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PETITIONER: UMRAO SINGH

       Vs.

RESPONDENT: DARBARA SINGH & ORS.

DATE OF JUDGMENT: 25/07/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHAH, J.C.

CITATION:  1969 AIR  262            1969 SCR  (1) 421  CITATOR INFO :  R          1975 SC 575  (8,10)

ACT:     Constitution of India, Art. 191---Chairman of  Panchayat Samiti-paid  allowances to cover expenses on panchayat  work under  rules  framed  by State Government--if an  office  of profit under the Government.

HEADNOTE:     The  appellant who was defeated by the first  respondent in the General Election of 1967 to the Punjab Vidhan  Sabha, challenged  the latter’s election on the ground that he  was disqualified  from being chosen as a member of the  Assembly because  he was holding an office of profit under the  State Government  at the relevant time.  It was admired  that  the respondent was the Chairman of a Panchayat Samiti and it was contended  by the appellant that the allowances paid to  the Chairman under Rules 3 to 7 of the Punjab panchayat  Samitis and  Zila  Parishads,   Non-Official  Members  (Payment   of Allowances)  Rules,  1965,  made that office  an  office  of profit.  The High Court dismissed that election petition and on appeal to this Court,     HELD:  The  High Court came to a correct  conclusion  in holding that the allowances paid under Rules 3 to 7 did  not convert  the office of Chairman of Panchayat Samiti into  an office of profit.     The payment to a Chairman under r. 3 is described in the rule  as  a monthly consolidated allowance in  lieu  of  all other   allowances  for performing all official  duties  and journeys   concerning  the  Panchayat  Samiti   within   the district.   This provision clearly shows that the  allowance paid  is  not  salary, remuneration  or  honorarium  but  an allowance paid for the purpose of ensuring that the Chairman of  a Panchayat Samiti  does not have to spend money out  of his own pocket for the discharge of his duties.  The  burden which lay on the appellant to show that the allowance of Rs. 100/-  per  month  was excessive and  was  not  required  to compensate the Chairman for his actual expenses had not been discharged. [426 F-G, 427 B-C]     Rules  4  to  7 only provide for  payment  of  traveling allowance  and  daily allowance when a Chairman  performs  a journey  in connection with his official duties outside  the

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district.  There is again no evidence from which it could be inferred  that  the  amount received by a  Chairman  was  in excess of his actual expenditure. [427 H-428 B]     There was no force in the contention that the payment of traveling  allowance under Rules 3 to 7 was in  addition  to the payment of the consolidated monthly allowance under Rule 3  and  payment of two sets of allowances  must  necessarily result  in profit to the payee.  Rule 3 only covers  payment to  compensate a Chairman for journeys performed by him  for his  official  duties  within  the  district  in  which  the Panchayat is situated, while rules 4 to 7 govern cases where the journey is performed outside the district. [428 F-G]     Ravanna  Subanna v. G. S. Kaggeerappa, A.I.R. 1954  S.C. 653 at p. 656; distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1707 of 1967. 422     Appeal under Section 116-A of the Representation of  the People Act, 1951 from the judgment and order dated September 19,  1967 of the Punjab and Haryana High Court  in  Election Petition No. 28 of 1967.     Harder Singh, P. Parmeswara Rao and S.S. Khanduja,   for the appellant. R.K. Garg, S.C..Agarwala, Baldev Singh Khojiand Anil Kumar Gupta, for respondent No. 1. The Judgment of the Court was delivered by   Bhargava, J. The appellant, who was defeated by respondent No.  1  (hereinafter referred to as "the  respondent"),  the successful candidate, in the General Election of 1967 to the Punjab  Vidhan  Sabha from  Nakodar  Constituency,  District Jullundur,  challenged the election of the respondent in  an election  petition  inter  alia on the ground  that  he  was disqualified from being chosen as a member of the  Assembly, because  he was holding an office of profit under the  State Government  at the relevant time.  This was the only  ground which  was  pressed at the trial of  the  election  petition before  the High Court of Punjab and Haryana at  Chandigarh. The   High   Court   dismissed   the   election     petition rejecting this contention of the appellant and, consequently the appellant has come up to this Court in this appeal under section 116A  of the Representation of the People Act, 1951.     Admittedly,  the  respondent  was  the  Chairman  of   a Panchayat  Samiti  and the ground that he  was  disqualified from   being  a candidate was based on Rules 3 to 7  of  the Punjab  Panchayat Samitis and Zila  Parishads,  Non-official Members  (Payment  of Allowances) Rules,  1965  (hereinafter referred to as "the Rules") which are as follows :--                      "3.  There  shall  be  paid  a  monthly               consolidated  allowance, in lieu of all  other               allowances,  at  the following rates.  to  the               Chairman  of a Panchayat Samiti and that of  a               Zila  Parishad,  for performing  all  official               duties  and journeys concerning the  Panchayat               Samitis  or  Zila Parishad as the case may be,               within   the district, including attending  of               meeting,  supervision   of   plans,  projects,               schemes  and  other works and  also  for  ’the               discharge   of  all  lawful  obligations   and               implementation of Government directives :-                   (a)  Chairman, Panchayat Samiti    ..  Rs.               100                   (b)  Chairman, Zila Parishad       ..  Rs.

