ORDER
S.B. Sinha, C.J.
1. A question seemingly of some importance viz., as to whether a workman within the meaning of Industrial Disputes Act would be debarred from contesting election under Panchayat Raj Act arises for consideration in the instant case. The petitioner herein works as a general mazdur in Singareni Collieries Company Limited. He contested the election for Mandal Parishad Territorial Constituency post of Kothagudem and won the same in the year 1995. He was also a representative in Panchayat Raj body.
2. In terms of the election notification dated 22-6-2001, he filed a nomination on 29-6-2001 before the Election Officer, Mandal Parishad, Kothagudem but, the same was rejected stating that 'with reference to your letter it is informed that your nomination application No.173 for MPTC is rejected on the ground that you are employee in Singareni Collieries Company Limited as per Section 18 clause (1) of the A.P. Panchayat Raj Act, 1994.'. The petitioner preferred an appeal there-against. The same has not yet been disposed of. The petitioner contends that having regard to the provisions contained in Section 18 of the Act, he being a mazdur and having not been holding any Office of profit and in any event, as his duty being not of public character in terms of Article 191 of the Constitution, the impugned order of rejection of his nomination must be held to be without any jurisdiction. The learned Counsel for the petitioner in support of the aforementioned contention has strongly relied upon decisions of the Apex Court in Pradyut Bordolot v. Swapan Roy, : AIR2001SC296 and in Aklu Ram Mahto v, Rajendra Mahto, : [1999]2SCR362 .
3. Mr. Ramesh Ranganathan, learned Additional Advocate-General on the other hand would submit that the disqualification contained in Article 191 of the Constitution of India cannot have anyapplication in the instant case inasmuch as Article 243-F of the Constitution is of wide amplitude. The learned Additional Advocate-General would submit that the disqualification contemplated under Article 243-F not only embraces the disqualification for contesting the election for legislature of the State, but also under A.P. Panchayat Raj Act, The learned Additional Advocate-General would urge that the additional disqualification having been provided under the A.P. Panchayat Raj Act, the decision of the Apex Court in Pradyut Bordolot v, Swapan Roy (supra) shall not apply. The learned Counsel submits that a workman is also an employee has been held by this Court in J. Sadanandam v. Election Tribunal : 1991(3)ALT16 , which has been affirmed by a Division Bench of this Court in Writ Appeal No.842 of 1991 disposed of on 6-8-1991.
4. Our attention has been drawn to another decision of this Court in Jagam Mandaiah v. Singath Paddaiah, 1992 (2) An.WR 206, wherein while interpreting Section 17 of the A.P. Gram Panchayat Act, it has been held that a worker is also an employee. Strong reliance has also been placed on Employees' State Insurance Corporation v. Apex Engineering Private Limited, : (1998)ILLJ274SC .
5. In any event, contends the learned Counsel, that as the election is scheduled to be held on 12-7-2001, the remedy of the petitioner would only be to file an election petition in terms of Section 233 of the Act read with Rule 12(c) of the Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995.
6. Section 18(1) of the said Act reads thus:
Section 18. Disqualification of certain Office holders, etc. :--(1) No villageservant and no officer or servant of the Government of India or any State Government or of a local authority or an employee of any institution receiving aid from the funds of the Government and no office bearer of any body constituted under a law made by the legislature of the State or of Parliament shall be qualified for being chosen as or for being a member of a Gram Panchayat.
Explanation ;--For the purpose of this section, the expression 'village servant' means in relation to--
(i) the Andhra Area, any person who holds any of the village offices of nearganti, neeradi, vetti, Kawalkar, toti, talayar, tandalagar, sathsindhi or any such village Office by whatever designation it may be locally known;
(ii) the Telangana Area, any person who holds any of the village offices of neeradi, kawlkar, sathsindhi or any such village office by whatever designation it may be locally known.
