Madras High Court
The Joint Registrar/Administrator vs P.Siva Kumar on 18 November, 2014
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18-11-2014 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR W.A.No.1801 of 2013 The Joint Registrar/Administrator, M/s.Tiruthani Co-operative Sugar Mills Limited, Thiruvalangadu, Tiruthani Taluk. .. Appellant Vs. 1. P.Siva Kumar 2. The Commissioner of Sugar, No.690 Anna Salai, Nandanam, Chennai - 600 035 3. Inspector of Police, Special Investigation Cell, Vigilance and Ante Corruption, R.A.Puram, Chennai - 28. .. Respondents (R-3 impleaded as party respondent vide order of the Court dt.24.9.2014 in M.P.No.1 of 2014) Prayer: Appeal under Clause 15 of the Letters Patent against the order of the learned Single Judge dated 15.2.2012 passed in W.P.No.25143 of 2011. For Appellant : Mr.S.Sivashanmugam For 1st Respondents : Mr.C.Prakasam For Respondents 2&3 : Mr.AL.Somayaji, Advocate General, assisted by Mr.R.Bala Ramesh, Addl. Govt. Pleader Date on which reserved for orders Date of Pronouncement of orders 30-10-2014 18-11-2014 J U D G M E N T
N. PAUL VASANTHAKUMAR, J.
This writ appeal is preferred against the order of the learned single Judge in W.P.No.25143 of 2011 dated 15.2.2012, wherein the first respondent herein has challenged the order of suspension issued by the appellant dated 18.3.2009 confirmed by the Commissioner of Sugars by order dated 31.10.2012 and for a direction to the appellant to restore the first respondent in service with all attendant benefits.
2. The learned single Judge while setting aside the order of suspension, incidentally held that the first respondent being an employee of the Co-Operative Society (Sugar Mills), is not a "public servant" as defined under the provisions of Prevention of Corruption Act, 1988 to attract the provisions of Sections 7 and 13 of the Act. Insofar as the said finding rendered by the learned single Judge, this writ appeal is filed by the appellant, which is also fully supported by the respondents 2 and 3.
3. The facts leading to filing of the writ petition by the first respondent are as follows:
(a) The first respondent was appointed as Assistant Cane Officer on 27.11.1982 at Perambalur Sugar Mills and was subsequently promoted as Cane Officer in charge of Chief Cane Officer and posted at Tiruthani Co-Operative Sugar Mills. The Sugar Mills are created and registered under the Tamil Nadu Co-Operative Societies Act, 1983.
(b) When he was discharging his duties as Chief Cane Officer, the Joint Registrar/Administrator, Tiruthani Sugar Mills Limited suspended three Cane Assistants from service on 14.3.2009, of which one Cane Assistant viz., Vedachalam threatened the first respondent that he was responsible for his suspension as he sent a report to the Joint Registrar.
(c) The said Vedachalam lodged a complaint before the Vigilance and Anti-Corruption Police stating that the first respondent demanded a sum of Rs.10,000/- for transferring him from Tiruvallur to Chengalpattu. According to the first respondent, he has no power to transfer Cane Assistants from one place to another and the said power is vested with the Joint Registrar/Administrator alone.
(d) On 17.3.2009 the said Vedachalam brought the Vigilance Police to the office where the first respondent was working and staged dharna as if he received a sum of Rs.5,000/-. The first respondent was arrested by the Police and after knowing the said factum of arrest, the Joint Registrar/Administrator suspended the first respondent from service on 18.3.2009.
(e) The first respondent made a representation to the Joint Registrar/second respondent on 4.5.2009 and prayed for revocation of suspension and no order having been passed, the first respondent approached this Court by filing W.P.No.21535 of 2009 and prayed for disposal of the representation seeking revocation of suspension and this Court by order dated 23.10.2009 directed the Joint Registrar to dispose of the representation dated 4.5.2009 within four weeks.
