Full Judgment
Shivaraj Patil, J.
1. Briefly stated the facts leading to the Writ Petition are:
The petitioner was elected as a Member of the Karnataka Legislative Assembly from Basavanagudi Constituency, Bangalore City on 27th November, 1989. He was offered the post of Deputy Chairman of the Planning Commission in the rank of a Cabinet Minister. Since he was aware that acceptance of an 'office of profit' under the Government of India would be a disqualification for being a Member of the Legislative Assembly, he was not inclined to accept the offer. Accordingly, he conveyed his views to Government of India. When consulted the Law Ministry advised the Government of India that in view of the provisions of Karnataka Legislature (Prevention of Disqualification) Act, 1956 (for short the 'Act') there would be no bar on the petitioner holding the post of the Deputy Chairman of the Planning Commission and to continue as Member in the Karnataka Legislative Assembly so long as he does not receive any remuneration other than the compensatory allowance for holding the post of Deputy Chairman of the Planning Commission. Thereafter, the petitioner accepted the post of the Deputy Chairman of the Planning Commission. In the order of appointment of the petitioner to the said post, it is specifically stated that the petitioner would not draw any salary; he would be entitled only to the travelling allowance/daily allowance; conveyance allowance or a chauffer- driven car and house rent allowance or rent free furnished accommodation including free supply of electricity and water. Having accepted the said appointment on the terms and conditions mentioned in the appointment order -Annexure-A, the petitioner held the said post till 6-7-1990, on which date he tendered his resignation to the post of Deputy Chairman of the Planning Commission. In the meanwhile, he continued as a Member of the Legislative Assembly.
The third respondent filed a Petition dated 30-12-1989 under Article 192 of the Constitution of India to His Excellency the Governor of Karnataka contending that the post of Deputy Chairman of the Planning Commission has the status of a Cabinet Minister of Union of India; the incumbent of the said post is entitled to receive all benefits of a Cabinet Minister; therefore the said office was capable of yielding the pecuniary gain and it is an office of profit attracting Article 191(1)(a) of the Constitution of India; hence action is to be taken as the petitioner has incurred disqualification under the said Article. The Governor of Karnataka referred the complaint of the third respondent under Article 192(2) of the Constitution to the second respondent -Chief Election Commission to obtain opinion on the question as to disqualification of the petitioner. The petitioner received a notice from the second respondent to answer the complaint. He replied to the said notice raising various objections. He has specifically stated in the reply that so long as the incumbent of the office of the Deputy Chairman of the Planning Commission did not draw any salary other than the compensatory allowance he will not incur disqualification under Article 191(1)(a) of the Constitution. He has specifically stated that as per the terms of the appointment order - Annexure A, he could draw no salary; therefore there was no question of the petitioner holding office of profit and that the petitioner as a matter of fact also did not draw any salary. It was further pointed out that in view of the provisions of the Act the office held by the petitioner as Deputy Chairman of the Planning Commission on the terms mentioned did not attract disqualification under Article 191(1)(a) of the Constitution.
Since the second respondent did not proceed with the complaint for some time the third respondent filed W.P.No. 17666/90 before this Court seeking a Writ of Mandamus to the second respondent to furnish its opinion. In the said Writ Petition the petitioner was the second respondent. The learned Single Judge rejected the Writ Petition by his order dated 29-8-1990 holding that the provisions of Article 191 prima facie were not attracted to the facts of the case in view of the fact that the petitioner had ceased to be the Deputy Chairman of the Planning Commission. Aggrieved by the said order of the learned Single Judge, the third respondent took up the matter in W.A.No. 1963/90. The Division Bench of this Court disposed of the said Writ Appeal on 13-3-1991 directing the second respondent to dispose of the matter expeditiously and at the same time set aside the order of the learned Single Judge without hearing the petitioner as he was deleted from the array of the respondents in the said Writ Appeal at the instance of the third respondent. Thereafter the second respondent having heard the parties and their Counsel tendered its opinion to the Governor of Karnataka under Article 192(2) of the Constitution in Reference Case No. 1790 dated 24-7-1991. On the basis of the said opinion rendered by the second respondent the Governor of Karnataka by his order dated 6th August 1991 -Annexure-J has disqualified the petitioner from the Membership of the Karnataka Legislative Assembly with effect from 5-12-1989. Hence, this Writ Petition is filed seeking a Writ in the nature of Certiorari quashing the order Annexure-J dated 6.8-1991.
2. Respondent No. 1 is represented by the learned Advocate General. Respondent No. 2 though served has remained unrepresented. The respondent No. 3 having entered appearance has filed the Statement of Objections stating that the petitioner cannot maintain the Writ Petition and he is not entitled for any relief. The order passed by the Governor of Karnataka cannot be called in question in view of the embargo placed under Article 361 of the Constitution. In the Writ Petition the Governor is not made party because of the Constitutional prohibition. The impugned order was passed by the Governor in his exclusive power without the aid and advise of the State Cabinet or the State Government. As such the State of Karnataka cannot have any say in the matter. Hence, the impugned order is not justiciable and the Writ Petition is not at all maintainable.