7. The question which arises for consideration in this writ petition is whether the Singareni Collieries Company Limited can be said to be an institution receiving aid from the funds of the Government. The petitioner is admittedly working as Mazdur in the said company which is a Government company within the meaning of Section 617 of the Indian Companies Act. It is governed by its own Articles of Association and Memorandum of Association.
8. There exists a distinction between an industry and institution. Although in a given case, an institution may be an industry, but converse is not true. The said Act itself makes a distinction between an industry and institution as would appear from Section 5(1) of the Panchayat Raj Actwherein the matter of constitution of a Township, it is provided that a Township will be constituted in an industrial area or industrial colony.
9. An Institution in ordinary parlance could mean 'a large important organisation that has a particular purpose' (see Oxford Advanced Learner's Dictionary).
10. The words 'Institution receiving aid from the funds of the Government' are also significant.
11. A person can be disqualified to hold certain Offices, if inter alia he is an employee of an Institution receiving aid from the funds of the Government.
12. As Section 18 provides for a disqualification from holding of an Office, the same must be strictly construed. A citizen of India although may not have any fundamental right to contest the election but such a right is a statutory right. The right of franchise as also the right to contest in the election being valuable statutory rights, the disqualification to contest the election must be strictly construed and an effort should be made to uphold such rights.
13. For the purpose of grant of aid or receiving aid from the funds of the Government, there exists a statutory provision.
14. For the purpose of grant-in-aid, provisions have been made in A.P. Private Institutions Grant-in-Aid (Regulation) Act, 1988 and in the Education Code, Section 3 whereof deal with the regulation of grant in aid to private educational institutions.
15. An employee thus who is disqualified in terms of Section 18 thereof must be an employee of the Institution receiving aid from the funds of theGovernment in relation whereto a statutory provision exists.
16. A company may be a Government company within the meaning of Section 617 of the Indian Companies Act, but it is a body corporate. It is a distinct juristic person. It, except for certain purposes, cannot be identified with the holders of the shares. It is well known that corporate veil can be lifted only in a limited situation. Unless there exists any provisions in a statute, a Company generally cannot receive any aid from any Government. The Singareni Collieries Limited, has undertaken business venture of running the mine. It does not receive any 'aid' which is sanctioned by the statute from the funds of the Government.
17. In Gurushanthappa v. Abdul Khuddus, : [1969]3SCR425 , the Apex Court noticed the phraseology used in Article 102(1)(a) and 191(1)(a) and observed that the Parliament limited that disqualification to a person holding the Office of managing agent, manager or secretary of a company and not to other employees of the Company. It was further observed:
This provision, thus gives two indications as to the scope of the disqualification laid down in Articles 102(1)(a) and 191(1)(a) of the Constitution. One is that the holding of an Office in a company, in the capital of which the Government has not less than 25% share is not covered by the disqualifications laid down in Articles 102(1)(a) and 191(1)(a) as otherwise, this provision would be redundant. The second is that even Parliament when passing the Act, did not consider it necessary to disqualify every person holding an office of profit under a Government Company, but limited the disqualification to persons holding the Office of managing agent, manager or secretary of the Company. The fact that the entire share capital in the company in the case before us is owned by theGovernment does not, in our opinion, make any difference.
18. While considering a case of an Accountant Incharge of Agartala Municipality in Ashok Kumar v. Ajoy Biswas, : [1985]2SCR50 , the Apex Court laid down the parameters of Article 191 of the Constitution of India stating mat:
'For determination of the question whether a person holds an office of profit under the Government each case must be measured and judged in the light of the relevant provisions of the Act. Having regard to the provisions of the Bengal Municipal Act, 1932 as extended to Tripura, the provisions of which have been set out hereinbefore, we are of the opinion that the State Government does not exercise any control over Officers like accountant incharge respondent No. 1 and that he continues to be an employee of the Municipality though his appointment is subject to the confirmation by the Government. Just by reason of this condition as employee of a local authority does not cease to be an employee of the Municipality. Local authority as such or any other authority does not cease to become independent entity separate from Government. Whether in a particular case it is so or not must depend upon the facts and circumstances of the relevant provisions. To make in all cases of employees of local authorities subject to the control of Government and to treat them as holders of Office of profit under the Government would be to obliterate the specific differentiation made under Article 58(2) and Article 102(1)(a) of the Constitution and to extend the disqualification under Article 102(1)(a) to an extent not warranted by the language of the Article.
