Office of Profit Debate
Office of Profit
"I cannot rule as well as be ruled." This is how legal experts have decided to coin the term, " holding an office of profit." With Sonia Gandhi putting in her papers, both to the membership of the Rajya Sabha and to the Chairpersonship of the National Advisory Council, the question that arises now is whether or not she could have avoided disqualification, had she tendered her resignation to the post (office of profit) in question?
Legal experts say there is no way by which she could have avoided disqualification, since she had been receiving remuneration while she was sitting as a Lok Sabha MP. The very fact that she continued to receive remuneration from the office of profit as a Rajya Sabha member is sufficient for disqualification, says Pramila Nesargi, senior counsel.
“Let us assume that she had not received any remuneration from the office of profit”, K N Phanindra, advocate and legal advisor to the State Election Commission says, " even this would not have saved a person from disqualification. If she had refused salary or remuneration, that by itself would not have saved her and does not change the definition of office of profit. The very fact that the office has been classified as an office of profit is sufficient to attract disqualification. The very fact that she continued as MP despite holding an office of profit, itself amounted to disqualification under Article 102 (1) (a) of the Constitution”.
Role of the Election Commission:Experts say that the Election Commissioner is not the authority to take a decision on this subject. He plays the role of an inquiry officer, who has to submit a report to the president upon a reference being made to him. Phanindra says for the Article 103 of the Constitution mandates that the President shall make a reference to the election commission.
Article 102 (1) (a) states that a person shall be disqualified from membership of the house if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder.
Article 103, which deals with the decision on questions as to the disqualification of the members states that the matter may be referred to the President and his decision shall become final. However under clause 2 of Article 103 it stated that before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.
In case of members of the State assembly, Article 191 would prevail and the decision of the Governor shall be final. In this case also the opinion of the State Election Commission shall be sought.
Office of profit:Although the Constitution does not define Office of Profit, the Supreme Court in the Kantha Kashuriya Case said, "Office of profit has to be construed as denoting a position where the position held is an office.
Test case
Whether the Govt makes the appointment?
Whether the Govt has the right to remove or dismiss?
Whether the Govt pays the remuneration?
what are the functions of the holder?
Does he perform them for the government?
Does the government exercise any control over the performance of those functions?
Indicate what status quo is before passing an order says SC26sc-rules
It is not proper to pass an order directing parties to maintain status quo at the initial stage of litigation, without indicating what the status quo is.
The Supreme Court made these observations while dealing with a civil appeal from Calcutta in which the plaintiff sought for a declaration of his status as a tenant of the suit property.The trial court in this matter issued emergent notices, which was challenged before the District Court. The District Court ordered status quo during the pendency of which the defendant is stated to have dispossessed the plaintiff.The same was challenged and the District Court then ordered temporary injunction. The High Court, which heard the appeal, set aside the order and remitted the matter back. The district court stated that the plaintiff was dispossessed and confirmed the order of injunction. The matter went back to the High Court, which ruled in favour of the plaintiff.
Following this the defendant moved the Supreme Court. A Division Bench comprising S B Sinha and Justice P K Balasubramanyam while allowing the appeal set aside the order of the High Court and remitted the matter back to the trial court to dispose of the suit expeditiously.
While remitting the matter back, the court made certain observations on grant of status quo orders and also on the grant of temporary injunctions.The Bench also took note of the events that followed in the wake of status quo order passed without the trial court indicating what the status quo is."Interim mandatory injunction is granted if the prima facie materials clearly justify a finding that the party to a litigation has altered status quo and the interest of justice demanded status quo ante has to be restored by granting interim mandatory injunction. If interim mandatory injunction is granted without examining the materials correctly and giving a proper finding regarding possession and dispossession, decision granting mandatory injunction would be wrong, " the Bench observed.
Further the Supreme Court stated that if interim mandatory injunction is granted without necessary findings, it would be a question of jurisdiction of the court for the purpose of Article 227 of the Constitution of India. When the court asks itself a wrong question or approaches the question in an improper manner, even if the court comes to a finding of fact, it would be amenable to correction under Article 227.
Disqualification of MPs and MLAs - Office of Profit
The biggest issue in the nation today is the one pertaining to the disqualification of MPs and MLAs holding an office of profit. In this context it would be interesting to note that the Government has the power to remove the disqualification with retrospective effect. In other words, the office of profit can be declared as a non profit one with a retrospective effect.
This position was even upheld by the Supreme Court in the Katha Kathuria Case in 1969. Interestingly, this is a topic of debate and legal experts question as whether this power should be vest upon the government.
