ORDER
K. Chandru, J.
1. Heard both sides. The petitioner has come forward to file the present writ petition, challenging the order of the first respondent made in G.O.Ms. No. 50, Rural Development and Panchayat Raj (PR-4), dated 16.6.2009 and published in the Government Gazette Extraordinary, dated 16.6.2009 in Part II Section 2.
2. The notification published in the gazette reads as follows:
Whereas, the opinion of the Tamil Nadu State Election Commission has been sought for, regarding the disqualification of Thiru R. Jemin, 7th Ward Member, Thiruppananthal Panchayat Union, Thanjavur District as required under Sub-section (2) of Section 41 of the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994) as he is employed as a temporary Driver in Tamil Nadu State Transport Corporation (Kumbakonam), which is a body corporate owned and controlled by the State Government;
And, Whereas, the Tamil Nadu State Election Commission, after conducting the enquiry, has stated that Thiru R. Jemin, 7th Ward Member, Thiruppananthal Panchayat Union, Thanjavur District is a servant of the Tamil Nadu State Transport Corporation (Kumbakonam) and thereby has opined that the said Thiru R. Jemin, 7th Ward Member, Thiruppananthal Panchayat Union is disqualified to continue as Member of the said Panhayat Union under Sub-section (1) of Section 34 of the said Act.
Now, therefore, under Section 41 of the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994), the Governor of Tamil Nadu hereby decides that Thiru R. Jemin, 7th Ward Member, Thiruppananthal Panchayat Union, Thanjavur District has become disqualified from holding the office of Ward Member of the said Panchayat Union under Sub-section (1) of Section 34 of the said Act with effect from 16-6-2009 as he is employed as a Driver in the Tamil Nadu State Transport Corporation (Kumbakonam), which is a body corporate owned and controlled by the State Government.
3. It is the case of the petitioner that he was elected as a Ward member from the 7th Ward of Thirupananthal Panchayat union in the election conducted during October, 2006 under the Tamil Nadu Panchayats Act, 1994. Eversince his election, he has been functioning as Ward member. A show cause notice was issued to the petitioner, dated 28.6.2008 by the Block Development Officer of Thirupananthal, stating that since the petitioner has violated Section 34 of the Tamil Nadu Panchayats Act, he will be disqualified to continue as a panchayat ward member and he was asked to reply to the said show cause notice. The said disqualification is on account of the petitioner being employed in a company controlled by the Government.
4. The petitioner sent a reply stating that he got employed as a reserve driver for daily wages and not as a permanent driver. He also wanted time to ascertain from the third respondent as to whether being employed as a temporary reserve driver, it implies that he will be an employee of the transport corporation. The petitioner also represented that he was appointed on daily wage basis and he was not given any work by the corporation despite his demand for regular employment. He contended that his being employed on daily wage cannot be construed as permanent employee of the corporation and that he was not disqualified from being the panchayat ward member. He also requested the respondents to verify from the third respondent corporation about the status of his employment.
5. The petitioner was issued with a notice by the fourth respondent (State Election Commission) on 13.3.009 asking him to attend an enquiry on 25.3.2009. The petitioner appeared before the enquiry and gave his explanation in writing. The petitioner reiterated that he was only a temporary reserve driver on daily wages and that cannot be construed as an employee of State controlled corporation.
6. Despite his reply, he was issued with the impugned proceedings, dated 16.6.2009 by the second respondent District Collector by his communication, dated 18.6.2009, stating that he stood disqualified in terms of Section 34(1) of the Tamil Nadu Panchayats Act, 1994 since he was holding the post of an employee under the third respondent transport corporation. A copy of the order made by the State Government in G.O.Ms. No. 50, dated 16.6.2009 as published in the Government gazette was also enclosed along with the letter sent by the second respondent. The petitioner has challenged the said communication and contended that the order of respondents was arbitrary and violative of Article 14 of the Constitution of India. He does not suffer from any disqualification as set out in Section 34(1) of the Act.
