Patna High Court - Orders
Faiyaz Ahmad vs State Of Bihar &Amp; Ors on 13 April, 2011
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. WJC No.636 of 2009
Faiyaz Ahmad, s/o Kamruzama, Secretary, Millat
Teachers Training College, Madhubani
..... PETITIONER
VERSUS
1. The State of Bihar through the Additional Director
General of Police, Vigilance Investigation Bureau, 6,
Circular Road, Patna- 800001
2. The Principal Secretary, Human Resources
Development Department, Government of Bihar, Patna
3. Sri Mritunjay Kumar Choudhary, Sr. Deputy
Superintendent of Police- cum- Inquiry Officer,
Vigilance Investigation Bureau, 6, Circular Road, Patna-
800001
.... RESPONDENTS
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For the Petitioner : M/s B. P. Pandey, Sr. Advocate &
Jagannath Singh, Advocate
For the State : M/s Lalit Kishore, Sr Advocate &
Rabindra Kr. Priyadarshi,
AC to AAG I
For Vigilance : Arvind Kumar, Spl. PP (Vigilance)
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19 13 .4.2011Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Vigilance Investigation Bureau.
2. Petitioner is Secretary of Millat Teachers Training College, Madhubani which is claimed to be a minority unaided institution established in the year 1990. It claims to have recognition of the State Government -2- since the academic session 1990-92. It is understood that the petitioner claims to have affiliation of its institution with Lalit Narayan Mithila University (hereinafter referred to as „the University‟) till 1995-96 and thereafter it got recognition of the National Council for Teacher Education, Eastern Regional Committee since the session 1996-97 in the light of provisions of NCTE Act, 1993 which came into force from 1.7.1995.
3. Petitioner claims that since it is unaided minority institution imparting training to teachers to enable them to appear in the examination for B. Ed. degree, it does not perform any "public duty" and does not come within the definition of "public servant" as defined under Section 2 of the Prevention of Corruption Act, 1988 (hereinafter referred to as „the PC Act‟). This is the basis for challenging a letter bearing no.7096 dated 6.7.2009 contained in Annexure- 4 series whereby respondent no.3, Sr. Deputy Superintendent of Police- cum- Inquiry Officer, Vigilance Investigation Bureau has requested the petitioner to make available information and documents mentioned in letter no.6555 dated -3- 3.6.2009 (Annexure-1) for holding inquiry pursuant to letter no.866 dated 27.5.2006 whereby respondent no.2, the Principal Secretary, Human Resources Development Department, Government of Bihar notified the Additional Director General of Police, Vigilance Investigation Bureau, Bihar, Patna to hold inquiry in respect of privately managed B. Ed. training colleges in reply to and context of letter no.140 of respondent no.2 dated 20.3.2006 (Annexure- A).
4. Earlier this writ petition was considered by a learned single Judge on 6.10.2010. In the order passed on that date the learned single Judge noted all the submissions advanced on behalf of the petitioner which are to the effect that petitioner does not perform any "public duty" as defined under Section 2 (b) of the PC Act nor does it fall under the definition of "public servant" defined under Section 2(c) of that Act and, therefore, the Vigilance Investigation Bureau will have no jurisdiction to take up inquiry or investigation involving the petitioner‟s institution. The other submission is that the letter or notice under challenge can -4- be issued only under Section 91 of the Code of Criminal Procedure (hereinafter referred to as „CrPC‟) and such power cannot be exercised till a regular case is instituted by the police. The learned single Judge found the issues raised to be of significance and hence, referred the matter to Division Bench for consideration.
5. The same issues of law were raised before us by learned senior counsel appearing for the petitioner. He also raised a plea that now when the NCTE has found the petitioner‟s institution to be proper and has granted recognition, there can be no justification for subjecting it to an inquiry by the Vigilance Investigation Bureau.
