TaxTMI 
TaxTMI 
2015 (12) TMI 1920
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....nd eventually to the post of General Manager, which post he held till his retirement. Be it stated, while he was in service, he received a notice signed by the Deputy Superintendent of Police, Anti Corruption Bureau, Osmanabad requiring him to give details of the property acquired by him. In response to the said letter, the respondent on 15.2.2001 replied that the provisions of Prevention of Corruption Act, 1988 (for short, "the 1988 Act") was not applicable to him. After his superannuation, he received two letters from the same investigating authority to attend an enquiry so that his statement could be recorded in respect of his properties and expenditure, to which he replied. Thereafter, he preferred Criminal Writ Petition No. 729 of 2006 before the High Court of Judicature of Bombay, Bench at Aurangabad, assailing the notices which were in the realm of investigation. 2. The principal plank of submission in the writ petition was that he was not a public servant as defined under sub-section (c) of Section 2 of 1988 Act and he cannot by any means of interpretation of Section 21 of the Indian Penal Code (IPC) be treated as such. On behalf of the State and the investigating agency....
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.... proceeded further to state as follows :- "We are, therefore, of the opinion that the petitioner who discharged his duties as General Manager could not be termed as a 'public servant' as defined in the Prevention of Corruption Act, 1988. Under the provisions of the Banking Regulation Act 1949 the Central Government or any authority of the Government, the Reserve Bank of India exercise regulatory control over the Bank which is registered under the multi-State Cooperative Societies Act. The said control exercised by these authorities would not be termed as deep and pervasive one. The day to day activities, the internal management are not at all governed and controlled by the Government or its authorities. The Bank is not aided one or funded in any manner by the Government or its authorities. The service conditions of its employees are not regulated by the State or the Central Government or its authorities. Respondent No.3 is, therefore, not competent to initiate action under the provisions of the Prevention of Corruption Act against the petitioner. The impugned notices issued to the petitioner by the respondent No.3 are without jurisdiction and null and void. The not....
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....Mr. Chaudhari that the provisions of Banking Regulation (Amendment) and Miscellaneous Provisions Act, 2004 would not be attracted to this case inasmuch as the administration of the multi-state cooperative society vests in the general body and by virtue of the powers enumerated under the 1949 Act to be exercised by the Reserve Bank of India would not tantamount to control over the cooperative bank and hence, he cannot be treated as a public servant. To bolster his submissions, he has placed reliance on Samrao Vitthal Cooperative Bank Ltd. & Anr. v. Padubidri Pattabhiram Bhat & Ors.[AIR 1993 Bom 91], State of U.P. v. Vishwanath Kapoor & Ors. [1980 CrLJ 494], Hanmant Janardhan Patil v. State of Maharashtra [1993 Mh.LJ 511], Executive Committee, Vaish Degree College, Shamli & Ors. v. Lakshmi Narain & Ors. [(1976) 2 SCC 58], Federal Bank (supra), S.S. Dhanoa v. Municipal Corporation, Delhi & Ors. [(1981) 3 SCC 431], and S.S. Rana (supra). 9. Firstly, we shall refer to some of the authorities cited at the Bar. In Samrao Vitthal Cooperative Bank Ltd. (supra), High Court of Bombay was dealing with the issue whether the appellant Bank was "State" within the meaning of Article 12 of the C....
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....ion does not apply tests to determine when an organisation can be considered as "State" under Art. 12 correctly". 10. In S.S. Rana (supra), while dealing with the maintainability of a writ petition by an employee working in a Cooperative Bank under the Himachal Pradesh Cooperative Societies Act, 1968, this Court referred to the earlier decisions, namely, Ajay Hasia (supra) and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [(2002) 5 SCC 111], opined that the society did not satisfy the tests laid down in the case of Pradeep Kumar Biswas (supra) and hence, the High Court was not in error in arriving at the conclusion that the society was not a State under Article 12 of the Constitution. 11. In this regard, it is profitable to refer to Gayatri De v. Mousumi Cooperative Housing Society Ltd. and others [(2004) 5 SCC 90] wherein the Court held as follows :- "54. In the case of S.R. Tewari v. Distt. Board, Agra [AIR 1964 SC 1680] this Court held that the powers of statutory authorities are always subject to the statute which has constituted it and must be exercised consistently with the statute, and the courts have, in appropriate cases, the power to declare ....
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....the judgment in the case of State of Maharashtra v. Prabhakarrao [(2002) 7 SCC 636]." 13. In Rameshwar (supra), the issue that arose before this Court was whether the respondent therein was a public servant for the purposes of the 1988 Act, regard being had to the fact that he was a Director of Indore Premier Cooperative Bank Ltd. On behalf of the State, reliance was placed on Section 87 of the M.P. Cooperative Societies Act, 1960 which provides that Registrar and other officers as well as employees of a cooperative bank or a cooperative society would be deemed to be public servants under the 1988 Act and on that basis the Court came to hold that the Chairman and the Executive Officer of the Bank would come within the definition of "public servant" under Section 2(c) (ix) of the 1988 Act. On a perusal of the judgment it appears that the Court has been persuaded by the conferment of status on the officers of the bank as public servants and the definition of the "public servant" under the 1988 Act. 14. As far as State of Madhya Pradesh is concerned, there is no difficulty as the M.P. Cooperative Societies Act, 1960 itself declares the authorities as public servant. The issue th....
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....ection 2(c)(ix) on which immense thrust has been given by the learned counsel for the State on the basis of certain authorities of this Court, reads as follows :- "(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);" 16. On a perusal of the decisions of this Court, it is manifest that stress has always been laid on Section 2(c)(ix) of the 1988 Act as a consequence of which the fall out is that the registered cooperative society must have received financial aid from the Central Government or the State Government or any other institution mentioned therein. 17. The High Court has referred to various provisions of the 1949 Act and proceeded on the status of cooperative society and eventually has held that :- "So far as t....
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.... included in the definition of "public servant". 4. The question for consideration is whether the accused in the present case comes within the purview of the aforementioned clauses or any other clause of Section 2(c) of the Prevention of Corruption Act, 1988. For determination of the question, enquiry into facts, relating to the management, control and funding of the society, is necessary to be ascertained." 20. As we notice, the High Court has really been swayed by the concept of Article 12 of the Constitution, the provisions contained in the 1949 Act and in a mercurial manner taking note of the fact that the multi-state society is not controlled or aided by the Government has arrived at the conclusion. In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term 'aid' has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of 'public servant'. The concept in entirety has to be understood in the backdrop of corruption. In Shri Ram Singh (supra), thi....