7. A counter affidavit, dated Nil (October, 2009) was filed by the second respondent District Collector. It was stated that as per the opinion of the Tamil Nadu State Election Commission which was obtained under Section 41(2) of the Panchayats Act, the petitioner stood disqualified. It was further stated that the petitioner was selected for the post of temporary driver by the third respondent Corporation after getting his name sponsored through employment exchange. A temporary driver is also a servant of the corporation and the Corporation is a body corporate owned and controlled by the State Government.
8. It was also stated that a temporary employee means a person who usually employed below the executive level who is hired by another to perform a service, especially for wages or salary. It is immaterial whether a person is employed temporary or permanent during the course of functioning as ward member. The petitioner did not produce any evidence of his termination from the post of driver. The General Manager of the third respondent corporation had given a letter, dated 16.1.2009 stating that the petitioner was allotted to Kumbakonam Town No. 1 Depot from 30.7.2007 as Safety Driver and subsequently, he was appointed on daily wages from 12.5.2008. Therefore, the Block Development Officer of the panchayat union submitted the proposal to disqualify the petitioner.
9. It was further stated that the petitioner has drawn allowances including sitting allowances and bus fare for attending the council meetings from 25.10.2006 to 31.5.2009 and thus had misused the Government money. It was further stated that after the petitioner's disqualification, an election was conducted to the post of ward member for 7th ward of Thirupananthal Panchayat Union on 07.10.2009 and one M. Sethuraman was elected as a ward member. Therefore, it was prayed for the dismissal of the writ petition.
10. It is an admitted case that the petitioner got elected as ward member for 7th ward of Thirupananthal Panchayat Union during October, 2006. He never had any disqualification at the time of his election. Subsequently what transpires was that the petitioner got an appointment order dated 1.9.2007, in which he was temporary selected as a reserve driver. It was stated that the petitioner was bound by the Standing Order of the Company and in case of permanent vacancy, he may be considered. Subsequently, the petitioner had got an another order, dated 14.4.2008 stating that he was selected as temporary driver pursuant to the earlier order. In hat order, it was stated that he is bound by the Standing Order. The Block Development Officer based on the letter received from the General Manager, dated 28.6.2008 stated that since the petitioner was employed as a driver, he suffered the disqualification under the Act.
11. The petitioner for the show cause notice and before enquiry had clearly explained that he was not holding any employment in the transport corporation either in a regular or permanent capacity. He was only employed as reserve driver or a temporary driver on daily wages. The petitioner also enclosed a copy of the order terminating his services from the Corporation made on the ground that he had suppressed the holding of ward membership post.
12. The question that arises for consideration is whether the petitioner suffered any disqualification under Section 34(1) of the Tamil Nadu Panchayats Act, 1994 and the section reads as follows:
34.Disqualification of officers and servants of Government and local bodies, etc.-(1)No Village Administrative Officer, or village servant and no other officer or servant of the State or Central Government or of a Village Panchayat, Panchayat Union Council, District Panchayat, Municipal Council or the Municipal Corporation of [Chennai], or of Madurai or of Coimbatore or of any other Municipal Corporation that may be constituted under any law for the time being in force or of any Industrial Township or of Cantonment or of any body Corporate, owned or controlled by the State or Central Government, shall be qualified for election as a member or for holding office as a member.
13. The term temporary workmen is defined under the Model Standing Orders applicable to workmen prescribed by the Tamil Nadu Industrial Employment (Standing Orders) Rules, 1947. 'A Temporary workman' is one who has been employed for work, which is essentially for temporary in nature likely to be finished within a specified period. Similar standing order is found in the certified standing order framed by the third respondent Corporation.
