalf of Shu Mohanarangaia. wh"o raised the above preliminaiy issue, urged that the terms and conditions applicable to Shri Mohanarangam as Spec 9

29. As held by the Supreme Court, it is not necessary that it should be possible to predicate of a bolder of an office, of profit that he was bound to get a certain amount of profit irrespective of tho duties discharged by him.

23. It has >also been held that in order to be an office of profit, it was not necessary that its holder should make a profit out of it. It is sufficient if it is shown that the office is one which enables him to make a profit. Having regard to the object with which the constitutional provisions have been made, the expression 'office of profit¹ would mean an office capable of yielding a profit or from which a man might reasonably be expected to make a profit. The actual mak- ing of profit is not necessary, 'Profit' means gain or any material benefit. The amount of such profit is also immaterial. (Deo Rao Laxman Vs. Keshav Laxman—13 ELR 343-344- Bombay High Court). This particular case also rcfened to in some detail to the earlier English cases.

24. Before examining the facts of the case of Shri Mohanrangam in the light of the general principles discussed above. It would be relevant and important to look into the objects behind the provisions of articles 102 and 191 im- posing different disqualifications for membership of Parlia- ment and State Legislatures.

iTV^Xw °^ ^^P^on) Act! 1959. (Central Act 10 of 1959) Pr* s.jrnifiW. In these provisions the emphnsw * OB the office and nnt on the particular person for the time bffma holding that oflfce

W THJrOfXi,,*".. , , ^ L * i A *. 1 ^

(3) occupancy register for use of accommodation in

Tamil Nadu House ; and

(4) the bill books relating to these items and cash re-

ceipts.

35. The entries* made in these records of Tamil Nadu House aL New Delhi leferred to above are quite revealing, All the entries relating to trunk calls in the telephone re- gister arc bhown us 'official'. Strangely, the payment hus been made by Shri Mohanrang^m for some of thj calls falling in that category also. After ho took over on the 27th August, 1981, according to the concerned register, he has made only two calls for which charges amounted to Ra. 80, When the payment was effected in December, 1981, the payment was made for Rs. 200 which included charges for certain culls made on the 20th August, 1981, when Shri Mohannmgam had not even entered office. This shows the haste with which the bills were dr^wn and payments made after the can: was instituted before the President under article 103 of the Constitution.

36. Similaily, fheie are many entries in the log books foi the use of stuff cars where the Private and Official journeys are shown together. Many of the entries therein which are shown us 'pnvute' seem to have been written later. Unusually, the brewk up of mileages for official and piivate journey* have been shown in the column relating to the purpose of visit. The writings are in different inks. Some of the entries show repeated journeys to Parliament House, South Avenue, Railway Stoiion, Aerodrome etc. It could not obviously bo the places vniled normally for official purposes. It is hard to believe that all the visits to Parliament House were in connection with his official duty as Special Rcpresenttaive, naivety fixing appointment of Stale Ministers with Central Ministers, ai claimed by him, and not for attending the Parliament sc^ion ;is a Member of Rajya Sabhd# Indeed, the Parliament met for the Monsoon iesiion fiom 17th August, 1981 to IKih September, 1981 and/Winter session from 23rd November, 1981 to 24th Dcccmiir. 1981.

37. There are entries in the log books foi staff cars whith arc shown pnrtly official and partly private. For instance, there is an entry against 16th September, 1981 in the Log Book for Car No. DHE 25 showing the places visited as Tamil Nadu Hcise—Tailiament House—Tamil Nadu Hoire. It cannot b^ both official and private .it one and the same time and to one and the lame place as shown in the register. Tt could be either 'official' or 'private', Similarly, though moat of the entries thow both JS official ond private, the mileage for official visits a^e shown invariably more than private visits which airmot re-asonab'y be taken as correct having regard to the distance between the two places of travel as shown m the log book.

33. Similarly, in the occupancy register relating to the month of August/September 1931, while all the antries are serially numbered, there is an entry between 1489 and 1490 relating to Shri Mohanrungam without any serial number. It ia reasonable to conclude that this entry has been made only afterwards. Though the endorsement as 'State Guest' has been made against many entries relating 10 Shri Mohan ran gam, he has paid the amount only in December, 1981.