19. In Aklu Ram Mahto (supra), it was held that workers holding non-executiveposts in a Government company would not come within the purview of Section 10 of the representation of peoples Act or Article 191 of the Constitution of India. Itwas observed:
The Bokaro Steel plant under the management and control of the Steel Authority of India Limited. This is a company incorporated under the Companies Act. Undoubtedly, its shares are owned by the Central Government. The Chairman and the Board of Directors are appointed by the President of India. However, the appointment and removal of workers in Bokaro Steel Plant is under the control of the Steel Authority of India Limited. Their remuneration is also determined by the Steel Authority of India Limited. The functions discharged by the Steel Authority of India Limited or by the Bokaro Steel plant cannot be considered as essential functions of the Government. Amongst the objects of the Steel Authority of India Limited set out in the Memorandum of Association are to carry on in India or elsewhere the trade or business of manufacturing, prospecting, raising, operating, buying, selling, importing, exporting, purchasing or otherwise dealing in iron and steel of all qualities, grades and types. These objects also include rendering consultancy services to promote and organise an integrated and efficient development of iron and steel industry and to act as an agent of the Government/public sector financial institutions in the manner set out in the objects clause. In this context, a worker holding the post of a Khalashi or a Meter Reader is not subject to the control of the Central Government nor is the power of his 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 Limited. The respondents cannot,therefore, be considered as holding an office of profit under the CentralGovernment.
20. We may notice that Steel Authority of India Limited has come into being as a company by reason of the provisions of Public Sector Iron and Steel Companies (Restructuring) Miscellaneous Provisions Act, 1978. The Singareni Collieries Limited Company has not been constituted under any statutory provisions.
21. In Pradyut Bordolot v. Swapan Roy (supra), the decision in Aklu Ram Mahto (supra) was followed by the Apex Courtholding:
Posed with the perplexed problem whether a person holds an office under the Government, the first and foremost question to be asked is: Whether the Government has power to appoint and remove the person on and from the Office? If the answer is in the negative, no further enquiry is called for, the basic determinative test having failed. If the answer be a positive one, further probe has to go on finding answers to questions framed in Shivamurthy's case : (1971)3SCC870 and searching for how many of the factors pointed out in Guru Govinda Basu 's case : [1964]4SCR311 (Supra) and searching for how many of the factors pointed out in Guru Govinda Basil's case : [1964]4SCR311 (supra) do exist? The totality of the facts and circumstances reviewed in the light of the provisions of relevant Act, if any, would lead to an inference being drawn if the Office held is under the Government. The inquisitive over view eye would finally query on account of holding of such office would the Government be in a position so influence him as to interfere with his independence in functioning as a member of Legislative Assembly and/or would his holding of the two Offices - one underthe Government and the other being a member of Legislative Assembly, involve a conflict of interests inter se? This is how the issue has to be approached and resolved.
22. Article 243-F of the Constitution of India reads thus:
243-F. Disqualifications for membership;-
(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat--
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one years;
(b) if he is so disqualified by or under any law made by the Legislature of the State,
(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.
23. Although it has rightly been submitted by the learned Additional Advocate-General, the disqualification of a candidate has also been provided by or under a law made by the Legislature of State but, Section 18 of the said Act must be understood in view of the authoritative pronouncements of the Supreme Court aforementioned. While enacting Section 18 of the said Act, the legislature of the State must be held to be aware of the decisions of the Apex Court.
