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Author Topic: Defination of Public Duty  (Read 671 times)

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Offline aniket305

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Defination of Public Duty
« on: November 24, 2017, 03:58:31 AM »
Last year supreme court judgment (Ramesh Gelli vs CBI) in that Court dismissed hi crinimal revision application stating that he is public servant u/s 46A of BR act, he hold an office as he was chairman of Global Trust Bank and also he was discharging public duty. My question is whether following person/institution covers public duty 1. Principal and Employees of Educational Institution without Govt Aid. 2. Director and employees of Private companies dealing with public like private hospitals, finance company, super markets like big bazar & D mart etc 3. Contractor of government and PSU contracts.

Offline kalaskarkk

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Re: Defination of Public Duty
« Reply #1 on: December 26, 2017, 03:06:29 AM »
Dear Sir,

The Hon'ble High Court of Kerala extensively dealt with the definition of "Public Duty", you may refer in full and it may be useful to you:

With regards,

Kishan Dutt Kalaskar
Retd Judge

K.Balaji Iyengar vs State Of Kerala on 26 October, 2010
       

 

 

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 2726 of 2009()


1. K.BALAJI IYENGAR,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. MR.T.C.MATHEW,

3. MR.T.R.BALAKRISHNAN,

4. THE DEPUTY SUPERINTENDENT OF POLICE,

                For Petitioner  :SRI.K.RAMAKUMAR (SR.)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :26/10/2010

 O R D E R
            M.SASIDHARAN NAMBIAR,J.
          ===========================
          CRL.M.C.No. 2726    OF 2009
          ===========================

    Dated this the 26th  day of October,2010

                     ORDER
Whether office bearers of Kerala Cricket Association are public servants as defined under section 2(c) of Prevention of Corruption Act, 1988 is the question to be settled in the petition.

2. Petitioner filed Annexure A complaint before Special Judge (Vigilance), Thrissur against respondents 2 and 3, who are respectively the Secretary and President of Kerala Cricket Association and 91 others, including the players and office bearers of District Cricket Association alleging that they committed various corruption and misappropriation as alleged in the complaint and therefore a detailed and in-depth investigation is necessary. Petitioner sought an order under section 156(3) of Code of Criminal Procedure to register and investigate a case for the offence under sections 13(1)(c)and (d) read with section 13(2) of Prevention of Corruption Act, 1988 and Sections 201, 409, 420, 468, 471, 477 and S.120B of Indian Penal Code. The Special Judge (Vigilance) forwarded the complaint to the Director of Vigilance and Anti Corruption Bureau under section 156(3) of Code of Criminal Procedure, to register a case and investigate. Based on the order, Crime 1/2009 of Vigilance and Anti Corruption Bureau, Ernakulam was registered under Annexure B F.I.R. Respondents 2 and 3 challenged the said order passed by the Special Judge before this Court in W.P.(C)15682/2009 contending that Special Judge mechanically sent the complaint for investigation without considering the question whether respondents 2 and 3 would come within the definition of public servants as defined under the Prevention of Corruption Act and without conducting an inquiry as provided in Sirajudeen v. State of Madras (AIR 1971 SC 520) the F.I.R could not have been registered. This Court by Annexure C judgment dated 30.3.2009 found that the learned Special Judge has not applied his mind to the crucial facts raised by respondents 2 and 3 and directed registration of the crime. Therefore the order passed by the Special Judge(Vigilance) was set aside and remitted the CMP to the Special Judge to reconsider the question after hearing all the concerned on the points raised and to proceed in accordance with law. Petitioner challenged Annxure C order before the Honourable Supreme Court by filing Annexure R2(q) Special Leave Petition (Civil). By Annexure R2(r) order dated 17.7.2009, the Special Leave Petition was dismissed. Learned Special Judge thereafter heard the petitioner as well as respondents 2 and 3 and by Annxure D order found that respondents 2 and 3 are not public servants as defined under section 2(c) of Prevention of Corruption Act and therefore the Special Court is not having jurisdiction to take cognizance of the offences and returned the complaint for presentation before the proper court. Annexure D order is challenged in this petition filed under section 482 of Code of Criminal Procedure.

