TaxTMI 
TaxTMI 
2020 (4) TMI 882
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....ustee of a trust called the Sumandeep Charitable Trust, which established and sponsors 'Sumandeep Vidyapeeth', a deemed University, which is the institution concerned herein. 4. Brief facts necessary for the disposal of the case are that an FIR, being IER No. 3 of 2017, dated 28.02.2017 was filed by one Dr. Jasminaben, wife of Dilipbhai Devda, before the Vadodara City A.C.B. Police Station against four accused persons including the present respondent. Broadly, the allegations were that the complainant's elder daughter was admitted to the MBBS Course in the abovementioned Deemed University in the year 2012. Her daughter's course fee was completely paid up as per the annual fee slab. In the year 2017, her elder daughter while filling up her final examination form, was asked to meet the respondent herein. On meeting, the respondent, in conspiracy with others, had communicated that the complainant's husband had to further pay Rupees Twenty Lakhs for allowing the complainant's daughter to take the examination. Further, it is alleged that the accusedrespondent had communicated that they can deposit a cheque and the same would be returned on payment of cash, considering that demonetizati....
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....mind, must ensure that technicalities should not defeat the object sought to be achieved. 11. The counsel further argued that public function need not be the exclusive domain of the State; private institutions such as universities may also perform a public function. The counsel placed reliance upon Modern Dental College & Research Centre v. State of Madhya Pradesh., (2016) 7 SCC 353 and Janet Jeyapaul v. SRM University., (2015) 16 SCC 530 to state that imparting education to the public is a welfare activity and hence can be called as an activity done for public good. Considering the UGC guidelines, the counsel submitted that Deemed Universities effectively discharge the public function of imparting education to the public. 12. Moreover, the counsel placed reliance upon the case of K. Veeraswami v. Union Of India, (1991) 3 SCC 655 to submit that there is no requirement of having a masterservant relationship between the competent authority and the public servant. The PC Act does not define public servant, rather, it provides categories of the same. The counsel further stated that the lack of any authority to grant the sanction cannot result in nonprosecution. In such situations, th....
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....st which established and sponsors the said University ('Deemed to be University') is a 'public servant' covered under Section 2(c) of the PC Act, can be broken up into two parts: first, whether the 'Deemed University' is covered under the provisions of the Prevention of Corruption Act, 1988, and secondly, whether the 'respondent-trustee' can be termed as 'public servant' under Section 2(c)(xi) of the PC Act? 19. Before we proceed further, we need to observe the relevant provisions under the PC Act: 2(c.). "public servant" means ... (xi) any person who is a ViceChancellor 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; 20. Simply speaking, any person, who is a Vice-Chancellor, any member of any governing body, professor, reader, lecturer, any other teacher or employee, by whatever designation called, of any University, is said to be a public servant. Further, the de....
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....e concerned herein with interpreting the provisions of the PC Act. There is no dispute that corruption in India is pervasive. Its impact on the nation is more pronounced, due to the fact that India is still a developing economy. Presently, it can be stated that corruption in India has become an issue which affects all walks of life. In this context, we must state that although anticorruption laws are fairly stringent in India, the percolation and enforcement of the same are sometimes criticized as being ineffective. Due to this, the constitutional aspirations of economic and social justice are sacrificed on a daily basis. It is in the above context that we need to resolve the issues concerned herein. 26. In Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, this Court observed: "68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues ....
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....trustee or in any other capacity, even if applicant is connected with Sumandeep Vidyapith, which is not a regular University getting Government grant in any manner whatsoever and thereby, when there is no dispute that it is only a Deemed University, the submissions recorded herein above on behalf of the applicant makes it clear that such Deemed University cannot considered as a regular University and thereby, applicant cannot be termed as a public servant and therefore, irrespective of such change report after the complaint, it is clear and obvious that applicant cannot be termed as a public servant." (emphasis supplied) 30. The counsel for the respondent has contended that the term "University" needs to be read in accordance with the Section 2(f), 3 and 23 of the UGC Act, wherein a "deemed University" is different from a "University", stricto sensu. However, we do not subscribe to such contention for the reasons provided below. 31. The contention of the respondent is that the term "University" needs to be read in accordance with the UGC Act, wherein only those Universities covered under the Section 2(f) of the UGC Act are covered under the PC Act. Such an interpretation, by im....
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....in to the same subjectmatter when they relate to the same person or things, or to the same class of persons or things, or have the same purpose or object." ... 58. It can be concluded that though the ESI Act, the 1948 Act and the 1961 Act deal with labour and workmen, in essence and spirit they have a different scope and application. The Acts do not appear to have any overlap in their fields of operation and have mutually exclusive schemes. Therefore, the argument that the Acts are pari materia with each other, must fail. 59. This Court must also address the issue that arose in the course of the arguments that the word "shop" has been used in the impugned notifications as well as the 1948 Act and the 1961 Act and therefore assistance may be taken from the latter statutes to interpret the notification. This argument, in light of the above discussion, does not appeal to us..." (emphasis supplied) It is for the same reasoning that we are of the opinion that the High Court's reliance on the judgment of this Court in Orissa Lift Irrigation Corporation Ltd. v. Rabi Sankar Patro, (2018) 1 SCC 468 was not appropriate, as the same was with reference to enactments relating to administr....