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             150                   4.   The  Chairmen,  Vice-Chairmen     and               Members  shall,  for the purpose of  rates  of               mileage and daily allowance admissible to them               under   these  rules,  be  divided  into   the               following two categories :--                         423                 (i) Category I---This shall include Chairmen               and Vice-Chairmen of the Panchayat Samitis and               Zila Parishads.                (ii)  Category  II--This  shall  include  all               other  Members  of the Panchayat  Samitis  and               Zila Parishads.                   5.  There shall be paid to the   Chairman,               Vice  Chairman and Member,  mileage  allowance               for journeys performed  for any official  work               outside the district. Such journeys shall  not               be   undertaken  unless  authorised   by   the               Panchayat Samiti or the Zila Parishad, as  the               case may be.                   Note  :--The  Power  under  this  sub-rule               shall not be delegated to any other authority.                   (2) The Vice-Chairman and the Member shall               also be paid mileage allowance, in respect  of               a journey performed within the district, for--               (a) attending the meetings; and                (b) for any official work or for  supervision               of a cattle fair held by the Panchayat Samiti:     Provided  that the Vice-Chairman and the  Members  shall not   be entitled  to  mileage  allowance  under clause  (b) unless  the  journey for such work or supervision  has  been approved  by the Panchayat Samiti or Zila Parishad,  as  the case  may  be,  and  the  number  of  Members  deputed   for supervision does not exceed five on any one day.     6. The payment of mileage allowance to a Chairman, Vice- Chairman and Members for the purposes and journeys mentioned in rule 5 shall  be  regulated  as follows :--                (i)  Mileage  allowance  by  rail.---For   ’a               journey  between  the  stations  connected  by               rail, the Chairman and  Vice-Chairman shall be               entitled  to  travel  by  1st  Class  and  the               Members   by 2nd Class.  The  Chairman,  Vice-                             Chairman and the Members shall be enti tled  to               draw single fare of the Class of accommodation               to which  he  is entitled:     Provided  that  if  the journey is  performed  in  lower class, the Chairman, Vice-Chairman and Members shall 424 be entitled to the fare actually paid for that class.    (ii)  Mileage allowance by bus.---For a  journey  between the  places  connected by road, where  regular  bus  service plies,  and  also   for  a  journey  between  the   stations connected  by rail but performed  by bus by taking a  single seat  the Chairman, Vice-Chairman and Members shall be  paid the fare actually paid.    (iii)  Mileage  allowance  for  journeys   between    the stations partly connected by rail and partly by bus.---For a journey  between   stations  partly connected  by  rail  and partly  by  bus, the Chairman,’  Vice-Chairman  and  Members shall  be paid actual railway fare limited to the  class  of accommodation  to  which  he is entitled and  the  bus  fare actually paid.    (iv)   Mileage  allowance  by  road.--(a)   The   mileage allowance  by  road  shall  be  admissible,  at  the   rates

