# KARBHARI BHIMAJI ROHAMARE v. SHANKER RAO GENUJI KOLBE & ORS

- **Citation:** [1975] 2 S.C.R. 753
- **Court:** Supreme Court of India
- **Decided:** 1974-11-18
- **Case number:** Civil Appeal No. 2365 of 1972
- **Bench:** A. A.LAGmISWAMJ, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/karbhari-bhimaji-rohamare-v-shanker-rao-genuji-kolbe-ors-6239
- **Pages:** 8

## Headnote

753
~o/ding office of profit under the State Govt. membership of wage toardWhether office of profit-Constitution Articles 102 a11d 191.
The first respondent was nominated as a Member of the Wage Board constituted under the provisions of the Wage Board Act.
During the time the
first respondent was a Member of the Wage Board. he filed his nomination for
contesting election to the Maharashtra State Legislative Assembly. The appellant contended that the membership of the Wage Board is an office of profit
11!1der _the State ~emment and that, therefore. the respondent No. 1 was
disqualified for election. Respondent No. 1 was entitled to draw travelling
allowanee and daily allowance at the mte prescribed in Scale I of the Bombay
Civil Service Rules.
He was also entitled to receive Rs. 25 /- per day of the
meeting of the Wage Board as honorarium.
HELD : It was not disputed that the daily allowance and travelling allowance payable to the members would not make the membership of the Wage
Board an office of profit. The whole controversy ,centres round the honorarium payable ·to the members of the Wage Board. The matter must be
considered as & matter of substance rather than of form.
The daily allowance
was Rs. 18 whether the meeting was held at Bombay. Poona. Aurangabad or
Kopargaon. The first respondent's evidence was that when he went to Bombay
for attending the meetings of the Wage Bo&rd he had to spend Rs. 20/- as
Taxi fare, Rs. 25 /- for breakfast. lunch and dinner. and Rs. 40/- for lodging.
He seems to have been staying in a modest hotel. After an elaborate discmsion of the entire evidence the learned High Court Judge accepted the evidence
of the first respondent that he had to spend Rs. 20/- for taxi fare and that
hotel charges for a common room varied from Rs. 15/- to Rs. 16/- and for
a single room from Rs. 28/- to Rs. 30/- and that the aggregate of'the honorarium and the daily allowance payable to the first respondent was hardly sufficient to meet the personal expenditure incurred for the purpose of attending
the meeting in Bombay and simply because he was paid both the honorarium and
daily allowance it coold not be said that he was .making any pecuniary gain
thereby. The question has to be looked at in a realistic way.
The payments
made to first respondent cannot ·be a sou.rce of profit unless he stayed with
some friends or relatives or stayed in a Dharamshala. The first respondent,
therefore, did not hold an office of profit. The case of Mahadev v. Shantibhai
distinguished. [756D; 758E-F; 759A-G]
CML APPELLATE JURISDICTION: Civil Appeal No. 2365 of 1972.
Appeal_ from the J?dgment & Order dated the 22nd September,
1972 of the Bombay High Cour. 1 E. P. No. 1 of 1972.
G
V. M. Tarkunde, D. V. Patel, K. Raj Chaudhry, K. S. Bhadti and
H
S. L. Seti.a, for the appellant.
V. S. Desai, S. B. Wad and M. S. Ganesh, for respondent No. 1.

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KARBHARI BHIMAJI ROHAMARE
v.
SHANKER RAO GENUJI KOLBE & ORS.
November 18, 1974
[A. A.LAGmISWAMJ AND R. S. SARKARIA, JJ.]
753
~o/ding office of profit under the State Govt. membership of wage toardWhether office of profit-Constitution Articles 102 a11d 191.
The first respondent was nominated as a Member of the Wage Board constituted under the provisions of the Wage Board Act.
During the time the
first respondent was a Member of the Wage Board. he filed his nomination for
contesting election to the Maharashtra State Legislative Assembly. The appellant contended that the membership of the Wage Board is an office of profit
11!1der _the State ~emment and that, therefore. the respondent No. 1 was
disqualified for election. Respondent No. 1 was entitled to draw travelling
allowanee and daily allowance at the mte prescribed in Scale I of the Bombay
Civil Service Rules.
He was also entitled to receive Rs. 25 /- per day of the
meeting of the Wage Board as honorarium.
HELD : It was not disputed that the daily allowance and travelling allowance payable to the members would not make the membership of the Wage
Board an office of profit. The whole controversy ,centres round the honorarium payable ·to the members of the Wage Board. The matter must be
considered as & matter of substance rather than of form.