Justice M Hidayatullah, the then Chief Justice of India while dealing with a case to this effect remarked in the very first paragraph of his judgment, "We regret our inability to agree that the appellant Kanta Kathuria was not holding an office of profit under the Government of Rajasthan when she stood as a candidate for election to the Rajasthan Legislative Assembly from the Kolayat Constituency”.
Kanta, an advocate practicing at Bikaner, contested the election and was declared elected. One of the defeated candidates filed the election petition on the date of her nomination and election she was disqualified to be chosen to fill the seat as she held the office of Special Government Pleader, which was on office of profit under the Government of Rajasthan. The High Court set aside her election. During the pendency of the appeal before the Supreme Court, the State Government brought in an ordinance stating that the office of pleader was not an office of profit (with retrospective effect). The Supreme Court while setting aside the order of the High Court upheld the power of the legislature to pass such an ordinance.
Period of disqualification:Experts state that this is another debatable point. K N Phanindra, advocate says that there is no bar on the person to contest the elections immediately once disqualified for holding an office or profit. He stated that the law in this regard is silent.
K M Natraj, advocate shares a similar view. He says one has to interpret Article 102 of the Constitution, which specifically states, " If he holds an office of profit." It is only when he is holding such an office of profit that shall be liable for disqualification. So the period of disqualification is as long as he holds the office. It cannot go beyond that.
CONCILIATION
In the previous issues we had discussed the various provisions relating to Arbitration, as a means of dispute resolution. In this issue let us take a glimpse at Conciliation as a means of settlement of disputes.
Conciliation is a confidential, voluntary and private dispute resolution process in which a neutral person helps the parties to reach a negotiated settlement. Conciliation is a flexible alternative to arbitration and litigation, as it can be adopted to resolve disputes, as it is an entirely voluntary process. Conciliation as a means of settlement of disputes, has been given statutory recognition by incorporating provisions in Sections 61to 81 of Part III of the Arbitration and Conciliation Act, 1996. The Law relating to conciliation as contained in Part III of the Arbitration and Conciliation Act is adopted on the pattern of UNCITRAL Conciliation Rules.
Any disputes arising out of a legal relationship may be settled by conciliation. Apart from commercial transactions, the mechanism of Conciliation can also be adopted for settling various types of disputes such as labor disputes, service matters, antitrust matters, consumer protection, taxation, excise etc.
COMMENCEMENT OF CONCILIATION PROCEEDINGS:
The Arbitration and Conciliation Act, 1996 enunciates the procedure that has to be adhered, for the initiation of the Conciliation proceedings. The party desirous of initiating the conciliation proceedings has to send to the other party, a written invitation to conciliate identifying the subject of the dispute. The Conciliation proceedings shall commence only when the other party accepts in writing the invitation, if he rejects, there will no conciliation proceedings.
PROCEDURE FOR CONCILIATION:· The conciliator, a neutral third party appointed by the parties to help them to settle their dispute, may request each party to submit a statement to the conciliator and the other party, setting out the general nature of the dispute and the points at issue.· The conciliator is to be guided by the principles of objectivity, fairness and justice. He has to take into consideration the rights and obligations of the parties, trade usage; and circumstances surrounding the dispute, including previous business practice between the parties.· At any stage, the conciliator may propose a settlement even orally, and without stating the reasons for the proposal.· If the conciliator finds that there exist elements of a settlement, which may be acceptable to the parties, then he shall formulate the terms of possible settlement and submit the same to the parties for their observation.· On receipt of the observations of the parties, the conciliator may re-formulate the terms of a possible settlement in the light of such observation.· If ultimately a settlement is reached, then the parties may draw and sign a written settlement agreement.
SETTLEMENT AGREEMENTThe parties on reaching on a settlement of the dispute, they may draw up and sign a written agreement known as Settlement Agreement. Once the parties sign the Settlement Agreement, it shall be final and binding on the parties and persons claiming under them respectively. The conciliator shall authenticate the settlement agreement. The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal.
TERMINATION OF CONCILIATION PROCEEDINGSThe conciliation proceedings shall be terminated:· By the signing of the settlement agreement by the parties, on the date of the agreement; or· By a written declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration; or · By a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or · By a written declaration of a party to the other party and the conciliator, if appointed to the effect that the conciliation proceedings are terminated, on the date of the declaration.
RESORT TO ARBITRAL OR JUDICIAL PROCEEDINGSThe parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject matter of the conciliation proceedings except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.
Courtesy: Vijay Times News
posted by GODSPEED at 11:58 PM
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