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specified below, for the journeys performed by the Chainnan, Vice-Chairman or Members between stations which are  neither connected by rail nor by regular bus :-- ------------------------------------------------------------   Motor Cycle or    Ordinary cycle       Other means of con-   Scooter                                    veyance ------------------------------------------------------------- 12 Paise per mile   9 Paise per mile      25 Paise per mile --------------------------------------------------------------               (b) If a Chairman,  Vice-Chairman  or   Member               performs  a journey by  Motor Cycle,  Scooter,               Ordinary Cycle or by other means of conveyance               between  the  stations connected  by  rail  or               regular bus, the mileage allowance  calculated               at  the rates prescribed ’above for each  kind               of  conveyance shall be limited to rail or bus               fare,  had the journey been performed by  rail               or bus as the case may be. Notes.--( 1 ) A  Chairman,  Vice-Chairman  or Member,  using means  of  locomotion  provided  at  the  expense  of    the Government,  Panchayat  Samiti, Zila Parishad or  any  other local  authority  shall  not  be  entitled  to  any  mileage allowance.  (2) A  Chairman,  Vice-Chairman  or  Member travelling in a vehicle  belonging  to any other  Member,  Vice-Chairman  or Chairman  shall  not be entitled to any  mileage  allowance. The  mileage  allowance of the owner of the  vehicle  shall, however, be regulated under clause (iv). 425       7.  Subject  to the provisions of rule  3,  --(1)  the daily  allowance to a  Chairman, Vice-Chairman  and  Members shall be admissible at the following rates :--   Category I               .. Rs. 6.00 per day.   Category II              .. Rs. 4.00 per day.                 (2) A  Chainnan,  Vice-Chairman,  or  Member               shall be allowed :--                   (a) full ’daily allowance for the day  he.               attends the meeting;                   (b)  full daily allowance for the days  of               halt  in  case  the halt is  for  any  of  the               purposes specified in rule 5 above;                   (c)  half daily allowance for the  day  of               departure and half-daily allowance for the day               of  arrival  in  connection  with  a   journey               performed for any of the purposes specified in               rule 5:               Provided that-                   (i)  in  the  case of  a  Chairman,  Vice-               Chairman  or Member who is treated as a  State               guest while attending the meeting or while  on               duty within or outside the district his  daily               allowance   for such days shall be limited  to               one-fourth  if he is provided with free  board               and lodging and to one half, if he is  charged               either for board or for lodging;                   (ii)  not  more than one  daily  allowance               shall be admissible for a day in any case.                  (iii)  a Chairman, Vice-Chairman or  Member               may, at his option draw one daily allowance in               lieu  of  mileage allowance  plus  half  daily               allowance for the day of journey preceding and               following the day(s) of halt." It  was alleged that the office of Chairman of  a  Panchayat Samiti  was an office under the State Government  of  Punjab and  that  the allowances paid under these Rules  made  that