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....nt of the PC Act. It was uniform across the party line that the purpose of preventing corruption in educational institutions was emphasised. 38. Coming to external aids of interpretation, the word "University" is etymologically derived from the Latin, universitas magistrorum et scholarium, which roughly means "community of teachers and scholars". Black's Law dictionary defines "University" as: "An institution of higher learning, consisting of an assemblage of colleges united under one corporate organization and government, affording instruction in the arts and sciences and the learned professions. and conferring degrees. See Com. v. Banks, 198 Pa. 397. 48 Atl. 277." 39. Law Lexicon, defines the same as: "A corporation of teachers or assemblage of learned men or colleges for teaching the higher branches of learning: ;and having power to confer degrees. University. A place where all kinds of literature are universally taught. (Tomlin's Law Dic.) See also Act VIII of 1904, S.2, Cl. (2)(c). A University, of normal type, may be described in popular language as an organization of teachers and learners, settled in a fixed locality, for the purpose of nature study, in which the....
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....associated body without a special authority for that purpose from the government or sovereign power." 42. Under the UGC Act, University is defined and recognized under Section 2(f) in the following manner: "University" means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recoginsed by the Commission in accordance with the regulations made in this behalf under this Act. 43. A 'deemed to be University' is recognized under Section 3 of the UGC Act, in the following manner: Application of Act to institutions for higher studies other than Universities 3. The Central Government may, on the advice of the Commission, declare by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of section 2. 44. As discussed earlier, the object of the PC Act was not only to preven....
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....988, a person who holds an office by virtue of which he is authorised or required to perform any public duty, is a public servant. Now, for the purposes of the present case this Court is required to examine as to whether the Chairman/Managing Director or Executive Director of a private bank operating under licence issued by RBI under the Banking Regulation Act, 1949, held/holds an office and performed/performs public duty so as to attract the definition of "public servant" quoted above." (emphasis supplied) 47. This Court in the case of P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626, has clarified the word "office" in the following manner: "61. ... The word 'office' is normally understood to mean 'a position to which certain duties are attached, especially a place of trust, authority or service under constituted authority'. (See Oxford Shorter English Dictionary, 3rd Edn., p. 1362.) In McMillan v. Guest, (1942) 1 All ER 606 (HL), Lord Wright has said: '...The word "office" is of indefinite content. Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following: "A position or place to whic....
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....rein State, the public or community at large has any interest is called a public duty. The first explanation to Section 2 further clarifies that any person who falls in any of the categories stated under Section 2 is a public servant whether or not appointed by the government. The second explanation further expands the ambit to include every person who de facto discharges the functions of a public servant, and that he should not be prevented from being brought under the ambit of public servant due to any legal infirmities or technicalities. 51. In the present case, on a primafacie evaluation of the statements of the Gaurav D. Mehta (the ViceChancellor); Mr. Pragneshkumar Rameshbhai Trivedi (account officer of Sumandeep Vidhyapith University) and other witnesses it appears that the present respondent was the final authority with regard to the grant of admission, collection of fees and donation amount. 52. The charge sheet specifically discloses that the respondent allegedly was collecting certain extra amount over the prescribed fees on the pretext of allowing the students to fill up their examination forms. Therefore, paying the respondent the alleged amount was a condition prece....
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.... into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him." 55. Further, in Sajjan Kumar v. Central Bureau of Investigation, 2010 (9) SCC 368, this Court, inter alia, observed : "21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: ... (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial..." 56. Therefore, in line with the aforesaid proposition, this case is not an appropriate one to have exercised the power under Section 227 to discharge the accused-respondent ....
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....ic office." 6. There are number of judicial precedents dealing with the definition and meaning of corruption. The simplest definition of corruption is, any act or omission by a public servant for securing pecuniary or other material advantage directly or indirectly for himself, his family or friends. It will be apposite to refer the provisions of the Act, 1988 relevant for the purpose ad infra:( c) "public servant" means - (i)-(x)..... (xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any their 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)..." (Emphasis supplied) 7. It will be relevant to note that prior to the Act, 1988, employees of the university, professors, readers, etc. were not covered within the definition of 'public servant' as it was contained in Section 21 of the Indian Penal Code. Thrust of submission of the learned counsel for the respondent is that respondent herein who is a trustee of deemed to be university which cannot by an....
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....r being declared by the Central Government by notification in the Official Gazette, shall be deemed to be university for the purposes of this Act and all provisions of the UGC Act shall apply to such institutions as if it were a university within the meaning of clause (f) of Section 2 of the Act. 10. It cannot be lost sight of that the Act, 1988, as its predecessor that is the repealed Act of 1947 on the same subject, was brought into force with avowed purpose of effective prevention of bribery and corruption. The Act of 1988 which repeals and replaces the Act of 1947 contains a definition of 'public servant' with vide spectrum in clause (c ) of Section 2 of the Act, 1988, so as to purify public administration. The objects and reasons contained in the Bill leading to passing of the Act can be taken assistance of, which gives the background in which the legislation was enacted. When the legislature has introduced such a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing the growing menace of corruption in the society imparting public duty, it would be apposite not to limit the contents of the definition clause by construction which would be....