Case: Karbhari Bhimaji Rohamare Vs. Shanker Rao Genuji Kolhe &amp; Ors

2. February 8, 1972 was the last date for filing nominations and February 11, 1972 the last date for withdrawal of candidature. The 1st respondent resigned as a member of the Wage Board on February 20, 1972 and-the letter of resignation was received by the concerned authorities on February 22, 1972.3. The Wage Board to which the 1st respondent was nominated as a member on 13-4-1971 was constituted under the provisions of Chapter 12-A of that Act introduced by the Amending Act No. 43 of 1948. Under Section 86-C the State Government may make reference to the Wage Boards for decision of any industrial matter or industrial dispute. Under Section 86-G the order or decision of the Wage Board is made appealable to the Industrial Court. The parties on whom the order or decision of the Wage Board is binding are enumerated in Section 86-H Section 86-1 provides for review of the order or decision, by the Wage Board. Section 86-J confers certain powers of superintendence on the Industrial Court over all Wage Boards.

Reasoning: In Abdul Shakur v. Rikhabchand, (1958 SCR 387     at p. 394) = (AIR 1958 SC; 52) this Courtpower of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion and payment from out of Government revenues are important factors in determining whether that person is holding an office of profit under theaside for the present the question of payment, as the 1st respondent was appointed by the Government the Government could either continue him in that office or revoke his appointment at their discretion. In Ramappa v. Sangappa, 1959 SCR 1167   = (AIR 1958 SC 937  ) this Court pointed outoffice has to be held under someone for it is impossible to conceive of an office held under no one. The appointment being by the Government, the office to which it is made must be held under it, for there is no one else under whom it can beis no doubt that in this case the office of the membership of the Wage Board should be deemed to have been held by the 1st respondent under the Government of Maharashtra. In Gurgobinda Basu v. Sankari Prasad Ghosal, (1964 (4) SCR 311  ) = (AIR 1964 SC 254  ) it was heldholding an office of profit under the Government a person need not be in the service of the Government and there need not be any relationship of master and servant betweenthat view even the Comptroller and Auditor General, being appointed by the President and his administrative powers being 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, was held to be a holder of an office of profit under the Government of India. In Shivamurthy Swami v; Sanganna Andanappa (1971) (a) SCC 870) the indicia of an office held under the Government were putthe office in question must have been held under a Government and to that some pay, salary, emoluments or allowance is attached. This Court in several decisions had laid down the tests for finding out whether an office in question is an office under a Government and whether it is an office of profit. Those tests 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 thethe holder? Does he perform them for the Government and (5) Does the Government exercise any control over the performance of thoseleaving aside for the present the question of payment of remuneration, the office of the membership of the Wage Board satisfies all the tests here laid down, The power exercised by the Wage Board is essentially a part of the judicial power of the State and the Wage Board is appointed to exercise that power. There can, therefore, be no doubt that the 1st respondent did hold an office under the Government. This proposition was not seriously disputed by the 1st respondent. Theonly serious dispute is whether that office was an office ofdo not think that the dictionary meaning is of much help here. We are of opinion that the matter must be considered as a matter of substance rather than of form, of the essence of payment rather than its nomenclature. Even so, it is urged on behalf of the appellant that the payment of honorarium in this case could not have been for any purpose other than payment for services rendered on particular days on which the meetings of the Wage Board were held. We are not able to accept this contention.Reference has already been made to the various payments to which the 1st respondent was entitled to as a member of the Wage Board. It is not necessary to refer the number of meetings he attended or the places at which he attended the meetings because the question has to be decided not on whether a particular member made a profit out of the payments made to him but on what was the effect of the payments in general. The daily allowance is not payable for a halt upto six hours, and for halt exceeding six hours but less than 12 hours only hall the daily allowance was payable. The daily allowance was Rs. 18/whether the meeting was held at Bombay, Poona, Aurangabad or Kopargaon. The learned Judge of the High Court has pointed out that for attending the meeting in Bombay a member coming from outside was expected to come by the latest available train and to leave by the first available train and the charging of daily allowance depended upon the arrival and departure of the trains. The 1st respondents evidence was that when he came to Bombay for attending the meetings of the Wage Board, he had to spend Rs. 20/as taxi fare, Rs. 25/, lunch and dinner and Rs. 40/for lodging, that if he had a single room for the stay in a hotel he used to Pay Rs. 30/per day. He seems to have been staying in a modest hotel which charged Rs. 15/to Rs. 16/for a common room and Rs. 28/to Rs. 30/for a single room including lodging and boarding charges. As pointed out by the learned Judge, it should not be forgotten that if for the purpose of his lunch a member was expected to return to his hotel from the place where the meeting was held, he will have to incur double the taxi fare, both before and after the lunch, and if he does not return back to the hotel he has to arrange for the lunch at a place in the vicinity of the office where the Board meetings are held and pay for it.After an elaborate discussion of all the evidence, the learned Judge accepted the evidence of the 1st respondent that he had to spend Rs. 20/for taxi fare, that in the hotel where the 1st respondent stayed the charges for a common room was Rs. 15/to Rs. 16/and for a single room Rs. 28/to Rs. 30/per day including lodging and boarding and that if regard be had to these figures then the aggregate of the honorarium and the daily allowance payable to the 1st respondent was hardly sufficient to meet the personal expenditure incurred for the purpose of attending the meting in Bombay, and simply because he was paid both honorarium and daily allowance it could not be said that he was making any pecuniary gain thereby. We agree with the learned Judges conclusion. The question has to be looked at in a realistic way. Merely because part of the payment made to the 1st respondent is called honorarium and part of the payment daily allowance, we cannot come to the conclusion that the daily allowance is sufficient to meet his daily expenses and the honorarium is a source of profit.A member of the Wage Board cannot expect to stay in Taj Hotel and have a few drinks and claim the expenditure incurred, which may come perhaps to Rs. 150/to Rs. 200/a day, for his personal expenses. In such a case it may well be held to give him a pecuniary gain. On the other hand he is not expected to live like a sanyasi and stay in a dharamshala and depend upon the hospitality of his friends and relatives or force himself upon them. Nobody with a knowledge of the expenditure likely to be incurred by a person staying at a place away from his home could fail to realise how correct the assessment of the learned Judge is. We are satisfied that the payments made to the 1st respondent cannot be a source of profit unless he stays with some friends or relatives or stays in a dharamshala. The appellant has not satisfied the test or discharged the burden pointed out by this Court in Umrao Singhs case (1969) 1 SCR 421  (AIR 1969 SC 262  ).The law regarding the question whether a person holds an office of profit should be interpreted reasonably having regard to the circumstances of the case and the times with which one is concerned, as also the class of person whose case we are dealing with and not divorced from reality.We are thus satisfied that the 1st respondent did not hold an office of profit.11. We do not consider that the decision of this Court in Mahadeo v. Shantibhai, (1969 (2) SCR 422  ) is at all helpful to the appellant. There the successful candidate was appointed by the Railway to watch cases coming up for hearing against Railway in the various courts and give timely intimation of the same and if no instructions regarding any particular case were received by him he was expected to appear in the court and obtain an adjournment. He was to be paid Rs. 5/for every such adjournment. There was no question there of his incurring any expenditure. A lawyer would in the normal course be attending the courts and if he discharges some duties while so attending and gets paid for it clearly he derives a profit thereby and the decision holding that he was holder of an office of profit is clearly distinguishable from the facts of this case.