(f) On 4.12.2009 the Joint Registrar/Administrator disposed of the representation and rejected the request seeking revocation of suspension stating that the first respondent shall get no objection certificate from the Director of Vigilance and Anti-Corruption. The first respondent contended that he not being a Government Servant, no NOC from the Director of Vigilance and Anti-Corruption is required to be obtained.
(g) The first respondent filed a revision before the Director of Sugars under Section 153 of the Tamil Nadu Co-Operative Societies Act, 1983 and challenged the order of suspension. No order having been passed in the revision, again he filed W.P.No.24627 of 2010 and prayed for disposal of the revision and this Court by order dated 1.11.2010 directed the Commissioner of Sugars to dispose of the revision within six weeks.
(h) On 31.12.2010 the revision was rejected. Consequently the first respondent challenged the order of suspension passed by the Joint Registrar/Administrator as well as the order passed by the Commissioner of Sugars under Section 153 of the Act, in the writ petition by raising various grounds.
4. The Administrator opposed the prayer made in the writ petition by filing counter affidavit stating that the first respondent was arrested for accepting bribe of Rs.5,000/- in a trap laid by DVAC Officials on 18.3.2009 at 7.30 p.m. The first respondent was remanded to prison on 18.3.2009 itself for his involvement in criminal case registered for offences under Section 13(2) read with Section 13(1)(d) and 7 of Prevention of Corruption Act, 1988. Due to the said fact the first respondent was placed under suspension w.e.f. 17.3.2009 vide order dated 18.3.2009 and thereafter a charge memo was issued on 25.6.2009. The first respondent obtained bail thereafter and submitted a representation on 4.5.2009 seeking revocation of suspension, which was rejected. The Director of Vigilance and Anti-Corruption, by request dated 11.2.2010 sought permission for sanction to prosecute the first respondent and the Administrator by order dated 10.7.2010 informed the Director Vigilance and Anti Corruption that charge sheet was filed against the first respondent and the same was taken on file in C.C.No.17 of 2010 on 28.9.2010 on the file of the Chief Judicial Magistrate, Tiruvallur. As far as the contention that the first respondent is not a 'public servant' as defined under Section 2(c), it was answered by stating that as per Section 2(c)(xii) any person who is an office bearer or an employee of educational, scientific, social, cultural or other institution whatever manner would be, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority will come under the definition of "public servant". It is also stated in the counter affidavit that the Tiruthani Co-Operative Sugar Mills Limited is doing public duty and the first respondent being employed in the said Mills, will come under the definition of "public servant" and the contention raised to that effect is liable to be rejected.
5. The learned single Judge held that the Officer of the Co-Operative Sugar Mills is not coming within the definition of "public servant" and therefore the provisions of the Prevention of Corruption Act, 1988 cannot be invoked against the first respondent. Learned single Judge also quashed the order of suspension.
6. This Court, by order dated 6.9.2013, while admitting the writ appeal noted the prima facie case and granted interim stay of operation of the judgment and also noted that pursuant to the order of the learned single Judge, first respondent was permitted to join duty and he continued in duty for over 1= years and likely to be superannuated on 28.2.2014. As on today the first respondent is not in service as he reached the age of superannuation, however, he was not allowed to retire.
7. The learned counsel appearing for the appellant as well as the learned Advocate General appearing for respondents 2 and 3 contended that the first respondent is a common cadre employee as per Government Orders. Salary of all cadre employees of Sugar Mills are being fixed by the Government in G.O.Ms.No.138 Industries (MIC.2) Department, dated 27.9.2010 and in Category 9, the cadre/post of the first respondent viz., Cane Officer is mentioned. The learned Advocate General further submitted that the Co-operative Sugar Mills is doing public duty and therefore its employees are "public servants", coming under the definition of Section 2(c) of the Prevention of Corruption Act, 1988, though under the previous enactment viz., Prevention of Corruption Act, 1947, they were not treated as "public servant". The learned Advocate General further relied on the judgment of the Supreme Court reported in (2002) 7 SCC 631 (Government of Andhra Pradesh v. P.Venku Reddy), (2002) 7 SCC 639 (State of Karnataka v. M.N.Ramdas), judgment of Punjab & Haryana High Court reported in 2013 (2) Crimes 666 (P&H) made in Crl.M.M.No.779/2010 dated 16.7.2012, the Judgment of Karnataka High Court reported in Manu/KA/1318/2013 (Dr.H.Narayan v. State of Karnataka) (Crl.R.P.No.1395/2010 dated 31.7.2013) in support of his contention that the Co-Operative employees are coming within the definition of "Public servant" and therefore the finding given by the learned single Judge with regard to the inapplicability of the Prevention of Corruption Act, 1988 is liable to be set aside.
