Report No. 50
8. View taken in the Supreme Court case.-
The Gujarat High Court held that the context of the whole of the ninth clause1 indicated that a connection with the Government was necessary, in respect of the performance of a public duty. In this case, though the accused happened to be a Government servant, the particular work in connection with which he accepted the money was not done by him in that capacity. The Supreme Court found no "infirmity" in this reasoning of the High Court.
1. Para. 6, supra.
9. Clause nine of section 21 referred to an "officer", and the person who is to be regarded as an "officer" must hold some office. The holding of "office" implied charge of a duty attached to that office. The person who was remunerated by fee or commission must be an "officer". Therefore, the High Court said, the use of the word "officer", read in the context of the words immediately preceding the last part of clause nine, would indicate that the remuneration contemplated was remuneration by the Government. In this case, that was not the position. The Supreme Court expressly approved of this reasoning of the Gujarat High Court. The Supreme Court added-
"A University Examiner cannot be considered to hold an office in the sense in which that word has been understood and employed in the Ninth clause. It is clear from the provisions of the Gujarat University Act, 1949, that there is no such condition that only that person can be appointed as Examiner who is the holder of an office".
10. As regards the twelfth clause of section 21 (as it then stood) also, the decision1 that the accused was not holding an office, was conclusive. In the course of the discussion, the Supreme Court also stated that it was a moot point whether a University was a "local authority" as defined in the General Clauses Act.2
1. Para. 9, supra.
2. Section 3(31), General Clauses Act, 1897.