Distinguish between Govt.sevent and public servant
M.V.krishnarao
(Querist) 21 January 2010
This query is : Resolved
Distinguish between Govt.servent and Public servent. Kindly furnish any case studies (cases booked U/s 13(1)(e)of PC Act) discharged/quashed considering public servent as Govt.servent.
A V Vishal
(Expert) 21 January 2010
Government servant means a person who
is a member of a Service or holds a civil post under the Union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Government, or a
local or other authority;
The definition of public servant has been enlarged so as to include the office-bearers of the registered co-operative societies receiving any financial aid from the government, of from a Government Corporation/Company, the employees of universities, Public Service Commissions,
and Banks etc. Section 2 (c) of the Prevention of Corruption Act, 1988,
defines the public servant as under:-
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;
iv) Any judge, including any person empowered by law to discharge,whether by himself or as a member of any body of
persons, any adjudicator 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 of 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 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;
x) Any person who is a chairman, member of 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;
Explanation 1 - Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.
Explanation 2 - wherever the words Public Servant occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his
right to hold that situation.
A V Vishal
(Expert) 21 January 2010
The question under discussion is that whether the protection given under Section 197 of Criminal Procedure Code, 1973 (called Cr.P.C.) could be made applicable in respect of employees of Government companies (who are not removable from office save by or with sanction of Government, provided other implied conditions are fulfilled. Flowing from the plain reading of the Section, the sub-section (1) of Section 197 uses the term public servant thereby meaning the person who is employed....in connection with the affairs of the Union, of Central Government / State Government under sub-clauses (a) and (b) of sub-section (1) of Section 197 Cr.P.C. Within the meaning of the term affairs of the Union, of Central Government/ State Government as set out in the Section 197 ibid, brings within its fold the Government companies as the instrumentalities of the Government through corporate veil, having separate juridical identity.
Different courts ruled differently in the matter of definition of public servant under Section 21(Twelfth) (b) of IPC. In the case of S. P. Das vs State of Bihar, it has been held that Senior Divisional Manager and Assistant Manager of Insurance Company are public servants as defined under S. 21 IPC for entitling sanction u/s 197 Cr.P.C. However, it has been held by the Allahabad High Court that no sanction is required for prosecuting an employee or officer of a Nationalised Bank (Bhagwan Pd. Saxena vs State of U.P.). However, in the case of the State of Maharashtra vs L. D. Kanchan, it has been held that employee of a Nationalised Bank is a public servant. Although, in different context, the recent judgment of the Supreme Court in the case of the National Small Industries Corporation Ltd. vs State NCT, Delhi, while dwelling on the definition of Public servant, it has been held that a Government company is not a public servant, but every employee of the company is a public servant.
Contrarily, the SC in the case of Mohd. Hadi Raja vs State of Bihar & Another held that the employees of Government companies cannot come within the ambit of the term public servant for getting the protective cover as envisaged in Section 197 Criminal Procedure Code, 1973 as they cannot be treated at par with the Government servants.
Guest
(Expert) 21 January 2010
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