8. Mr.C.Prakasam, learned counsel appearing for first respondent contented that the first respondent being an employee of the Sugar Mill, which is registered under the provisions of the Tamil Nadu Co-Operative Societies Act, 1983, it is not an authority under Article 12 of the Constitution of India and therefore in terms of the Full Bench decision of this Court reported in 2006 (4) CTC 689 (K.Marappan v. Deputy Registrar of Co-op Societies, Namakkal), the first respondent cannot be treated as a "public servant" and therefore the learned single Judge was right in his decision that Prevention of Corruption Act, 1988 is not applicable to Co-operative Society/Sugar Mill Employees.
9. We have considered the rival submissions made by the learned counsel for the appellant, learned Advocate General, as well as learned counsel for the first respondent.
10. It is not in dispute that the first respondent was appointed in the appellant Sugar Mills; promoted as Assistant Cane Officer and posted at Perambalur Sugar Mills; and further promoted as Cane Officer in-charge of Chief Cane Officer and posted at Tiruthani Co-Operative Sugar Mills Limited. A complaint was given against the first respondent by one G.Vedachalam stating that the first respondent demanded bribe of Rs.10,000/- for helping the said Vedachalam in getting an order of transfer, pursuant to which the Vigilance and Anti Corruption registered a complaint in Crime No.14 of 2009 under section 7 of the Prevention of Corruption Act, 1988. The first respondent was arrested on 17.3.2009 on the basis of the criminal complaint of demand and acceptance of bribe in the trap made. He was remanded to judicial custody on 17.3.2009 and after investigation, charge sheet was laid on 27.9.2010 before the Chief Judicial Magistrate, Tiruvallur, and the criminal case is pending as Spl.C.C.No.17 of 2010. Trial of the said criminal case commenced on 10.1.2012 and as on date Pws.1 to 5 were examined by the prosecution.
11. The first respondent having been shown as an accused as stated supra, he filed a discharge petition under Section 239 Cr.P.C. in Crl.M.P.No.1428 of 2010 before the Trial Court and the said discharge petition was opposed by the Vigilance and Anti-Corruption Police and consequently the said discharge petition was dismissed by the learned Chief Judicial Magistrate, Tiruvallur on 26.7.2011. As against the said order first respondent filed Crl.R.C.No.1186 of 2011 before this Court and the same was also dismissed as withdrawn on 13.9.2011. The first respondent again filed Crl.O.P.No.62 of 2012 under Section 482 Cr.P.C. before this Court and prayed to quash the charge sheet filed in Spl.C.C.No.17 of 2010 on the file of the Chief Judicial Magistrate, Tiruvallur. The said petition was also dismissed as withdrawn by this Court on 26.4.2012.
12. The first respondent failed to disclose filing of Crl.M.P, Crl.R.C and Crl.O.P. as stated supra, in the affidavit filed in support of the writ petition. The first respondent again filed discharge petition in C.M.P.No.853 of 2012 based on the order of the learned single Judge made in writ petition before the Chief Judicial Magistrate Court, Tiruvallur and the said discharge petition was also dismissed on 17.5.2013. As against the said order, first respondent filed revision in Crl.R.C.No.1057 of 2013 and the said revision is pending without any stay, and therefore witnesses were examined before the Chief Judicial Magistrate Court and the trial is continued.