The daily allowance
was Rs. 18 whether the meeting was held at Bombay. Poona. Aurangabad or
Kopargaon. The first respondent's evidence was that when he went to Bombay
for attending the meetings of the Wage Bo&rd he had to spend Rs. 20/- as
Taxi fare, Rs. 25 /- for breakfast. lunch and dinner. and Rs. 40/- for lodging.
He seems to have been staying in a modest hotel. After an elaborate discmsion of the entire evidence the learned High Court Judge accepted the evidence
of the first respondent that he had to spend Rs. 20/- for taxi fare and that
hotel charges for a common room varied from Rs. 15/- to Rs. 16/- and for
a single room from Rs. 28/- to Rs. 30/- and that the aggregate of'the honorarium and the daily allowance payable to the first respondent was hardly sufficient to meet the personal expenditure incurred for the purpose of attending
the meeting in Bombay and simply because he was paid both the honorarium and
daily allowance it coold not be said that he was .making any pecuniary gain
thereby. The question has to be looked at in a realistic way.
The payments
made to first respondent cannot ·be a sou.rce of profit unless he stayed with
some friends or relatives or stayed in a Dharamshala. The first respondent,
therefore, did not hold an office of profit. The case of Mahadev v. Shantibhai
distinguished. [756D; 758E-F; 759A-G]
CML APPELLATE JURISDICTION: Civil Appeal No. 2365 of 1972.
Appeal_ from the J?dgment & Order dated the 22nd September,
1972 of the Bombay High Cour. 1 E. P. No. 1 of 1972.
G
V. M. Tarkunde, D. V. Patel, K. Raj Chaudhry, K. S. Bhadti and
H
S. L. Seti.a, for the appellant.
V. S. Desai, S. B. Wad and M. S. Ganesh, for respondent No. 1.
The Judgment of the Court was delivered by
.
ALAGIRISWAMI, J. In the election to the Maharashtra State Legislative Assembly held on March 7, 1972 the 1st respondent was declared elected from Shirdi Constituency. The appellant, a voter from
that constituency filed an election petition .questioning election of the
1st respondent on two grounds : one was that the successful candidate
154
SUPREME COURT REPORTS
(1975]2 s.C.R.
had committed several corrupt practices, the other that the election, was
liable to be set aside because he 'Yas disqualified for election as he was
holding an office of profit under the State Government as a member of
the Wage Board for the Sugar'Industry constituted by the Government
of Maharashtra under section 86-B of the Bombay Industrial Relations
Act, 1946. The only question argued before this Court was the 2nd
ono.
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.
The Wage Board to which the 1st rnspondent was nominated as a
member on 13th April 1971 was constituted under the provisions of
Chapter 12A of that Act int:oduced by the Amending Act No. 43 of
1948. Under 1~ection 86C the State Governmen~ may make reference
to the Wage Boards for decision of any industrial matter of industrial
dispute. Under section 86G 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 86H. Section 86I provides for review of the order or decision,
by the Wage Board. Section 86J confers certain powers of superinitendence on the Industrial Court over all Wage Boards.
The first question to be decided is whether the membership of the
Wage Board is an office under the State Government. In Maulana
Abdul Shakur v. Rikhabchand & Anr. (1958 SCR 387 ® 394) this
Court held:
"The power .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 revenue are important factors in determining
whether that person is holding an office of profit under the
Government."
Leaving aside 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) this Court
pointed out that :
"An office 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 be held."
There is no doubt that in this case the office of the membership of the
Wage Board should be deemed to have bt:en held by the 1st respondent
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K. BHIMAJl v. Q. RAO (Alagiriswami, /,)
755
under the Government of Maharashtra.
In Gurugobinda B~u v.
Sankari Prasad Ghosal & Ors, [1964(4) SCR. 311] it was held that:
"For holding ah 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
between them."
In that 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 on India. In
Shivamurthy Swami v. Agadi Sanganna Andanappa [1971 (3) SCC 870]
the indicia of an office held under the Government were put this :
". , . . the 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 : ( l) Whether the Government tpakes the a,ppointment; (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 ?"
Again, leaving 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 seriouslv disoutei! bv the 1st reqoondent. The only serious dispute is whether that office was an office of
profit.
The first Wage Board for Sugar Industry was constituted in the
year 1956 by a Qovemment notification Development Department No.