6. In the context of issues involved, it is relevant to refer to the material facts constituting the background for the inquiry in question as they appear in the letter of the Additional Director General of Police, Vigilance Investigation Bureau dated 24.3.2006 contained in Annexure- A to the counter affidavit of respondent no.2. That letter is addressed to the Secretary Higher Education Department, Government of Bihar (subsequently redesignated as Department of Human -5- Resources Development Department). The subject is inquiry in respect of colleges in the private sector associated with B. Ed. / Dental and other vocational courses. The letter discloses that a team of officials constituted by the Chancellor detected irregularities in respect of grant of affiliation and publication of results for B. Ed. and other courses by the University. The details of the irregularities and relevant papers were enclosed with letter dated 12.4.1999 issued by the Secretariat of Hon‟ble Chancellor with a direction to the Vigilance Investigation Bureau to enquire into the matter. Similar request for inquiry were received from the Secretariat of Hon‟ble Chancellor with respect to four Dental colleges under the same University and Teachers training colleges under B. N. Mandal University as well as Magadh University.
7. The said letter (Annexure- A) further discloses that Vigilance Investigation Bureau constituted a team of officers and selected some colleges for inquiry as sample cases. The result of the inquiry revealed cognizable offences leading to registration of regular -6- cases against seven Teachers training colleges and two Dental colleges under LN Mithila University and one Teachers training college under Magadh University. The letter further discloses that modus operandi adopted by all the institutions revealed almost same type of irregularities and wrong methods. In respect of some of the remaining institutions/ colleges, inquiry was initiated but it could not reach any final conclusion because the Vigilance Investigation Bureau got involved in other very important cases relating to BPSC scam, Flood Relief scam, IGIMS scam etc. The Vigilance Investigation Bureau, vide Annexure- A requested the Human Resources Development Department to constitute team of its own officers for holding inquiry in respect of other colleges mentioned in the reports received from the Secretariat of the Hon‟ble Governor. It was suggested that if in such inquiry cognizable offences were detected then criminal cases may be instituted either with the local police or with the Vigilance Investigation Bureau.
8. In the context of aforesaid letter of the -7- Additional Director General of Police, Vigilance Investigation Bureau, a reply was sent by the Commissioner- cum- Secretary of the Human Resources Development Department through letter no.866 dated 27.5.2006 with a direction that inquiry in respect of remaining B. Ed. training colleges should also be conducted by the Vigilance Investigation Bureau. As mentioned in the counter affidavit of respondent no.2, the Vigilance Investigation Bureau vide its letter no.365 dated 1.6.2006 accepted to complete the inquiry in respect of rest 11 colleges and that has led to inquiry against petitioner‟s institution and issuance of the impugned letter/ notice.
9. On behalf of the respondents strong reliance was placed upon the facts emerging from Annexures A and B to the counter affidavit of respondent no.2 for advancing the submission that the illegalities or irregularities requiring inquiry relate to earlier period when the concerned University had granted affiliations and published results of examination of B. Ed. courses and in relation to such acts, a team of high officials -8- constituted by the Chancellor of the Universities of Bihar had found irregularities which led the Chancellor to issue directions for inquiry by the Vigilance Investigation Bureau. On behalf of the respondents reliance was placed upon Section 9 (2) of the Bihar State Universities Act, 1976 which reads as follows :
" 9.(2) The Chancellor shall have the powers to inspect the university, its buildings, laboratories, workshops and equipment, any College or hostel, the teaching or examinations conducted, or any act done by the university, and to get such inspection done by such person or persons who may be directed by him and to inquire or to cause an inquiry made, in like manner, in respect of any matter connected with the University and it shall be the duty of the officers of the concerned University and College to render necessary assistance in such inspection :
Provided that the Chancellor shall, in every case, inform the Vice Chancellor of his intention to inspect or inquire or to get the inspection or inquiry conducted and the University shall be entitled to representation therein.