It is further contended in the Statement of Objections that after the impugned order was passed the petitioner convened a Press Conference, attributed mala fides to respondents 1 and 2 and described the order impugned as absurd, vindictive, motivated, etc. The statement of the petitioner received wide publicity through the medias. Further the order passed by the Governor of any State or the President of India is not open to challenge under Article 226 of the Constitution of India except on the grounds that the order was passed:
(a) on collateral considerations;
(b) in contravention of the rules of natural justice;
(c) on no evidence; or
(d) on the advise of the executive or other authority, who was not entitled to advise the Governor in the matter of exercising the quasi-judicial functions.
In this Writ Petition the petitioner has not raised any of these grounds, but only states that the order of disqualification is bad in law because he had not received any salary as the Deputy Chairman of the Planning Commission. The petitioner was aware that the office of the Deputy Chairman of the Planning Commission was an 'office of profit' and therefore an arrangement was made that he should not receive the salary attached to the office. He has adopted a clever mechanism to avoid disqualification. The opinion of the Law Ministry that in view of the provisions of the Act there would be no bar to the petitioner holding the office of the Deputy Chairman of the Planning Commission does not help the petitioner at all. Thus, respondent No. 3 prayed for dismissal of the Writ Petition.
3. Sri Santhosh Hegde, learned Counsel for the petitioner, contended that:
(1) As per the appointment order - Annexure-A under which the petitioner was appointed as the Deputy Chairman of Planning Commission, he was not entitled to draw salary except the allowances mentioned therein. Hence, the second respondent ought to have held that the petitioner was not holding any 'office of profit'.
(2) The second respondent has failed to see that the provisions of the Act clearly protected the Membership of the petitioner in the Karnataka Legislative Assembly despite the fact that the petitioner held the post of Deputy Chairman of the Planning Commission of India. Further, any disqualification, if incurred by the petitioner, the same was removed under Section 3 of the Act.
(3) The impugned order - Annexure-J was passed in violation of the principles of natural justice inasmuch as the second respondent has relied on certain office files, contents of which were not disclosed either to the petitioner or to his Counsel. Even the impugned order - Annexure-J was passed without giving any opportunity to the petitioner after receiving opinion from the second respondent.
(4) The Writ Petition is maintainable on the facts of the present case. In view of Article 361 of the Constitution Governor could not have been impleaded in the Writ Petition. The impugned order - Annexure-J although was passed by the Governor of Karnataka it was passed according to the opinion- Annexure-H given by the second respondent - the Election Commission of India, Under Article 192(2) of the Constitution the order has to be passed according to the opinion given by the Election Commission. There was no choice or discretion left to the Governor under Article 192(2) of the Constitution. Since the Governor has acted according to the opinion given by the second respondent, which opinion was effective and material, the petitioner has impleaded the Election Commission as the second respondent besides State of Karnataka represented by the Chief Secretary, Thus, the Writ Petition is perfectly maintainable.
The learned Counsel has cited few Decisions in support of his submissions, to which I will refer to them at appropriate stage.
4. Sri. V.H. Ron, learned Counsel for respondent No. 3, urged that the Writ Petition itself is not maintainable against the action of the Governor in passing the impugned order - Annexure-J, as the action was not the one taken on the aid and advise of Council of Ministers under Article 163 of the Constitution of India. The opinion of the Election Commission has merged with the impugned order -Annexure-J. Hence, the same cannot be questioned in view of Article 361 of the Constitution. The petitioner cannot challenge the action of the Governor as he cannot implead the Governor. The learned Counsel for respondent No. 3 has cited few Decisions in support of his submissions.
5. Sri. A.K. Subbaiah, the third respondent at the subsequent date of hearing when Sri. V.H. Ron, learned Counsel was not able to come to the Court, supplemented the arguments contending that:
(1) the office of Deputy Chairman, Planning Commission carries pay scales. Even though the petitioner did not get salary, the fact that he enjoyed a Cabinet rank and got various allowances including well furnished free accommodation, chauffer-driven car and could travel any where in India having the facility of State Guest, are sufficient to hold that the petitioner had held the office of profit as Deputy Chairman of Planning Commission.
(2) The Planning Commission is not a Committee within the meaning of Section 2A of the Act. Even otherwise the office of Chairman or a Member of a Committee shall disqualify the holder of such office if he is in receipt of or entitled to any remuneration other than the compensatory allowance. In the instant case the office of the Deputy Chairman of the Planning Commission was entitled to remuneration. It was immaterial whether the petitioner received salary or not. Hence, the Act did not remove the disqualification incurred by the petitioner.