13. The point arises for consideration in this writ appeal is as to whether the first respondent is a "public servant" or not for the purpose of proceeding under the Prevention of Corruption Act, 1988.
14. Section 2(c) of the Prevention of Corruption Act, 1988 defines "public servant" as follows:
"2(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) any person authorised 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 authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered cooperative 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;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority."
(Emphasis Supplied)
15. A perusal of the above definition, particularly with reference to section 2(c)(iii), it is evident that the first respondent is an employee in a Sugar Mills established under the State Act viz., Tamil Nadu Co-Operative Societies Act, 1983, which is also partly aided by the Government of Tamil Nadu.
16. Whether the Tiruthani Co-Operative Sugar Mills Limited is performing "public duty" and the Government has control over the Sugar Mills can be ascertained from the following facts.
17. (The) Sugarcane (Control) Order, 1966 was issued by the Central Government in exercise of the powers conferred under Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955). In the said Order, "Co-operative Society" is defined under Clause 2(b) which means 'a Co-operative Society registered under the Cooperative Societies Act, 1912 (2 of 1912) or under an other law for the time being in force relating to co-operative societies.' In this case, appellant Sugar Mills is registered under the Tamil Nadu Co-Operative Societies Act, 1983. Minimum price of sugarcane payable by producer of sugar is mandated under Clause 3, as per which, the Central Government is the competent authority to fix the fair and remuneration price of sugarcane to be paid by producers of sugar or their agents for the sugarcane purchased by them, taking into several parameters. The State Government can also allow suitable rebate in the price so fixed with the approval of the Central Government. As per Clause 3(2), no person shall sell or agree to sell sugarcane to a producer of sugar or his agent, and no such producer or agent shall purchase or agree to purchase sugarcane, at a price lower than that fixed under sub-clause (1). The sugarcane growers can sell their sugarcane only to the Sugar Mill situated within the serving area/territorial jurisdiction. The Central Government has got power to regulate distribution and movement of sugarcane as per Clause 6. There is restriction for setting up of two Sugar Mills within the radius of 15 kms under Clause 6-A. The Central Government or the State Government are vested with the power to authorise any Officer to enter and search any premises of the Sugar factory. Thus, there is deep and pervasive control of the Central Government and State Government with regard to the purchase of sugarcane by Sugar Mills, fixing of price for sugarcane and sale of sugar manufactured.
18. The appellant Co-operative Sugar Mills Limited is also shown as one of the Co-operative Sugar Mills situated in the State of Tamil Nadu as per Schedule-III annexed to (The) Sugar (Price Determination) Order issued from time to time. For example, (The) Sugar (Price Determination for 2006-07 Production) Order, 2006 in Schedule-III under the caption Tamil Nadu, in Sl.No.28, Tiruttani Co-Operative Sugar Mills Limited, Tiruttani, District Chengalpattu is listed. Thus, it is evident that the appellant Sugar Mills registered under the Tamil Nadu Co-operative Societies Act, is performing "public duty" and the same cannot be disputed by the first respondent.
(i) The Honourable Supreme Court in the decision reported in (2012) 12 SCC 331 (Ramesh Ahluwalia v. State of Punjab) considered the term "public duty" performed by the Private Unaided Educational Institution and held that since the Unaided Educational Institutions perform public function/ duty, i.e., providing education to children in their institutions throughout India, they are doing public duty amenable to writ jurisdiction and the decision rendered by the Punjab & Haryana High Court to the contrary was set aside. This judgment is relied on only for the purpose of public duty performed by unaided educational institutions and its officials are coming within Section 2(c) of the Prevention of Corruption Act, 1988.
(ii) In the decision reported in AIR 2004 SC 2271 (Gayatri De v. Mousumi Co-operative Housing Society Ltd.) the Honourable Supreme Court held that the Special Officer appointed by the High Court exercising statutory function under the West Bengal Co-Operative Societies Act, shall be regarded as public authority.