3. Petitioner would contend that Kerala Cricket Association is a member of BCCI and is the recognised association for promotion of cricket within the State of Kerala under the overall control of BCCI and Kerala Cricket Association received huge amount of funds from BCCI and Kerala Sports Council. It is alleged that for promotion of cricket, Kerala Cricket Association received Rs.28 crores 41 lakhs from the BCCI and it is a registered society under the Travancore Cochin Literary Scientific and Charitable Societies Act and it received a grant of Rs.1,88,000/- from the State Government and the Association is exempted from stamp duties and entertainment taxes by the Government of Kerala during 2007-2008 and the funds received by the Association from BCCI and Sports Council are exclusively meant for promotion and betterment of cricket and cannot be misappropriated or used for the pecuniary advantage of its office bearers and respondents 2 and 3 abused their official position as public servants and committed the offences under section 13(1)(c) and (d) read with section 13(2) of Prevention of Corruption Act. It is alleged that the Special Judge(Vigilance) did not consider the question in the proper perspective and instead based on the fact that Cricket Association is not a State as provided under Article 12 of the Constitution of India, held that respondents 2 and 3 are not public servants and the Special Judge did not even consider the nature of the duties required to be performed by respondents 2 and 3 in their capacity as office bearers of Kerala Cricket Association and they are public servants under section 21 of Indian Penal Code and the impugned order was passed without considering the relevant facts. It is contended that the accused are performing public duties which are wholly public in nature and confers exclusive powers and privileges on them affecting interest of the public, and is State financed and the rights of the cricketers in the whole State are regulated by the Association and therefore it should have been found that they are public servants. It is also contended that the Special Judge without jurisdiction afforded a hearing to the accused when they are not entitled to be heard at that stage and a direction to investigate the case should have been passed.

4. Second and third respondents also filed a counter affidavit contending that Kerala Cricket Association is a society registered under Travancore-Cochin Literary, Scientific and Charitable Societies Act and functioning under a bye-law. There are 14 District Associations as units of Kerala Cricket Association to achieve the aim and object as laid down in the bye-laws. Petitioner was the Vice President of Kottayam District Cricket Association for the period 2001- 2005. Though Kerala Cricket Association convened annual General Body Meeting of Kottayam District Cricket Association, election did not take place as there was dispute between two factions. Kerala Cricket Association appointed a four member enquiry committee to assess the affairs of Kerala Cricket Association and on the report so submitted appointed an adhoc committee to take charge the affairs of the District Association and decided to dissolve the District Committee. Kerala Cricket Association convened an Annual General Body meeting as directed by this court to elect the office bearers and petitioner and his followers did not attend the meeting. Though petitioner filed a Writ petition to set aside the election, it was dismissed by Annexure R2(a) judgment. Though petitioner filed O.S.438/2006 before Munsiff Court, Kottayam suppressing Annexure R2(a), it was dismissed under Annexure R2(b) judgment. Petitioner is thus nurturing ill will against Kerala Cricket Association. Kerala Cricket Association received Rs.28.42 crore from 2004-2008 from BCCI for promotion of cricket. Rs.1,88,342/- was received from Kerala Sports Council in 2007- 2008 for payment of travelling expenses to Kerala State players and it was returned by cheque and Annexure R2 (c) letter was sent. Annexure R2(d) certificate issued by Kerala Sports Council prove that fact. Kerala Cricket Association is not functioning under Kerala Sports Council and is not an instrumentality of the State. The case of misappropriation or deriving pecuniary advantages are all denied. Kerala Cricket Association is not performing any public duty as provided in Section 2

(b) of Prevention of Corruption Act. Respondents 2 and 3 are not authorised or required to perform any public duty and are not public servants.

5. Learned senior counsel appearing for the petitioner and learned counsel appearing for respondents 2 and 3 and learned Public Prosecutor were heard.

