2. Public Servant



2.1 ‘Public Servant’ is a unique term in anti-corruption law, being the deciding factor at the threshold, of one’s liability, depending on his being a public servant.

2.2 The term ‘public servant’ was not defined under the Prevention of Corruption Act, 1947 and the Act adopted the definition of the term under sec.21 of the Indian Penal Code. The P.C. Act of 1988 provided a wider definition in the Act itself under cl. (c) of sec.2. Section 21 I.P.C. is a valid provision; still but it does not apply to the P.C.Act, 1988. The following are the salient aspects of the new definition.

2.3 While under sec.21 IPC, the emphasis is on the authority employing and the authority remunerating, under cl. (c) of sec. 2 of the P.C.Act, the emphasis is on public duty. Public duty has been defined under cl.(b) of sec.2 of the Act to mean a duty in the discharge of which the State, the public or the community at large has an interest. Section 2(c) of the P.C.Act or for that matter sec.21 IPC does not define the term ‘public servant’ as such; it enumerates the functionaries who are to be treated as ‘public servants’. The enumeration in the sub-clauses is not mutually exclusive.

2.4 Thus, 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, or 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 servants 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 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 officebearer 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 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 form the Central Government or any State Government, or local or other public authority.
Explanation 1: Persons falling under any of the above subclauses 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”.

2.5 A Minister, Prime Minister and Chief Minister inclusive, is decidedly a public servant in terms of cl.(12) of sec. 21 IPC itself, which corresponds to cl.(i) of cl.(c) of sec. 2 of the 1988 Act. The Supreme Court held that a Minister is appointed and dismissed by the Governor and is therefore subordinate to him, that he gets salary for the public work done or the public duty performed by him and that the said salary is paid to him from the Government funds (M.Karunanidhi vs. Union of India, 1979 Crl.L.J.773: AIR 1979 SC 598).

2.6 M.L.A., it was however held, is not a public servant under Sec.21 IPC but he comes within the purview of the new cl.(viii) of cl.(c) of sec. 2 of the 1988 P.C.Act as, as held by the High Court of Orissa, an M.L.A. “holds an office” and “performs public duty” (Habibulla Khan vs. State of Orissa, 1993 Crl.L.J. 3604). In the appeal, the Supreme Court proceeded “assuming” that M.L.A. is a public servant (Habibulla Khan vs. State of Orissa 1995 Crl.L.J.2071). In a later decision in the case of P.V. Narasimha Rao vs. State (C.B.I.), 1998 Crl.L.J.2930 (decided on 17-4-1998), a 5-judge Bench of the Apex Court laid down that a Member of Parliament holds an office and by virtue of such office he is required or authorised to perform duties and such duties are in the nature of public duties. An MP would therefore fall within the ambit of sub-cl.(viii) of cl.(c) of section 2 of the Prevention of Corruption Act, 1988 even though there is no authority who can grant sanction for his prosecution under section 19(1) of the Act. Sanction is not necessary for the court to take cognizance of the offences and the prosecuting agency shall, before filing a charge sheet for offences punishable under sections 7,10,11,13 and 15 of the Act against an M.P. in a criminal court, obtain the permission of the Chairman of the Rajya Sabha or Speaker of the Lok Sabha as the case may be.