(iii) The Full Bench of Patna High Court in the decision reported in AIR 2014 Patna 67 (FB) (Organizer, Dehri C.D. and C.M.Union Ltd., Fazalganj v. State of Bihar) answered a question of law raised in respect of the issue as to whether an Administrator appointed under the Bihar and Orissa Co-operative Societies Act, 1935, who discharges the functions of the Committee of Management under Section 41(5) was carrying on any public function or not, and in paragraph 47 held thus, "47. .................
(i) The authority created by a Statute under control of Government, hence a statutory corporate entity; and/or
(ii) Even a body corporate as distinct from statutory Corporation could be "State", if there was a deep and pervasive control of the Government; and/or
(iii) Independent body corporate formed by the Government to perform Governmental duties or duties of public nature for Government; and/or
(iv) Authority functioning as an instrumentality or agency of Government, the functionality test; and/or
(v) Unusual degree of control of Government and rendering public service; and/or
(vi) Authority works as an adjunct of and for the purpose of Government and Governmental purposes and/or public function; and/or
(vii) Authority performing monopolistic functions reserved by State; and/or
(viii) Cumulative effect of various relevant facets have to be seen and not one stray facet; and/or
(ix) The authority may itself not be State, but a person therein is controlled by and supervised by the State/Government, then he becomes a "State" because of the control."
The appellant Sugar Mills is satisfying Clause (i), (v), (vi) & (vii) of the said parameters. In para 50 of the Judgment, the Full Bench further held that where the authority or person performs duty akin to public duties or public functions even though independent of Government, that authority is coming within the meaning of Article 12 of the Constitution of India.
19. In this case, apart from establishment of Sugar Mills under the Tamil Nadu Co-operative Societies Act, 1983, service conditions, particularly the pay scales are being fixed by the Department of Industries insofar as the employees of the Sugar Mills are concerned and the same is evident from G.O.Ms.No.138 Industries (Mic.2) Department, dated 27.9.2010 wherein pay revision given to Government Employees based on 6th Central Pay Commission was also extended at the request made by the Commissioner of sugars, based on a Committee report. Dearness allowance, Selection grade/Special grade pay, encashment of earned leave, HRA, etc., are also extended and in Annexure-I Sl.No.9, salary of Cane Officer is fixed. The first respondent is receiving the said scale of pay fixed by the Government. Thus, it is evident that there is deep and perverse control by the Government over the Sugar Mills as they are performing "public duty".
20. Thus it is beyond doubt that the appellant Sugar Mills and its employees are performing "public duty" like Private Aided/Unaided Recognised Educational Institutions, coming within the definition of Section 2(c)(viii) of the Prevention of Corruption Act, 1988.
21. The appellant Sugar Mills is aided, i.e, receiving subsidy from the Government. Section 64 of the Tamil Nadu Co-operative Societies Act, 1983 enables the Government to extend financial aid to the Societies/Mills, which reads thus, "64. Other forms of State aid to registered societies.- Notwithstanding anything contained in this Act or any other law for the time being in force, the Government may, subject to such conditions as they may by general or special order, specify in this behalf,-
(a) grant loans or make advances to any registered society;
(b) guarantee the re-payment of principal and payment of interest on debentures issued by a registered society;
(c) guarantee the re-payment of share capital of registered society and dividents thereon at such rates as may be specified by the Government;
(d) guarantee the re-payment of principal and payment of interest on loans and advances to a registered society;
(e) guarantee the re-payment of deposits received by a registered society and payment of interest on such deposits; and
(f) give financial assistance in any other form including subsidies, to any registered society."
It is not in dispute that salary of the staff are fixed by the Government in G.O.Ms.No.138 dated 27.9.2010. Thus, the first respondent is coming within the definition of Section 2(c)(iii) of the Prevention of Corruption Act, 1988.