10. In order to avoid the effect of aforesaid statutory provision under which the Chancellor has powers to get inquiry made in respect of any matter connected with the University and corresponding duty of the officers of the University and the College to render necessary assistance, learned counsel for the petitioner -9- attempted to make a distinction between "affiliated college" and "constituent college" which are separately defined under Section 2(c) and 2 (i) of the Bihar State Universities Act. That distinction is found to be of no substance because Section 9 (2) mentions "any College"
without making any distinction between affiliated college and constituent college. Hence, the inquiry in the instant case by the Vigilance Investigation Bureau is clearly permitted under the statutory provisions noticed above. This view is supported by a Division Bench judgment of this Court in the case of Md. Salahuddin Sarwar v. State of Bihar, 2000 (1) PLJR 64. In that case also the petitioner represented a private unaided college and identical issues relating to authority of the Chancellor to direct such inquiry and the power of the Vigilance Department to hold the inquiry was under
challenge. The Division Bench upheld the authority of the Chancellor as well as power of the Vigilance Department and also the views of the learned single Judge that genuineness and otherwise of the claims of the petitioner college was not required to be gone into at
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a stage where the Vigilance Department was only conducting an inquiry and no case had been instituted. The Division Bench also placed reliance upon judgment of the Supreme Court in the case of R. P. Kapur and others v. Sardar Pratap Singh Kairon and others, AIR 1961 SC 1117, to highlight that Section 154 of the CrPC does not lay down that information of a cognizable offence can only be given to officer incharge of the police station. It is not in dispute that Vigilance Investigation Bureau is a police station whose jurisdiction extends over the whole State. The aforesaid Division Bench judgment is a complete answer to the contentions raised on behalf of the petitioner. The Vigilance Department of the State Government cannot be faulted for respecting the statutory powers of the Chancellor and the inquiry being conducted by Vigilance Investigation Bureau has the sanctity of law and as an affiliated college or a college for which examination was conducted by the University, the petitioner‟s institution is required to render all assistance in such inquiry.
11. A similar view was taken by another
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Division Bench of this Court in the case of Satish Kumar v. V.C., Bhupendra Nr. Mandal University, 2007 (2) PLJR 682. In paragraph 11 of that judgment reference was made to Section 9 (2) of the Bihar State Universities Act and after quoting the same it was held as follows :
" ...... In view of the express provision in the Act, it is futile to suggest that the Chancellor had no power to ask the Vigilance Department to enquire into the matter of grant of affiliation/ recognition to the College. ........"
12. Learned counsel for the respondents advanced a further submission that only because the petitioner is an unaided educational institution it cannot be said that it is not performing a public duty. In support of this proposition reliance was placed upon a judgment of the Supreme Court in the case of Unni Krishnan v. State of A.P., (1993) 1 SCC 645. That case related also to running of private unaided educational institutions and conducting professional courses and in paragraph 79 it was held that these educational institutions discharge public duty irrespective of the fact whether they are receiving aid or not.
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13. In reply, learned counsel for the petitioner placed reliance upon judgment of the Supreme Court in the case of State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1, for supporting a submission that after coming into force of the NCTE Act, 1993, the control over institutions recognized by the NCTE vests only in the latter and the State Government has no power to take any decision in respect of an institution recognized by the NCTE. This proposition has no relevance in the present case because the inquiry ordered by the Chancellor and the State Government relate to an earlier period when the concerned University had allegedly committed irregularities / illegalities in granting affiliation to and/or conducting examination for the concerned institutions.
14. The issue relating to applicability of provisions of the PC Act to the petitioner‟s institution is found to be entirely misconceived. The inquiry is primarily against the irregular or illegal acts of the University. The colleges or the institutions that might have or are suspected to have abetted omission of
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offences by officials of the University will definitely be covered by the provisions of the PC Act even if such colleges are themselves not covered by the definition of "public servant" under Section 2(c) of the PC Act.
15. As a result of aforesaid discussions, it is found that the inquiry being conducted by the Vigilance Investigation Bureau does not contravene any provision of the PC Act or CrPC and is mandated by Section 9 (2) of the Bihar State Universities Act. It is further found that subsequent recognition by the NCTE is of no consequence so far as the present inquiry is concerned because the same relates to an earlier period. It is made clear that we have not gone into the merits of petitioner‟s claim of innocence because it is not an appropriate stage for embarking upon such an inquiry by this Court. It may be relevant to mention here that a similar objection with regard to inquiry by the Vigilance Investigation Bureau was raised in an earlier writ petition filed by private Teachers training college association bearing CWJC No.7159 of 2006 and the said writ petition was dismissed by this Court on 21.9.2006 as per averment in
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paragraph 7 of the counter affidavit filed by respondent no.1 which has not been disputed.
16. In the final analysis, we find no merit in this writ petition. It is accordingly dismissed.
(Shiva Kirti Singh, J.) I agree (Gopal Prasad, J.) AFR sk