ORDER
K.A. Mohamed Shafi, J.
1. This Criminal Miscellaneous Case is filed by the accused in Crime No. 43/98 registered by the Sub Inspector of Police, Kasaba Police Station, Palakkad, alleging the offence punishable under Section 134A of the Representation of the People Act, 1951 (for short 'the Act') to quash the entire proceedings under Section 482 of the Code of Criminal Procedure.
2. The allegation made against the petitioner is that the petitioner herein, who is an employee in the Indian Telephone Industries with is a semi Government concern, acted as polling agent for Shri. V.S. Vijayaraghavan, a candidate in the General Election held on 28-2-1998 in polling booth No. 77 Pudussery U.P. School and as such he committed the offence alleged against him.
3. The petitioner has contended that he is only an employee in the Indian Telephone Industries which is a company under the Government of India the employees of which are not Government servants and, therefore, he was not in the service of the Government so as to attract the offence punishable under Section 134A of the Act. The only question to be considered in this case is whether the petitioner is in the service of the Government so as to attract the provisions of Section 134A of the Act.
4. The Representation of the People Act has not defined 'a person in the service of the Government'. Therefore, the Public Prosecutor submitted that the definition of 'public servant' given in Section 21 of the Indian Penal Code has to be accepted to find whether a person is in the service of the Government as provided under Section 134A of the Act. On the other hand, the counsel for the petitioner submitted that the definition of 'public servant' in Section 21 of the IPC cannot be imported to the provisions of the Act since the provisions of the Act refer to not public servant but any person in the service of the Government and both the expressions are entirely different. Section 21 of the IPC defines 'public servant' which reads as follows :
Section 21. 'Public servant'.- The wrods 'public servant' denote a person falling under any of the descriptions hereinafter following, namely :-
xx xx xx xx xxTwelfth.- Every person -
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act, or a Government company as defined in Section 617 of the Companies Act, 1956(1 of 1956).* * *
5. The Public Prosecutor submitted that in several cases persons performing public duty and discharging public functions have been construed to be an officer of the Government to be prosecuted for the offence committed by them being public servants. In the decision reported in State of M.P. v. M. V. Narasimhan AIR 1975 SC 1835 :(1975 Cri LJ 1639) the Supreme Court has held that an employee of the Heavy Electricals (India) Ltd., Bhopal is a public servant within the meaning of Section 2 of the Prevention of Corruption Act. In the decision reported in Bajrang Lal v. State of Rajasthan (1976) 2 SCC 217: (1976 Cri LJ 727) the Supreme Court has held that a person in the railway service is a public servant to be found guilty under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Sections 120B and 465 of the IPC. In that decision the Supreme Court has observed as followed (at pp. 730-731 of Cri LJ):
Thus, the position that emerges is, that although Bajrang Lal and Ram Kishan were not formally appointed to work in the pass section, the posts held by them being of Khalasis drawing pay from the railway carriage section, their services were actually utilised in the pass section of the office of the Works Manager. The appellant, was, therefore, in actual possession of the situation of a public servant and in view of Explanation II to Section 21, Penal Code, would be a 'public servant' notwithstanding the defect in his right to hold that situation.
6. In the decision reported in M. Muniswamy v. State of Karnataka (1993) 3 Crimes 809 a learned single Judge of the Karnataka High Court has held that if the prosecution establishes that the Indian Tourism Development Corporation is a Government Company within the meaning of Section 617 of the Companies Act, there could be absolutely no doubt that a person working in a subsidiary unit of such a Corporation would necessarily be a public servant within the meaning of Section 21 of the IPC.
7. The above decisions relied upon by the learned Public Prosecutor have no application to the facts of this case. Those decisions have arisen in prosecution under the provisions of IPC and the Prevention of Corruption Act. The very object of the Prevention of Corruption Act is to eradicate corruption at various levels either in the Government service or in the service of Corporation or Government companies, over and above the provisions of Sections 161 and 165 of the IPC. lt is also pertinent to note that the definition of 'public servant' given in Section 21 of the IPC cannot be imported to the provisions of the Representation of the People Act wherein references are made to a person in the service of the Government and not as a public servant.