22. (a) Similar issue with regard to applicability of the Prevention of Corruption Act, 1988 came up for consideration before the Honourable Supreme Court in the decision reported in (2002) 7 SCC 631 (Government of Andhra Pradesh v. P.Venku Reddy). In the said case the Division Bench of Andhra Pradesh High Court quashed the criminal proceedings initiated under the Prevention of Corruption Act against the Supervisor in the District Co-Operative Central Bank Limited by holding that the said Co-Operative employee/Supervisor is not a public servant as defined under sub-clause (iii) to clause (c) of Section 2 of 1988 Act. The Honourable supreme Court set aside the said judgment of the Andhra Pradesh High Court and in paragraph 8 held thus, "8. From the abovequoted sub-clause (ix) of clause (c) of Section 2 of the 1988 Act, it is evident that in the expansive definition of public servant, elected office-bearers with the President and Secretary of a registered cooperative society which is engaged in trade amongst others in banking and receiving or having received any financial aid from the Central or State Government, are included although such elected office-bearers are not servants in employment of the cooperative societies. But employees or servants of a cooperative society which is controlled or aided by the Government, are covered by sub-clause (iii) of clause (c) of Section 2 of the 1988 Act. Merely because such employees of cooperative societies are not covered by sub-clause (ix) along with holders of elective offices, the High Court ought not to have overlooked that the respondent, who is admittedly an employee of a cooperative bank which is controlled and aided by the Government, is covered within the comprehensive definition of public servant as contained in sub-clause (iii) of clause (c) of Section 2 of the 1988 Act. It is not disputed that the respondent-accused is in service of a cooperative Central bank which is an authority or body controlled and aided by the Government."
In the said judgment it is further held that there is lot of distinction between Prevention of Corruption Act, 1988, and the Repealed Act of 1947 and further held in paragraphs 9 to 12 thus, "9. It cannot be lost sight of that the 1988 Act, as its predecessor, that is, the repealed Act of 1947 on the same subject, was brought into force with the avowed purpose of effective prevention of bribery and corruption. The Act of 1988 which repeals and replaces the Act of 1947 contains a very wide definition of public servant in clause (c) of Section 2 of the 1988 Act. The Statement of Objects and Reasons contained in the Bill by which the Act was introduced in the legislature throws light on the intention of the legislature in providing a very comprehensive definition of the words public servant. Para 3 of the Statement of Objects and Reasons reads:
3. The Bill, inter alia, envisages widening the scope of the definition of the expression public servant, incorporation of offences under Sections 161 to 165-A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.
10. Clause 2 of the Notes on Clauses in the Gazette of India, Extraordinary, Part II, Section 2, further clarifies the legislative intent thus:
2. This clause defines the expressions used in the Bill. Clause 2(c) defines public servant. In the existing definition the emphasis is on the authority employing and the authority remunerating. In the proposed definition the emphasis is on public duty. The definition of election is based on the definition of this expression in the Indian Penal Code.
11. Under the repealed Act of 1947 as provided in Section 2 of the 1988 Act, the definition of public servant was restricted to public servants as defined in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only in government establishments and departments but also in other semi-governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of public servant has been given in clause (c) of Section 2 of the 1988 Act.
12. In construing the definition of public servant in clause (c) of Section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of public servant, was brought in force to purify public administration. When the legislature has used such a comprehensive definition of public servant to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of public servant, therefore, deserves a wide construction. (See State of M.P. v. Shri Ram Singh, (2000) 5 SCC 88)"
(b) The Honourable Supreme Court in yet another decision reported in (2002) 7 SCC 639 (State of Karnataka v. M.N.Ramdas) distinguished the definition given to "public servant" under IPC and in Prevention of Corruption Act, 1988. In paragraph 5 of the Judgment it is held that the High Court proceeded on the assumption that Section 21 of the IPC is a relevant provision to determine whether the accused in the case is a "public servant". It is categorically held that Section 21 of IPC is of no relevance to consider the question, which has to be on interpretation of provision of section 2(c) of Prevention of Corruption Act, 1988 read with relevant provisions of the Maharashtra Co-operative Societies Act. The Hon'ble Supreme Court set aside the order of Bombay High Court.