14. The question whether a person who is holding office of profit under the Government will include an employee of a local authority in terms of Articles 102(1)(a) and 191(1)(a) was dealt by the Supreme Court vide its decision in Ashok Kumar Bhattacharyya v. Ajoy Biswas reported in : (1985) 1 SCC 151. In paragraphs 20 to 22, the Supreme Court observed as follows:
20. As we have mentioned before, the object of enacting provisions like Article 102(1)(a) and Article 191(1)(a) is that a person who is elected to a Legislature or Parliament should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. The term 'office of profit under the Government' used in Clause (a) is an expression of wider import than a post held under the Government which is dealt with in Part XIV of the Constitution. The measure of control by the Government over a Local Authority should be judged in order to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the elected bodies. After reviewing various cases, and the provisions of the various sections of the U.P. Basic Education Act, 1972 especially in view of Section 13 of the Act, this Court held in the last mentioned case that the measure of control was such that U.P. Education Board was an authority which was not truly independent of the Government and every employee of the Board was in fact holding an office of profit under the State Government. The statement and object of the U.P. Basic Education Act, 1972 and Sections 4, 6, 7, 13 and 19 all of which have been set out in extenso in that decision make that conclusion irresistible.
21. 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 and the sections and 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 Government does not control officers like Respondent 1 and that he continues to be an employee of the Municipality though his appointment is subject to the confirmation by the Government. He 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 employees of Local Authorities subject to the control of Government, holders of office of profit under the Government would be to obliterate the specific differentiation made under Article 58(2) of the Constitution and to extend disqualification under Article 102(1)(a) to an extent not warranted by the language of the article.
22. Having noted the relevant provisions, we are of the opinion that Respondent 1 was not at the relevant time a holder of office of profit under the Government. Some amount of control is recognised even in a Local Authority which is taken account of under Article 58. The High Court held that Respondent 1 did not hold office of profit under the Government of Tripura on the date of filing of the nomination on an analysis of relevant provisions of the Act which we have set out hereinbefore. We are in agreement with this view of the High Court.
15. In fact, the T.N. Panchayats Act, 1958 (TN Act 35/58) originally did not have a provision to disqualify employees of State owned corporations from contesting the elections. Subsequently, such an amendment was made by T.N. Ordinance 181 (w.e.f 9.12.1981) to include employees of any body corporate owned or controlled by State or Central Government. Therefore, if a person is employed by any body corporate owned or controlled by State or Central Government he will certainly incur disqualification under Section 34 of the Tamil Nadu Panchayats Act. The third respondent is undoubtedly a body corporate owned or controlled by the State Government.
16. The question is whether the petitioner being reserve driver or a temporary driver will also incur the wrath of the disqualification made under Section 34 of the Act and whether it was the intention of the State legislature to disqualify even a temporary employee who has no right to a post, has to be considered in the present writ petition.
17. The Supreme Court vide its judgment in Hindustan Aeronautics Ltd. v. Dan Bahadur Singh reported in : 2007 AIR SCW 4933 : (2007) 6 SCC 207 dealt with the difference between a Government servant and an employee of a Government owned company. It held that an employee of the Government owned company is not a Government servant and his employment is purely contractual. In paragraphs 12 to 16, it was observed as follows:
12. We have considered the submissions made by learned Counsel for the parties. The position of a government servant is entirely different from that of a workman who is working in an industrial establishment like the appellant Company. A government servant enjoys a status and a security of tenure on account of certain constitutional provisions. In Union Public Service Commission v. Girish Jayanti Lal Vaghela it was held as under: (SCC pp. 483-84)
In the case of a regular government servant there is undoubtedly a relationship of master and servant but on account of constitutional provisions like Articles 16, 309 and 311 his position is quite different from a private employee. Thus, employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally altered by it.
13. An appointment in the Government may be on probation or in temporary capacity or permanent in nature. A permanent government servant has a right to hold the post and he cannot be dismissed or removed or reduced in rank unless the requirements of Article 311 of the Constitution or the rules governing his service are complied with.
14. The appellant, Hindustan Aeronautics Ltd., is a government company within the meaning of Section 617 of the Companies Act. What will be the legal position of a government company and whether its employees can be treated to be government servants was examined in Heavy Engg. Mazdoor Union v. State of Bihar and it was held as under in para 4 of the Report: (SCC p.768)
It is an undisputed fact that the company was incorporated under the Companies Act and it is the company so incorporated which carried on the undertaking. The undertaking, therefore, is not one carried on directly by the Central Government or by any one of its departments as in the case of Posts and Telegraphs or the Railways.
