Members Of Charitable Society Running Educational Institution Are ‘Public Servants’ As Duty Discharged By Them Is ‘Public Duty’: Kerala HC

The Kerala High Court observed that the members of a charitable society running an educational institution are public servants as duty discharged by them is public duty.

The Court observed thus in a Writ Petition preferred against the Order/Communication of the Additional Chief Secretary to Department of Vigilance, Government Secretariat and seeking enquiry/investigation into the allegations of misappropriation and corruption in the educational institution by the name `Nazreth Pharmacy College’.

A Single Bench of Justice K. Babu held, “In the present facts, it appears that the persons arraigned as accused are the final authority with regard to the grant of admission, collection of fees etc. The duty discharged by them is ‘public duty’ and hence they are `public servants’ as defined under the P.C. Act.”

Advocate Sooraj T. Elenjickal represented the Petitioner while Special Government Pleader (SGP) A. Rajesh and Senior Public Prosecutor (SPP) Rekha S. represented the Respondents.

Facts of the Case -

The Petitioner alleged a conspiracy among the members of a charitable society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, running a college. The Petitioner arraigned nine persons as suspects in a Complaint submitted before the Director of Vigilance. It was alleged that the suspected persons in furtherance of their common intention, denied admission to eligible students in the Pharmacy College in the seats allotted to the Government and sold the said seats to private students after receiving a huge capitation amount and misappropriated the amount so obtained to their credit causing wrongful loss to the society and wrongful monetary gain to them. It was further claimed that the said acts were in violation of the provisions of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee & Other Measures to Ensure Equity & Excellence in Professional Education) Act, 2006.

They were alleged to have committed offences punishable under Section 5 read with Section 15 of the Act, Section 13 of the Prevention of Corruption Act, 1988 (PC Act) and Sections 406 and 409 of the Indian Penal Code (IPC). When the Vigilance and Anti-corruption Bureau (VACB) refused to take action on the Complaint, the Petitioner filed a Complaint before the Court of Enquiry Commissioner and Special Judge, Kottayam, praying for conducting an inquiry. The VACB took the stand that as approval under Section 17A of PC Act, they are not in a position to enquire or investigate into the allegations. Thereafter, the Petitioner filed an Application seeking investigation but the Special Court dismissed the same. The Petitioner essentially challenged the legality of the Government Order before the High Court.

The High Court in view of the above facts, said, “… the duty discharged by the management of the institution is based on the positive law of the State or the governmental directions.”

The Court referred to the Judgment in the case of Central Bureau of Investigation, Bank Securities and Fraud Cell v. Ramesh Gelli and Others [(2016) 3 SCC 788] wherein the Supreme Court observed that it would be more reasonable to understand the expression “public servant” by reference to the office and the duties performed in connection therewith to be of a public character.

“The acts alleged do not come under the ambit of Section 17A of the P.C. Act as they are not relatable to any recommendations made or decisions taken by a public servant in the discharge of his official functions or duties”, it noted.

The Court further reiterated that the approval under Section 17A arises only when the offence is relatable to any recommendation made or it is a decision taken by such public servant in discharge of his official functions or duties.

“… approval under Section 17A is not required for conducting a preliminary enquiry in the matter”, it concluded.

Accordingly, the High Court allowed the Writ Petition, quashed the impugned Order, and directed preliminary enquiry into the case.

Cause Title- A.K. Sreekumar v. The Director, Vigilance and Anti Corruption Bureau & Ors. (Neutral Citation: 2024:KER:93783)

Appearance:

Petitioner: Advocates Sooraj T. Elenjickal, Renoy Vincent, Shahir Showkath Ali, Aleesha Shereef, Helen P.A., and Arun Roy.

Respondents: SGP A. Rajesh and SPP Rekha S.

Click here to read/download the Judgment