BIR-2355, dated March 20, 1956. The Wage Board consisted of three
members. By a notification dated May 16, 1967, a new Wage Board
for the Sugar Industry was constituted consisting of five members. By
a notification dated Aoril 13. 1971 the 1st respondent was nominated
as a member of the Wage Board to represent the employers on the
Wage Board in place of one E. V. Wikhe who resigned his. membership.
That notification itself does not mention the terms of appointment.
To the notification constituting the Wage Board in the }rear 1956 a
resolution was also appended directing that the non-official members
of the Wage Board should be paid honorarium at the rate Of Rs. 25fper day of the meeting of the Wage Board and that they should also be
allowed to draw travelling allowance and dailv allowance at the rate
.prescribed in Scale T in Rule 1 ( 1) (b) in section T of Appendix XLII-A
of the :Qombay Civil Services Rules (Vol. II). Such a. resolution
756
SUPREME COURT REPORTS
[1975] 2 S.C.R.
regarding honorarium and il:llowances payable to' the members was not
part of the 1967 notification creating a new Wage Board, but apparently the members are paid only on the basis of the 1956 resolution.
There is no dispute that the daily allowance and travelling allowance
payable to the members would not make the membership of the Wage
Board an offi<;e Of profit.
That comes within the definition of the
words "compepsl!tory allowances" found in item 11, Schedule I read
with section 2 ·of the Bombay Legislature Members (Removal of Disqualifications) Act, 1956. Item 11 in Schedule I reads as follows :
"11. The office Of the Chairman or member of any committee or body appointed by the Central or State Government;
Provided that the Chairman or any member of such committee or body does not receive any remuneration other than
the compensatory allowance. Explanation : For the purpose
of this entry, compensatory allowance shall mean the travelling allowance, the daily allowance or such other allowance
which is paid to the holder of the office for the purpose of
meeting the persona] expenditure in attending the meeting
of the committee or body or in performing any other functions as the holder of the said office."
The whole controversy centres around th~ honorarium payable to
the members of the Wage Board. It is contended on behalf of the
appellant that item 11 specifically lays down that the compensatory
allowance shall mean the travelling allowance, the daily allowance or
such other allowance which is paid to the holder of the office for the
purpose of meeting the personal expenditure in attending the meeting
of the committee or body or in performing any other function as the
holder of the said office, and honorarium which is not mentioned ther•e .
cannot be brought within the meaning of the words "such other allowance" found in that item as it is not an allowance. Reference is made
to the dictionary meaning of the word 'honorarium' and it is said that
while the daily allowance is expected to meet the expenses of the member concerned while attending the meeting of the Board, the honorarium
is in the form pf a fee for performing his duties on those days. Thi~
Shorter Oxfordl Dictionary gives the meaning of the word 'honorarium'
as an honorary reward, a fee for professional service rendered, whifo
one of the meanings of the word 'salary' is, fixed payment made periodically to a person as compensation for regular work, remuneration for
services rendered, fee, honorarium.
Thus. in one aspect honorarium
and fee are used almost as though they are interchangeable terms. Even
so, what was paid to the 1st respondent cannot be said to be a salary.
It was not a fixed payment made periodically as compensation
for
regular work. We do 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 assence 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 parti··
cular days Ort.Which the .meetings of the Wage Board were held.
We:
!lre not a~Ie to accept this contention.
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K. BHIMAJI v. s. R•.o \Alagiriswami, /.)
757.
In this connection various ·decisions relied upon by the appellant
are themselves of interest. In Ravanna Subanna v. G. S. Kaggeerappa
(AIR 1954 SC 653) a person holding office of Chairman of Taluk
Development Committee was entitled to a fee of Rs, 6 / · for each sitting
he attended.
This Court held that it could reasonably be inferred
that the fee of Rs. 6/• was not meant to be a payment by way of remu·
neration but it was given for the out-Of-pocket expenses which the
Chairman had to incur for attending the meetings of the committee.
The point to be noted is that though it was termed a fee it was con·
sidered to be given for meeting the out-of-pocket ~xpenses of the member. It was observed in that decision that :
"The word "profit" connotes the idea of pecuniary gain.
If 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 decid·
ing whether the office really carried any profit."
The stress here is on the pecuniary gain.