8. Section 134A of the Act reads as follows :
134-A. Penalty for Government servants for acting as election agent, polling agent or counting agent.- If any person in the service of the Government acts as an election agent or a polling agent or a counting agent of a candidate at an election, he shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both.
Section 10 of the Act deals with disqualification for office under Government company which reads as follows :
A person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share.
Section 123 of the Act deals with corrupt practices which reads as follows :
123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purposes of this Act:-
xx xx xx xx xx(7). The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government.
In all these provisions of the Act reference is made to any person in the service of the Government and not to the Government servant or public servant. Therefore, it is clear that the framers of the Act have made a clear distinction between a public servant and a person in the service of the Government.
9. In the decision reported in K. C. Deo Bhanj v. Raghunath Misra AIR 1959 SC 589 the Supreme Court has held that a Sarpanch of a Grama Panchayat constituted under the Orissa Gram Panchayats Act, 1948 is not a person in service of the Government. In paragraph 11, the Supreme Court has observed as follows :
In our opinion, there is a distinction between 'serving under the Government' and 'in the service of the Government', because while one may serve under a Government, one may not necessarily be in the service of the Government; under the latter expression one not only serves under the Government but is in the service of the Government and it imports the relationship of master and servant. There are, according to Batt (on the Law of Master and Servant), two essentials to this relationship: (1) The servant must be under the duty of rendering personal services to the master or to others in his behalf and (2) the master must have the right to control the servant's work wither personally or by another servant or agent and, according to him.
10. Though in the above decision the question arose before the. Supreme Court was whether a Sarpanch of a Grama Panchayat constituted under the Orissa Gram Panchayats Act is exercising functions as in service of the Government, the above dictum laid down by the Supreme Court is applicable to the facts of this case also. It is also held by the Supreme Court that though the Sarpanch of a Grama Panchayat constituted under the Orissa Gram panchayats Act exercised governmental duties he cannot be regarded as a person in the service of the Government for the purpose of Section 123(7) of the Representation of the People Act.
11. In the decision reported in Ramachandra Chodhuri v. Sadasiva Tripathy (1953) 5 Ele. LR 401, the Election Tribunal has held that the Manager of a Court of Wards under the Orissa Court of Wards Act, 1947 is not a Government servant within the meaning of Section 123(8) of the Representation of the People Act, 1951 though he is a 'public servant' within the meaning of Section 12 of the Indian Penal Code. In the decision reported in Linga Gowda v. Shivananjappa (1953) 6 Ele LR 288, the Election Tribunal has held that a Director of a company does not become a Government servant merely because the Government owns a large number of shares in the company and he was nominated as a Director by the Government under a clause in the articles of association of the company which empowered the Government to nominate some Directors of the company. In the decision reported in Rustom Satin v. Dr. Sampoornand (1959) 20 Ele LR 221, the Allahabad High Court has held that the Ministers and the Chairman of the Legislative Counsel of a State are not persons in the service of the Government within the meaning of Section 123(7) of the Representation of the People Act, 1951 since they are chosen by election under Article 182 of the Constitution and not by the Government and the termination of their service is also regulated by Articles 183 and 185 of the Constitution and not by any Rules made by the Government.
12. In the decision reported in C.B.C. Warrier v. G. P. Mangalathumadom 1977 Ker LT 610, this Court elaborately considered the tests to determine whether an office is an office under the Government while considering the question whether the President of the Travancore Devaswom Board is an holder of an office of profit under the Government and laid down five tests to find out whether an office in question is an office under a Government and whether it is an office of profit. They are : (1) whether the Government makes the appointment; ((2) whether the Government has the right to remove or dismiss the holder; (3) whether the Government pays the remuneration; (4) what are the functions of the holder? Does he perform them for the Government; and (5) does the Government exercise any control over the performance of those functions. These questions are elaborately dis cussed in paragraphs 6 to 10 of the judgment. I respectfully agree with the discussions of the learned Judge in those paragraphs of the judgment and those tests are applicable to the facts of this case.