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office an office of profit.  Two questions, therefore, arose for  decision.   The first was whether the  payment  of  the allowances under rules 3 to 7 made the office of Chairman of Panchayat  Samiti an  office  of profit, and the second  was whether the office of  Chairman  of Panchayat Samiti was  an office under the State Government.     The learned Judge trying the election petition  recorded evidence in the trial of the petition up to 31st July, 1967, and  adjourned the case for arguments to 21st August,  1967. On 19th 426 August,  1967,  however,  the  Governor  of  Punjab   issued Ordinance  No.  10 of 1967 to amend  the  State  Legislature (Prevention  of  Disqualification) Act, 1952, so as  to  add section 2(b)  in that Act as follows :--                     "It is hereby further declared that  the               office   of Chairman of a Panchayat Samiti  or               Zila  Parishad shall be deemed never  to  have               disqualified  and  shall  not  disqualify  the               holder  thereof  for being chosen as,  or  for               being,   a   Member  of   the   Punjab   State               Legislature." In  view of the issue of this Ordinance, the  appellant  was allowed  to challenge the validity of the Ordinance  without amendment  of the election petition, and the  learned  Judge trying  the  petition, being of the view  that  the  various questions  involved  were  of  considerable  importance  and should be settled by a  larger  Bench, referred the petition to  a  Full  Bench.  The Full Bench held on  the  first  two questions against the appellant, so that the petition had to be  dismissed on that ground. Consequently, the  Full  Bench refrained from expressing any opinion on the third  question relating  to  the validity of the Ordinance  and  passed  an order dismissing the petition with costs.     In this appeal also, the same three questions have  been again  raised  by  the .appellant.  We  consider  that  this appeal can be disposed of on the basis of the answer to  the first  question  alone, because, in our  opinion,  the  High Court  came  to  a correct conclusion in  holding  that  the allowances  paid  under rules 3 to 7 of the  Rules  did  not convert  the office of Chairman of a  Panchayat Samiti  into an office of profit.     The payment to a Chairman, Panchayat Sanuti, under r.  3 is  described  in  the  rule  as  ’a  monthly   consolidated allowance  in’ lieu of all other allowances  for  performing all  official duties and journeys concerning  the  Panchayat Samiti   within  the  disutility,  including  attending   of meetings,  supervision  of  plans,   projects,  schemes  and other  works,  and  also for the  discharge  of  all  lawful obligations  and  implementation of  Government  directives. This  provision  in  very .clear  language  shows  that  the allowance  paid is not salary, remuneration  or  honorarium. It is clearly an allowance paid for the purpose of  ensuring that  the  Chairman of a Panchayat Samiti does not  have  to spend  money out of his own pocket for the discharge of  his duties.   It envisages that, in performing the  duties,  the Chairman  must  undertake journeys within the  district  and must  be  incurring expenditure  when   attending  meetings, supervising  plans,  projects, schemes and other  works  and also  in  connection  with the  discharge  of  other  lawful obligations and implementation of Government directives.  No evidence  has  been led on behalf of the appellant  to  show that  a  Chairman  of a Panchayat Samiti does  not  have  to perform such journeys      427

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in   the  course  of  his  official  duties  and  to   incur expenditure in that connection.  The State Government, which was   the  competent authority, fixed the allowance   for  a Chairman  of  a  Panchayat Samiti at Rs.  100/-  per  month, obviously  because it was of the opinion that this sum  will be  required on an average every month to meet the  expenses which  the Chairman will have to incur in  this  connection. In  these circumstances, the burden lay on the appellant  to give evidence on the basis of which a definite finding could have   been  arrived at  that the amount of  Rs.  100/-  per month was excessive and was not required to  compensate  the Chairman  for  the  expenses to be incurred by  him  in  the discharge  of his official duties as envisaged in the  rule. That  burden  clearly  has not been  even  attempted  to  be discharged by the appellant.     In this connection, the High Court rightly compared rule 3  of  the  Rules with the earlier  provision  on  the  same subject  contained in the Punjab Panchayat Samitis and  Zila Parishads NonOfficial Members (Payment of Allowances) Rules, 1961.   Under those earlier Rules of 1961, the Chairman  was entitled  to draw travelling allowance and  daily  allowance even  when  travelling  within the  district.   There  were, however,   certain  limitations, such as that no  travelling allowance  was to be drawn by a Member, if the  journey  was performed  for attending a meeting held within a  radius  of five  miles from his place of residence or he performed  the journey  in a transport provided at the expense of the  Zila Parishads/Panchayat Samiris or any other local authority  or Government. There were also limitations on the right to draw daily allowance, e.g., the amount of daily allowance was  to be  limited to 1/4th of the rate provided, if  the  Chairman was  provided free board and lodging officially and. at  1/2 rate  if he was charged either for board or for lodging.  It appears that in the year’ 1965, it was considered  desirable that  the  Chairman of a Panchayat Samiti  should  not  draw travelling  allowance and daily allowance  while  performing duties  within the district and should only be  entitled  to these  ,allowances  when  required  to  travel  outside  the district.  Consequently, under r. 3 of the Rules,  provision was  made  for  this monthly allowance of  Rs.  100/-  as  a consolidated  amount  in lieu of the  travelling  allowance, daily  allowance, or any other allowances to which he  might have  been entitled in order to compensate him for  expenses incurred in connection  with  the discharge of his  official duties.    In  these  circumstances,  the  High  Court   was perfectly  correct in arriving at the conclusion  that  this allowance  of Rs. 100/- per month did not amount to  receipt of  any profit or gain by the Chairman and only  represented the  amount  which he was expected to spend on  an   average every  month  for the purpose of  properly  discharging  his official duties.     So  far as rules 4 to 7 are concerned they only  provide for payment of travelling allowance and daily allowance when a Chair- 428 man  performs  a journey in connection  with  his   official duties outside the district.  Clearly, these allowances  are also  meant  to  ensure  that he  does  not  have  to  incur expenditure   from  his  own  pocket  for  the  purpose   of discharging  his  official  duties.    There  is  again   no evidence  from  which  an inference may be  drawn  that  the amount  received by a Chairman for travelling  allowance  or daily  allowance is in excess of the amount  of  expenditure which he would have to incur for ’the purpose of  performing the journeys in order to discharge his official duties.