The decision in Umrao Singh v. Darbara Singh & Ors. [1969(1)
SCR 421] is a very important one. In that case the successful cancli,
date was the Chairman of a Panchayat Samiti. He was paid Rs. 100/·
a month as 'consolidated allowance fqr performing all official duties
and journeys concerning the Panchayat Samitis 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'. He was also granted mileage
and daily allowance for journeys performed for any official work outside the district. The daily a!lowance was payable at the rate of Rs. 6/ ·
per d_ay of official work performed outside the districts, The rules,
however, made provision as to the circumstances under which he was
entitled to full daily allowance or half daily allowance as the case may
be. This Court referred to the consolidated allowance and pointed out
that it was· not salary, remuneration or honorarium but was clearly an
allowance paid for the purpose of ensurin~ that the Chairman of a
Panchayat Samiti did not. have to spend monev out of his own pocket
for the discharge of his duties. This Court further held that 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. Even with regard to the daily allowance and travelling allow- ·
ance payable when the Chairman had to perform his duties outside the
district, this Court pointed out there was no evidence from which an
inference may be drawn that the amount received by a Chairman for
travelling allowance or dailv allowance was in excess of the amount of
expenditure which he would have to incur for the purpose of performin,!? the journeys in order to discharire his official duties. It was ur,!?ed
before this Court that the pavment' of travellin,!! allowance and daily
allowance was in addition to the payment of the consolidated monthly
allowance and the oavment of two sets of allowances must necessarily
result in profit to the "payee. After pointing out the different purooses
for which these two sets of allowances were meant this Court finally
758
SUPREME COURT REPORTS
[1975.] 2 s.c.R.
held that the :ippcllant had failed to establish that the allowances payable resulted in any pecuniary gain to the Chairman. The whole purport of the dtciSion is thus whether what was received by the member
was in excess of the expenditure which he would have to incur for the
purpose of p¢rformin1t the journeys in order to discharge his official
duties, the bmden being on those who allege it.
In Shiva111urthy Swami v. Agadi Sanganna Andanappa (supra) the
only relevant instance was that of his m~mbership of Khadi & Villa.ge
Industries Board. In that capacity he was entitled to a sitting fee of
Rs. 16/· per day on the days he attended the meetings of the Board or
any of its committees. But he could not draw the sitting fee as well
as the daily allowance and had to draw only one of the two. The
sitting fee was held by thfs Court to be a compensatory allowance.
The decision is not, therefore, of such relevance to the facts of this
case.
Reforence 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 ta the number of meetings he attended or the
place:; at which he at~ended the meetings because the question has to
be decided not on whether a particular member made a profit out of the
pay:nents made to him but on what was the effect of the payment11 in
general. The daily allowance is not payable for a bait upto six hours,
and for halt exceeding six hours but less than 12 hours only half the
daily allowance was payable. The daily allowance was Rs. 18/- whether the mec:ting was held at Bombay, Poona, Aurangal:iad or Kopargaon. The learned Judge of the High Court has pointed out that for
attending th~ 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 tho charging of daily allowance depended upon the
arrival and departure of the trains. The 1st respondent's 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/· for break-fast,
lunch and dinner and Rs. 40/ for lodging, tha_t if he bad a single room
for the stay in a Jotel he used to pay Rs. 30/- per day. He seems to
hav~ ::>een !itaying in a modest hotel which charged Rs. 15f- to Rs. 16/-
for a common room and Rs. 28/· to Rs. 30/- for a single room induding 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 he1d, 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
ar.ange for the lunch at a place in the vicinity of the office wher1~ the
Board meetings are held and pay for it. After an elaborate discussion
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759
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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
were 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 lst respondent was hardly sufficient to meet
the personal expenditure incurred for the purpose of 'attending the
meeting 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 leoarned Judge's conclusion.
The question has to be looked at in a realistic way: Merely because
part of the payment made to the 1st respondent is !=al)ed honorarium
and part of the payment daily alloW'ance, 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 Jive like a sanyasi and stay in a dharamshala and dep~nd 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 Singh's case.
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 no~ divorced
from reality.
We are thus satisfied that the 1st respondent did not
hold an office of profit.
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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
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give timely intimation of the same and if no instructions regarding any
particular case were received biy him he was expected to appear in
the court and obtain an adjournment. He was to be paid Rs. 5 I·
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SUPREME COURT REPORTS
[1975] 2 S.C.ll.
for every sue? adjourment. There was no question there of his incurring any expenditure. A lawyer would in the normal course be atte,nding the cowts and if he discharges some duties while so attendillg
and gets paid for it clearly he derives a profit thereby and the decisfon
holding that he was . holder of an office of profit is clearly distinguishable from the fltcts of this case.
In the result the appeal is.dismissed .. with costs. The S.L.P. (Civil)
No. 2605 of 1972 is also dismissed.
P.H.P.
Appeal dismissed.
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