(c) The Punjab and Haryana High Court in the decision reported in 2013 (2) Crimes 666 (Balbir Singh v. State of Punjab) considered similar issue and held that the society has its duties towards public and hence public interest is involved in the activities of the Society. Receiving illegal gratification while performing duty will attract penal provisions of Prevention of Corruption Act, against the Co-operative Society employees, which was created and registered under the Punjab Co-Operative Societies Act, 1961.
(d) Same view was also taken by the Karnataka High Court, which distinguished the definition of "public servant" under the IPC as well as Prevention of Corruption Act. In the said case, the question of sanction of prosecution of an employee of Karnataka Co-operative Milk Producers Federation, registered under the Karnataka Societies Registration Act, was considered. In the said case Section 2(c)(iii) of the PC Act was pressed into service and a decision was rendered holding that the "public servant" as enumerated under the Provisions of IPC is different from the definition of public servant under the Prevention of Corruption Act, 1988. The word "public servant" in the Prevention of Corruption Act has wider meaning, while it has narrow meaning under the provisions of IPC.
23. How the corruption cases are to be dealt with by the Courts, came up for consideration before the Constitution Bench of the Hon'ble Supreme Court in the decision reported in (2014) 8 SCC 682 (Subramanian Swamy v. CBI) while challenging Section 6A of the Delhi Special Police Establishment Act, 1946, which requires getting permission from the Central Government to initiate criminal proceedings against the bureaucrats of Joint Secretary level and above. The Honourable Supreme Court struck down the said statutory provision as it was held violative of Article 14 of the Constitution of India and in paragraphs 72, 74 to 76 held thus, "72. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision-making power does not segregate corrupt officers into two classes as they are common crimedoers and have to be tracked down by the same process of inquiry and investigation.
73. ...................
74. The PC Act, 1988 is a special statute and its Preamble shows that it has been enacted to consolidate and amend the law relating to the prevention of corruption and for the matters connected therewith. It is intended to make the corruption laws more effective by widening their coverage and by strengthening the provisions. It came to be enacted because the Prevention of Corruption Act, 1947 as amended from time to time was inadequate to deal with the offences of corruption effectively. The new Act now seeks to provide for speedy trial of offences punishable under the Act in public interest as the legislature had become aware of corruption amongst the public servants.
75. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but is also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the country ((1999) 5 SCC 138).
76. The PC Act, 1988 has also widened the scope of the definition of the expression public servant and incorporated offences under Sections 161 to 165-A of the Penal Code (IPC). By the Lokpal and Lokayuktas Act, 2013 (1 of 2014), further amendments have been made therein. ......."
24. Thus, it is evident that corrupt practices indulged by "public servant" is alarming and the Courts are bound to widen the scope of interpretation of the words "public servant". The Sugar Mills are performing public duty and the first respondent while working as Cane Officer of Tiruttani Co-operative Sugar Mills, which was created and registered under the Tamil Nadu Co-Operative Societies Act, 1983, is a "public servant" within the meaning of Section 2(c) of the Act. In the light of the above findings, we are not pursuaded to accept the findings given by the learned single Judge.
25. For the foregoing reasons, the writ appeal stands allowed. The order of the learned single Judge dated 15.2.2012 made in W.P.No.25143 of 2011 is set aside. As the Prevention of Corruption case is pending for about four years, the learned Chief Judicial Magistrate, Tiruvallur is directed to dispose of Special C.C.No.17 of 2010 within a period of two months from today and send a report to the Registry of this Court. No costs.
Index : Yes/No (N.P.V.J.) (P.R.S.J.)
Internet : Yes/No 18.11.2014
vr
To
1. The Chief Judicial Magistrate, Tiruvallur
2. The Commissioner of Sugar,
No.690 Anna Salai, Nandanam, Chennai - 600 035
3. The Inspector of Police, Special Investigation Cell,
Vigilance and Ante Corruption, R.A.Puram,
Chennai - 28.
N.PAUL VASANTHAKUMAR,J.
and
P.R.SHIVAKUMAR,J.
vr
Pre-Delivery Judgment in
W.A.No.1801 of 2013
18.11.2014