39. In the absence of any valid explanation to the contrary, it cannot be said that the entries have been made contem- poraneously. On the other hand, from the very be'girming, obviously the intention was to allow Shri Mohanrangam the benefits of the use of car, telephone, occupation of accommo- dation in Tamil Nadu House at New Delhi free of cost.

40. The payment effected by Shri Mobanrangam on the basis cf bills drawn on him was to the extent of about Rs. 7000 It is hard to believe that an elected MP would, for ills private purposes, make use of these facilities from outside source and make payment of such a large sum knowing fully well fnm the beginning that he would not be entitled to those facilities as a Member of Parliament or at the Govern- ment expense.

41. Whatever may be the explanation given by Shri Ruy, it is clear that the entries relating to Shri Mohanrangam in. the records mentioned at (1) to (3) above show that he was being considered by the Government authorities at Tamil Nadu House as a State Guest entitling him to; the use, free of cost, various facilities by virtue of his holding the office of the Special Representative. For nearly four months this position continued. For the first time, the question of pay- ment by Shri Mohanrangam was taken up only m Ihe end of November 1981 i.e., after the present petition was presen- ted lo the President.

II is difficult (o believe that in respect of nil the entries there was unintentional administration lapse of treating him as State Guest' and not drawing up the bills lor payment then and there.

42. The narration of the above facts undoubtedly leads to the conclusion that in construing the terms and conditions as laid down in Government's Order dated the 27th Augiut, 1981 both the parties i.e., the Government of Tamil Nadu and its functionaries at New Delhi on the one hand and Shri Mohanrengatn on the other hand were tie'tint; some of the privileges like use of staff car, occupation of Tamil Nadu House, use of telephone, as not being covered under those terms and conditions, but falling outside the scope of that order. By enjoying these benefits till at least December 1981, the office of the Special Representative is to be treated as capable of yielding a profit and that the holder might be reasonably expected to make profit. Further, these faci- lities gave the holder Shri Mohanrangam a status symbol and prestige which is not ordinarily enjoyed by Member of Parliament as such.

43. It it claimed on behalf of Shri Mohanranyim that his duties were to fix appointments with the Central Ministers for Ministers of Tamil Nadu. Normally, it is the duty of the Private Secretaries and Personal Assistants to fix such appointments which con be done on the telephone ;nstcad of making repeated visits mirig the staff car. There is also a Spec'i 1 Comtni'sion'r for Tamil N-'Jn who i_ norm... \j asked to attend to the duties of expediting the decisions of the Central Government in relation to the proposals coming from Tamil Nadu. It is, not possible to resist un inferen e that i.i r ' c of availability of these administrative agencies. Shri JVlvih^raiifinm hss been rntimted Viifh these il>;rrs

44. For the reasons given above, it is clear that even if

for holding an office of profit it is essential that the actual holder ^ho ilj enjoy pecuniary or material tpin, the .lbove frets would establish reasonably that Shri Mohanrangam was (jethYg pscuniory and material benefits other than thoiei covered under the terms and conditions of 27th August, 1981. fn an\ events, ,s already stated, this particular oidcr was construed for "ill intents and purposes by both the Govern- mert of Tamil Nadu nd Shri Mohanrangam as, not pmhibil- ing the pecuniary Ki.dits enjeyeri by him till nt Jeact early December, 1981, when for the flrit time the payment has been made. In this context, the Constitution.il mondits should be zenlously guarded afiainst "ny abwe. Going by the spirit of the Constitutional provisions anj the judicial pronouncements, it is the moral duty of the Commission • to resist any attempt to circumvent the disabling provisions in the Constitution by creating artificial trappings through an executive fiat.

45. In the above circumstances, these two issues should

also be answered in the affirmative.

46. In the ultimate analysis, I am of the opinion and hereby hold that Shri Mohanrangam has become subi-et to the disqualification for being a Member of Rajya Stebha under article 102d)(a) by virtue of his holding the office of th© Spcrial representative for Tamil Nadu Government at New Delhi whifh is not the purpose of the said article to be treated as ;-n 'office of profit*. T arcordinglv tender mv opinion to the nbove effect to the President under article 103(2) of the Constitution.

New Delhi, August 31. 1982.

R. K. TRTVEDI, Chief Election Commissioner

India

fR No. 7(21)/82-W-7r

R. V. S. PERI SASTRT, Secy.

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