He also cited Decisions in support of his arguments,
6. Sri. P.P. Muthanna, learned Advocate General, submitted that the Governor has acted only in accordance with the opinion of the Election Commission.
7. I have carefully considered the submissions made by the learned Counsel appearing for the parties.
8. In view of the objections by respondent No. 3 as to the very maintainability of the Writ Petition, I will take up that point first, for consideration.
9. It was contended that the opinion of the Election Commission merged with the impugned order - Annexure-J; the Governor has passed the impugned order without the aid and advise of Council of Ministers under Article 163 of the Constitution; the Chief Secretary of the State of Karnataka cannot represent or defend the Governor in a case like this, as such- the Governor cannot be impleaded as respondent in view of the bar contained under Article 361 of the Constitution and in his absence in the proceedings, no relief can be granted to the petitioner.
10. Under Article 192 of the Constitution whenever a question arises whether a Member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in Clause (1) of Article 191, the Governor shall obtain opinion of the Election Commission on such question and shall act according to such opinion under Article 192(2) of the Constitution. In this regard the Governor acts in the exercise of all Constitutional authority and in the discharge of his Constitutional obligation in referring the question as to the disqualification and obtaining the opinion of the Election Commission. Article 192 does not leave any discretion or choice to the Governor. He has to refer a question as to the disqualification to the Election Commission for its opinion and shall act according to such opinion. In effect and substance it is the opinion of the Election Commission that decides the fate of a Member of the Legislature of a State. Although the impugned order - Annexure-J is made by the Governor, it is only a formal order. The Election Commission is very much before the Court as the second respondent in this Petition. Further, there is no much controversy on facts and they are not debated before me.
11. In the case of BRUNDABAN NAYAK v. ELECTION COMMISSION OF INDIA AND ANR., : [1965]3SCR53 the scheme of Article 192 came up for consideration. In the said Decision also the Governor was not party to the proceedings. Para-16 of the said Decision reads:
'We are satisfied that this contention also is not well-founded. The scheme of Article 192 (1) and (2) is absolutely clear. The decision on the question raised under Article 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces this decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, 'he shall act according to such opinion'. In regard to complaints made against the election of members to the Legislative Assembly, the jurisdiction to decide such complaints is left with Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor, If this scheme of Article 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvad's contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him, to file his statement and produce his evidence in support thereof'.
This view of the Supreme Court found favour in the later case - THE ELECTION COMMISSION OF INDIA v. N.G. RANGA AND ORS., : [1979]1SCR210 . In the said case also the President of India was not before the Court.
In : (1974)IILLJ465SC , Samsher Singh v. State of Punjab and Anr., in paragraph 149, the Supreme Court has stated:
'The constitutional mechanism is that the President (Governor) shall refer the question of disqualification of a member for the opinion of the Election Commission and 'shall act according to such opinion', so that whether the right to decide is formally in the President or is to be exercised by the aid and advice of his Ministers, it is immaterial, since the actual adjudication has always to be made by the Election Commission which binds the Government and the President merely appends his signature to the order in regard to such decision'.
The Full Bench of Madras High Court in K.S. HAJA SHAREFF v. HIS EXCELLENCY THE GOVERNOR OF TAMIL NADU, MADRAS AND ORS., has ruled that as against a Decision pronounced under Article 192(1), a Writ Petition could be entertained under Article 226 by a High Court, although the scope of judicial review is limited in its extent to the situations mentioned in para-14 of the said Decision.
12. Having regard to the scheme as contained in Articles 191 and 192 of the Constitution, the decision on the question raised under Article 192(1) undoubtedly has to be pronounced by the Governor, but that decision has to be essentially in accordance with the opinion of the Election Commission. A complaint in respect of a disqualification subsequently incurred by a Member of a Legislature in substance has to be tried by the Election Commission though the decision in the form has to be made by the Governor. Actual adjudication has always to be made by the Election Commission although formal order has to be pronounced by the Governor under Article 192(2) of the Constitution. It is exactly what is done in the case on hand. Since the Governor has no choice or discretion but to pass the order in accordance with the opinion of the Election Commission under Article 192(2) of the Constitution, the Writ Petition is maintainable even in the absence of Governor being a party to the proceedings when the Election Commission is itself before the Court.
13. The next point that comes up for consideration is whether the petitioner became subject to the disqualification for being a Member of the Karnataka Legislative Assembly under Article 191(1)(a) of the Constitution.
14. The petitioner was appointed as Deputy Chairman of the Planning Commission as per the appointment order - Annexure-A dated 13th December, 1989 on the terms and conditions mentioned therein. Since the said document has material bearing on the question to be decided, I consider it appropriate to reproduce the same:
'No. F.6(1397)/89-Adm.
Government of India Planning Commission
Dated 13th December, 1989