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   Our  attention was drawn by learned counsel to the  fact that  in rule 7 the persons entitled to daily allowance  are divided  into two categories and a Chairman of  a  Panchayat Samiti  belonging to Category II is entitled to Rs. 6/-  per diem when a Member of the. .Samiti belonging to Category  II is  only  entitled  to Rs. 4/- per diem.  The  argument  was that  there was no explanation for payment at a higher  rate to the Chairman and, consequently, it must be held that  the Chairman  must be making gain out of the payment to  him  of daily  allowance.  We are unable to accept this  submission. The  daily  allowance is invariably fixed  after  estimating what  extra expenditure in a day the person concerned  would have  to  incur.  A Chairman, it appears,  was  expected  to incur more expenditure per day than a Member, and that seems to  be the reason why a higher rate of daily  allowance  was prescribed  for him. In any case, such a payment is  clearly meant only to cover additional expenditure and out-of-pocket expenses  of  the Chairman and, while no evidence  has  been advanced  to show that out of the amount received  as  daily allowance  the  Chairman   will in fact  invariably  make  a saying,  it cannot be held that  this  payment would  result in gain so as to make the office an office of profit.     In the course of his submissions, learned counsel  tried to  urge that the payment of travelling allowance and  daily allowance under rules 3 to 7 was in addition to the  payment of the consolidated monthly allowance under r. 3 and payment of two sets of aLlowances must necessarily result in  profit to  ’the  payee.   The  argument  proceeds  on  a   complete misunderstanding of the Rules.  Rule  3 only covers  payment to  compensate a Chairman for journeys performed by him  for his  official  duties  within  the  district  in  which  the Panchayat  is  situated,  while rules 4 to  7  govern  cases where  the journey is performed outside the district.   Rule 3,  and  rules  4 to 7  are,  therefore,  complementary  and exclusive of each other.  In fact, r. 5 makes it clear  that the  mileage  allowance  is  admissible  only  for  journeys undertaken outside the district, while, in respect of  daily allowance,  the  fact that the right to receive  it  accrues only  when  the  journey is outside  the  district  is  made manifest  by  laying  down that the receipt  of  this  daily allowance  is to be subject to the provisions of r. 3.   The submission that the payment under rules         429 4  to 7 is in addition to the payment under r. 3  is,  thus, clearly misconceived.     In  this connection, learned counsel drew our  attention to   a decision of this Court in Ravanna Subanna   v.   G.S. Kaggeerappa(1) where dealing with the provision relating  to this disqualification the Court held:                      "The  plain meaning of  the  expression               seems to be that an office must be held  under               Government   to   which   any   pay,   salary,               emoluments or allowance is attached. The  word               "profit" connotes the idea of pecuniary  gain.               there is really a gain, its quantum or  amount               would not be material; but the amount of money               receivable by a person in connection with  the               office  he holds may be material  in  deciding               whether the office really carries any profit. This principle, on the finding arrived at by the High  Court and  affirmed  by  us  above, is of  no  assistance  to  the appellant.   It  is clear that the appellant has  failed  to establish that the allowances payable under rules 3 to 7  of the  Rules result in any pecuniary gain to a Chairman  of  a Panchayat Samiti and, consequently, there is no question  of

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any disqualification arising. The appeal fails and is dismissed with costs. R.K.P.S.                                   Appeal dismissed.  (1) A.I.R. 1954 S.C. 653 at p. 656. L 12Sup. C. 1.68--13 430