- (1.) Karam Singh, an electorate of Hoshiarpur, has challenged election of Shri Kamal Chaudhary, Member of Parliament, respondent in this election petition, on the allegations that the respondent committed corrupt practices as, at his instance, Shri S. S. Ray, Governor of Punjab, convened a meeting of Congress leaders of district Hoshiarpur through the assistance of Deputy Commissioners of Hoshiarpur and Ropar and thus he obtained and procured his help in furtherance of his election. In the election meeting held on 14/11/1989, Shri S. S. Ray called upon the persons present to support the respondent in the election. It is also alleged that Shri S. S. Ray, while acting as agent of the respondent, also committed corrupt practice in the aforesaid manner. It was further alleged that Shri S. S. Ray and the two Deputy Commissioners were Gazetted Officers. The petition having been contested by the respondent, the following two preliminary issues were framed, which are being disposed of by this order after hearing arguments of counsel for the parties as no evidence was required to be produced on these issues :- (i) Whether the petition does not disclose any cause of action and is liable to be dismissed on that ground? OPD (ii) Whether office of the Governor is covered under Section 123(7) of the Representation of the People Act and if so to what effect? DPP
(2.) The objection raised in the written statement was that office of the Governor is not in the service of the Government and further the Governor is not a Gazetted Officer and thus any action of the Governor, as is alleged in the election petition, will not amount to corrupt practice as defined, under Section 123(7) of the Representation of the People Act.
(3.) Chapter II of Part VI of the Constitution refers to the office of the Governor. Article 153 provides for a Governor for each State and under Art.154, the executive power of the State is to vest in the Governor. The Governor of the State is to be appointed by the President by warrant under his hand and seal as provided under Article155. The Governor is to hold office during the pleasure of the President as mentioned in Art.156. Article 52 of the Constitution provides for the office of the President of India and under Art.53, the executive power of the Union is to vest in the President and is to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Section 3(8) of the General Clauses Act defines 'Central Government'. Sub-clause (b) specifically mentions that 'Central Government' shall in relation to anything done or to be done after the commencement of the Constitution means the President. Section 3(60) of the General Clauses Act defines 'State Government' and after the commencement of the Constitution in respect of anything done in the State Government in Part 'A' States, the Government would be the Governor. The emoluments, allowances and privileges of the Governor of the State are governed by the provisions of the Governors (Emoluments, Allowances and Privileges) Act, 1982. From the perusal of the provisions of the Constitution and the Acts aforesaid, it is abundantly clear that office of the Governor in the State is under the Central Government i.e. the President. The appointment and the tenure of office is under the direct control of the President. The emoluments and other service conditions are governed by an Act of the Parliament. The office is established under the Constitution itself. The holder of that office would be an officer designated as Governor in the Constitution. No manner of doubt is left from the provisions aforesaid to come to a conclusion that Governor is serving under the Central Government i.e. the President. The following observations of the Supreme Court in Guru Cobinda Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254, may be noticed with advantage in this context (at pp. 258-259 of AIR) :- "We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor General who himself is undoubtedly holder of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure of office and removability therefrom. Under Article 148 of the Constitution the Comptroller and Auditor General of india is appointed by the President and he can be removed from office in like manner and on the like ground as a Judge of the Supreme Court. The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and until they are so determined shall be as specified in the Second Schedule to the Constitution. xx xx xx xx "From the aforesaid provisions it appears to us that the Comptroller and Auditor-General is himself a holder of an office of profit under the Government of India, being appointed by the President and his administrative powers are such as may be prescribed by rules made by the President, subject to the provisions of the Constitution and of any law made by Parliament. Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government Companies, the Durgapur Projects Ltd. and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, he is removable from office by the Government of India; he performs functions for two Government Companies under the Control of the Comptroller and Auditor-General who himself is appointed by the President and whose administrative powers may be controlleled by rules made by the President." In that case, Auditors of the Hindustan Steel Ltd. and the Durgapur Projects Ltd., the Government Companies within the meaning of Section 2(18) read with Section 617 of the Companies Act to the extent of 100 per cent of shares, were appointed by the Central Government. The full control was of the Comptroller and Auditor General of India. The observations made relating to the office of the Comptroller and Auditor General would also apply to the office of Governor. Thus for the purposes of Section 123(7) of the Representation of the People Act, the Governor would be a person in the service of the Government.;