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Charitable Society Members Running College Are "Public Servants"

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 17-Dec-2024

Source: Kerala High Court 

Why in News? 

Recently, the Kerela High Court in the matter of A. K. Sreekumar v The Director and Others (2024) has held that members of charitable society running private college are "Public Servants.” 

What was the Background of the A. K. Sreekumar v The Director and Others Case?  

  • A.K. Sreekumar (petitioner) filed a complaint seeking investigation into alleged corruption and misappropriation at Nazreth Pharmacy College in Kerala. 
  • The college is run by a charitable society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. 
  • Initially, the college was affiliated with Mahatma Gandhi University and later became affiliated with Kerala University of Health Sciences, Thrissur. 
  • The college received a "No Objection Certificate" from Kerala's Health and Family Welfare Department and sanction from the All India Council for Technical Education. 
  • The petitioner's complaint named nine suspects and alleged they: 
    • Denied admission to eligible students in government-allotted seats 
    • Sold these seats to private students after collecting large capitation fees 
    • Misappropriated the collected money for personal gain 
    • Caused financial loss to the society 
  • The alleged actions were claimed to violate: 
  • When the Vigilance and Anti-corruption Bureau (VACB) didn't act on the complaint, the petitioner approached the Court of Enquiry Commissioner and Special Judge, Kottayam. 
  • The VACB claimed they couldn't investigate without approval under Section 17A of the PC Act. 
  • The Special Court dismissed the petitioner's request for investigation and asked for Section 17A approval from competent authorities. 
  • When VACB sought this approval, the Government decided no vigilance enquiry was needed since the allegations were already being considered by the Admission Supervisory Committee for Medical Education. 
  • The petitioner then challenged this government order before the Kerela High Court in the present case. 

What were the Court’s Observations? 

  • The Kerela High Court made the following observations:  
    • On Public Duty and Public Servants: 
      • The court emphasized that 'public duty' must be connected to a State law or valid governmental directions. 
      • A person performing public duty must be under positive command of State law or valid executive direction. 
      • The focus should be on the office and duties performed rather than the position itself. 
    • On Education and Public Duty: 
      • The court noted that admission and fee fixation at the institution are governed by Kerala Medical Education Act, 2017. 
      • The management's duties are based on positive law of the State and governmental directions. 
      • The court concluded that the accused persons were the final authority for admissions and fee collection, making their duties "public duty" 
    • On Section 17A of the PC Act Approval: 
      • The court found that prior approval under Section 17A was not required in this case. 
      • The alleged acts were not related to recommendations or decisions taken by public servants in discharge of official duties. 
    • On Definition of Public Servant: 
      • The court noted that the legislative intention was to provide a general definition rather than an exhaustive list. 
      • The focus should be on public duties performed rather than positions held. 
      • Any duty where the State, public, or community has interest qualifies as public duty. 
    • On Corruption in Educational Institutions: 
      • The court referenced Supreme Court observations about corruption threatening constitutional governance. 
      • It emphasized that anti-corruption laws should be interpreted to strengthen the fight against corruption. 
    • On Government's Decision: 
      • The court found the government's decision (that no vigilance enquiry was needed since matter was before Admission Supervisory Committee) to be inadequate. 
      • The court observed that the petitioner had alleged cognizable offenses that warranted investigation. 
    • On Scope of Investigation: 
      • The court determined that a preliminary enquiry was necessary despite the matter being before the Admission Supervisory Committee. 
      • It emphasized that the investigation should proceed according to law. 
  • These observations led the High Court to quash the government order and direct the Vigilance and Anti-corruption Bureau to conduct a preliminary enquiry into the matter. 

Who is a Public Servant Under PC Act? 

  • PC Act, 1988: 
    • The PC Act 1988 is an act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India. 
    • Section2(c): Public Servant means. 

(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty; 

(ii) any person in the service or pay of a local authority; 

(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956); 

(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; 

(v)a ny person authorized by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court; 

(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority; 

(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; 

(viii) any person who holds an office by virtue of which he is authorized or required to perform any public duty; 

(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956); 

(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board; 

(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a university or any other public authority in connection with holding or conducting examinations. 

What is Section 17A of PC Act? 

  • This section states about Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties as: 
  • Basic Prohibition 
    • No police officer can conduct any enquiry, inquiry, or investigation 
    • This applies to offenses allegedly committed by public servants under this Act 
    • The prohibition applies only when the alleged offense relates to: 
      • Recommendations made by the public servant. 
      • Decisions taken by the public servant. 
      • Actions within official functions or duties. 
  • Requirement of Previous Approval 
    • For Union Government Employees 
      • Applies to persons employed in connection with Union affairs. 
      • Approval needed from Union Government. 
      • Covers both current and former employees at time of alleged offense. 
    • For State Government Employees 
      • Applies to persons employed in connection with State affairs. 
      • Approval needed from State Government. 
      • Covers both current and former employees at time of alleged offense. 
    • For Other Public Servants 
      • This applies to all other categories of public servants. 
      • Approval needed from authority competent to remove them. 
      • Authority status determined as of time of alleged offense. 
  • Exceptions (First Proviso) 
    • No approval required for arrest on the spot 
    • Must involve either: 
      • Accepting undue advantage. 
      • Attempting to accept undue advantage. 
    • Can be for self or any other person. 
  • Time Limits (Second Proviso) 
    • Initial Decision Period 
      • Authority must convey decision within 3 months 
    • Extension 
      • Can be extended by 1 additional month 
      • Extension requires: 
        • Reasons in writing 
        • Recording by concerned authority 
  • Key Elements for Application 
    • Must involve a public servant. 
    • Must relate to official functions. 
    • Must connect to recommendations or decisions. 
    • Must be under PC Act