15. In A.K. Bindal v. Union of India the difference between an employee of a Government and an employee of a government company was pointed out and it was held: (SCC p. 175, para 17)
17. The legal position is that identity of the government company remains distinct from the Government. The government company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of the Companies Act. Merely because the entire shareholding is owned by the Central Government will not make the incorporated company as Central Government. It is also equally well settled that the employees of the government company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution (Pyare Lal Sharma v. Managing Director).
16. An employee working in an industrial establishment enjoys a limited kind of protection. He may lose his employment in various contingencies which are provided under the Industrial Disputes Act such as lay-off as provided in Section 25C, retrenchment as provided in Section 25F, transfer of industrial establishment or management of an undertaking as provided in Section 25FF, closure of undertaking as provided in Section 25FFF. He may be entitled to notice or wages in lieu of notice and monetary compensation depending upon the length of service put in by him. But the type of tenure of service normally enjoyed by a permanent employee in government service, namely, to continue in service till the age of superannuation, may not be available to an employee or workman working in an industrial establishment on account of various provisions in the Industrial Disputes Act where his tenure may be cut short not on account of any disciplinary action taken against him, but on account of a unilateral act of the employer. Therefore, the claim for permanency in an industrial establishment has to be judged from a different angle and would have different meaning.
18. The Supreme Court once again dealt with the status of an employee working in the Government owned company vide its judgment in State of M.P. v. Lalit Kumar Verma reported in : (2007) 1 SCC 575. After referring to the Standing Order similar to the one applicable to the petitioner, in paragraphs 6 and 7, the Supreme Court had observed as follows:
6. Clause 2 of the Standard Standing Orders reads' as under:
2. Classification of employees.-Employees shall be classified as (i) permanent, (ii) permanent seasonal, (iii) probationers, (iv) badlis, (v) apprentices, and (vi) temporary:
(i) A permanent employee is one who has completed six months' satisfactory service in a clear vacancy in one or more posts whether as a probationer or otherwise, or a person whose name has been entered in the muster roll and who is given a ticket of permanent employee;
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(vi) temporary employee means an employee who has been employed for work which is essentially of a temporary character, or who is temporarily employed as an additional employee in connection with the temporary increase in the work of a permanent nature; provided that in case such employee is required to work continuously for more than six months he shall be deemed to be a permanent employee, within the meaning of Clause (i) above.
7. A workman, therefore, would be entitled to classification of permanent or temporary employee, if the conditions precedent therefor are satisfied. The respondent was not appointed against a clear vacancy. He was not appointed in a permanent post or placed on probation. He had also not been given a ticket of permanent employee. Working on daily wages alone would not entitle him to the status of a permanent employee.
19. In the light of the above if it is seen when Section 34 though disqualifies a servant of a body corporate owned or controlled by the State Government, it never took into account a casual employment in such service. In the present case, at the time of election, the petitioner was not in any employment. Subsequently, when he was given employment as reserve duty driver that did not make him to be a regular servant of the Corporation. Even the petitioner in his explanation has produced that he was terminated from the Corporation. Therefore, a casual entry into a Government owned corporation cannot make the petitioner disqualified from continuing in his elected post.
20. In this aspect, the fourth respondent State Election Commission had not considered the status of the petitioner vis-a-viz. the disqualification clause found in Section 34. If the petitioner has no right to enter into regular service nor had any chance of becoming a regular servant of the Corporation as well as the fact that his services were dispensed with by the Corporation, he ought not to have been disqualified from being a ward member, which post he was holding by virtue of his election. When once an opinion of the Commission, which is fructified into a final notification, is set aside, the petitioner is entitled to get restored to his office as a ward member of the 7th ward. Whatever took place subsequently depends upon the earlier notification held to legally valid.
21. In the light of the above, the writ petition will stand allowed. The respondents are directed to recognise the petitioner as a member of 7th ward of Thirupananthal Panchayat Union, Thanjavur. However, there will be no order as to costs. Consequently, connected miscellaneous petition also stands closed.