24. There cannot be any doubt that in terms of clause (b) of Article 243-F(1), disqualification may be provided under a statute, but such disqualification having regard to the principles of strict interpretation in our considered opinion does not bring a workman working in an industrial undertaking within the embrace of Section 18 of the Act. A purposive meaning must be attributed to the said provision.
25. It is a well settled principle of law that where the law is not clear, recourse must be taken to purposive interpretation. In Ananta Kumar Bej v. State of W.B. (Calcutta), 1999 (4) SLR 661, it has been noticed:
It is a well settled principles of law that despite absence of a rule, the Selection Committee is entitled to short list the candidates. Rule 9(c)(ii) of the rules only gives a statutory recognition to the aforementioned service jurisprudence. In a case of this nature, therefore, the doctrine of purposive interpretation should be invoked and in such a situation the word 'written test' must be held to be incorporated within the word' interview'. The answer to the question posed in this appeal, thus in the opinion of this Court, should be rendered in affirmative as otherwise the word 'written examination' would become totally otiose. Such a construction is permissible by taking recourse to the doctrine of strained construction, as has been elaborately dealt in by Francis Bennion in his Statutory Interpretation. At Section 304, of the treatise purposive construction, has been described in the following manner:-
A purposive construction of an enactment is one which gives effect to the legislative purpose by--
(a) following the literal meaning of the enactment where that meaning is inaccordance with the legislative purpose (in this Code called a purposive-and-literal construction); or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).
26. Section 17 of the A.P. Gram Panchayat Act as amended by Section 5 of the Amendment Act (32 of 1986) which was referred in J. Sadanandam v. Election Tribunal (supra) reads thus:
No village servant and no other officer or servant of the State or Central Government or of a local authority of an employee or workman of any industrial undertaking owned or controlled by the State or Central Government shall be qualified for being chosen as or for being a member of a Gram Panchayat.
Explanation:--.....
27. The said provision is not in pari materia with Section 18 of the said Act. In terms of Section 17 of the Gram Panchayat Act, 1964, an employee or workman of any industrial undertaking owned or controlled by the Central Government or State Government was disqualified for being a member of a Gram Panchayat. The Legislature has rectified the mistake. While construing the provision of this nature, the Court must keep in mind the Heydon 's Rules.
28. In the Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edition at page 98, it is stated:
When the material words are capable of bearing two or more constructions the most firmly established rule for construction of such words 'of all statutes in general (be they penal or beneficial, restrictive or enlarging of the commonlaw)' is the rule laid down in Heydon's case (1584) 3 Co. Rep. 7a, p. 7b: 76 ER 637 which has 'now attained the status of a classic (Kanailal Sur v. Paramnidhi Sadhukhan : [1958]1SCR360 . The rule which is also known as 'purposive construction' or 'mischief rule', enables consideration of four matters in construing an Act: (i) what was the law before the making of the Act, (ii) what was the mischief or defect for which the law did not provide; (iii) what is the remedy that the Act has provided; and (iv) what is the reason of the remedy. The rule then directs that the Courts must adopt that construction which 'shall suppress the mischief and advance the remedy'. The rule was explained in the Bengal Immunity Co. v. State of Bihar : [1955]2SCR603 by S.R. Das, C.J., as follows: 'It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case was decided that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st - What was the common law before the making of the Act;
2nd - What was the mischief and defect for which the common law did not provide,
3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; and
4th - The true reason of the remedy;
and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtleinventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publio,
29. In Jagam Mandaiah v. Singath Paddaiah (supra), this Court was considering provisions of Section 17 of the Gram Panchayats Act, 1964. Although in view of our findings aforementioned, the petitioner could not have been disqualified, but having regard to the fact that the election has already been held, no writ in the nature of mandamus can be issued by this Court at this stage. We may make it clear that as the question involved herein may crop up in a large number of cases, we thought it fit to lay down the law.
30. We place on record our appreciation to Sri J.R. Manohar Rao, the learned Counsel who assisted the Court as amicus curiae,
31. For the reasons aforementioned, this writ petition is disposed of. No costs