13. In the decision reported in Election Commission of India v. S.B.I. Staff Association, Local Head Office Unit, Parna (1995) 2 JT (SC) 61 : (AIR 1995 SC 1078), the Supreme Court has held that the Election Commission cannot requisition the services of the staff of Banks who are neither servants of the Central or State Government or any local authority under Section 159 of the Act and Article 324 of the Constitution. In the decision reported in Mohd. Hadi Raja v. State of Bihar (1998) 5 SCC 91 : (1998 Cri LJ 2826), the Supreme Court has held that the provisions of Section 197 of the IPC are not applicable for prosecution of office of Government companies or public undertakings even if such companies or undertakings fall within the definition of 'State' under Article 12 of the Constitution. It is also held that even though those instrumentalities or agencies of the State perform some of the functions of the State, they have their own separate entity and cannot be equated with departments directly run by the Government. In the decision reported in Aklu Ram Mahto v. Rajendra Mahto AIR 1999 SC 1259, the Supreme Court held that the workers holding non-executive posts of Khalashi or a meter reader in Government Company cannot be considered as Managing Agent of the company so as to attract disqualification from contesting elections under Section 10 of the Act. In that judgment the Supreme Court has observed as follows (at p. 1262 of AIR):
In the case of Gurugobinda Basu v. Sankari Prasad Ghosal (1964) 4 SCR 311: AIR 1964 SC 254 the Court after examining earlier authorities enumerated various factors which enter into the determination of the question whether a person holds an office of profit under the Government. He holds an office of profit under the Government if the Government is : (1) the appointing authority; (2) the authority vested with power to terminate the appointment; (3) the authority which determines the remuneration; (4) the source from which the remuneration is paid and (5) the authority vested with power to control the manner in which the duties of office are discharged. All factors need not be present. Whether stress will be laid on one factor or the other will depend on the facts of each case. But where several elements are present in a given case then the officer in question holds the office under the authority so empowered.
It is further observed by the Apex Court as follows (at p. 1264 of AIR):
The Bokaro Steel Plant is under the management and control of the Steel Authority of India Ltd. 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 Bokarao Steel Plant is under the control of the Steel Authority of India Ltd. Their remuneration is also determined by the Steel Authority of India ltd. The functions discharged by the Steel Authority of India, or by the Bokaro Steel Plant cannot be considered as essential functions of the Government. Amongst the objects of the Steel Authority of India Ltd. set out in the Memorandum of Association are to carry on in India or elsewherethe trade or business of manufacturing, prospecting, raising, operating, buying, selling importing, exporting, purchasing or otherwise dealing in iron and steel of all qualities, grade and types. These objects also include rendering consultancy services to promote and organise and 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 Ltd. The respondents cannot, therefore, be considered as holding an office of profit under the Central Government.
14. The above observations made by the Apex Court are squarely applicable to the facts of this cases also. The respondent State has no conation apart from that the petitioner is an employee in the Indian Telephone Industries and as such he will come within the ambit of a person in the service of the Government so as to attract the provisions of Section 134A of the Act that the petitioner is appointed by the Government or the Government is exercising control over the employees of Indian Telephone Industries or the Government has any power to remove them from service. It is clear that the petitioner herein cannot be held to be in the service of the Government so as to attract the provisions of Section 134A of the Act. Admittedly, the petitioner is an employee in the Indian Telephone Industries which is a company under the Government of India. The employees of the company are governed by the provisions of the Industrial Disputes Act. They are not appointed by the Government of India, but they are appointed and controlled by the Director, Board of the company. Even if it is found that the petitioner, an employee of the company owned by the Government of India, is discharging certain governmental functions, he will not come within the ambit of a person in the service of the Government as required under the provisions of the Act. Therefore, the petitioner cannot be construed as a person in the service of the Government so as to attract the provisions of Section 123(7) or Section 134A of the Act.
15. Under the circumstances, the prosecution of the petitioner alleging the offence punishable under Section 134A of the Act is absolutely illegal. Therefore, the FIR registered against the petitioner alleging the offence punishable under Section 134A of the Act or the subsequent proceedings taken thereunder should be quashed by invoking the jurisdiction of this Court under Section 482 of the Cr. P.C.
Hence this criminal Miscellaneous Case is allowed and Crime No. 43/98 registered by the S.I. of Police, Kasaba Police Station, Palakkad, against the petitioner and other subsequent proceedings taken thereunder are quashed.