6. The argument of the learned senior counsel is that respondents 2 and 3 are public servants as provided under sub clause (viii) and (xii) of clause (c) of Section 2 of Prevention of Corruption Act (hereinafter referred to as the Act). The argument is that respondents 2 and 3 are holding the offices of Secretary and President of Kerala Cricket Association and in that capacity they are required to perform public duty as defined under clause (b) of Section 2 of the Act. Learned counsel also argued that Kerala Cricket Association though registered under the Travancore Cochin Literary Scientific and Charitable Societies Act, is getting financial assistance from the Kerala State Sports Council and respondents 2 and 3 being the office bearers of the Association are public servants as defined under section 2(c)(xii) of the Act. Learned senior counsel relied on the decision of the Apex Court in Zee Telefilms Ltd and another v. Union of India (2005(4) SCC 649) and submitted that eventhough Cricket Association may not be a State for the purpose of Article 12 of the Constitution of India, as they are required to do public duty which are for the benefit of the public, they would definitely be public servants. Learned senior counsel also argued that as Kerala Cricket Association had received financial aid from Kerala Sports Council, they would definitely come within the ambit of public servants as provided under section 2(c) (xii) of the Act as ambit of public servants under the Act is much wider than the public servant as defined under section 21 of Indian Penal Code. Learned senior counsel also relied on the decision in State of Punjab v. Nirmal Kaur( CDJ 2009 SC 937.)

7. Learned Public Prosecutor supporting respondents 2 and 3 argued that as Kerala Cricket Association had received financial assistance from the Sports Council, respondents 2 and 3 cannot contend that they will not be public servants as provided under sub clause (xii) of Clause 2(c) of the Act. Learned Public Prosecutor also submitted that consequent to the registration of the case, during investigation materials could be unearthed to show that Kerala Cricket Association had received funds from the State and had not properly accounted the collections in the one day matches held at Kochi and in such circumstances a detailed and effective investigation is necessary.

8. Learned counsel appearing for respondents 2 and 3 submitted that though on two occasions financial assistance was provided by the Kerala Sports Council, it was not a financial aid to Kerala Cricket Association but travelling allowances to the players and it was only routed through the Kerala Cricket Association and for the second time the amount was repaid to the Sports Council as Kerala Cricket Association is having sufficient financial capacity. Learned counsel pointed out that to attract sub clause (xii) of clause (c) of Section 2 of the Act, respondents 2 and 3 must be office bearers or employees of an educational, scientific, social, cultural or other institution, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority and when the Cricket Association has not received or is receiving any financial assistance from either the Central Government or the State Government or local or other public authority, the office bearers cannot be public servants as canvassed by the petitioner. Learned counsel also argued that to attract sub clause (viii) of clause

(c) of Section 2 of the Act, respondents 2 and 3 should hold an office by virtue of which they are authorised or required to perform any public duty and under clause (b) of Section 2 of the Act, such duty must be in discharge of which the State, public or community at large has an interest and respondents 2 and 3 in their capacity as Secretary and President of the Kerala Cricket Association are neither authorised nor required to perform any public duty. It was pointed out that the duty to be performed by respondents 2 and 3 in their capacity as Secretary and President are enumerated in the bye-laws of the Cricket Association, a copy of which was produced by petitioner as Annexure F and Annexure F shows that they are not required to perform any public duty as provided under clause

(b) of Section 2 of the Act and therefore they cannot be public servants.

9. The learned counsel appearing for the petitioners and respondents and learned Public Prosecutor submitted that the question whether an office bearer of the State Cricket Association or the BCCI is a public servant as defined under section 2(c) of the Act has not been decided by the Honourable Supreme Court or any other High Court. Therefore the question has to be decided on proper analysis of the provisions.

10. The definition of 'public servant' under section 2(c) of the Act is much wider than the definition of public servant under section 21 of Indian Penal Code. As the only contention is that respondents 2 and 3 are public servants as defined under sub clause (viii) and (xii) of Section 2

(c), it is not necessary to consider the other sub clauses in clause (c) of Section 2. The relevant sub clauses as defined under section 2(c) reads:-

"viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;

            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."



11.First Explanation of Clause (c) provides that persons falling under any of the sub clauses are public servants, whether appointed by the Government or not. Second Explanation provides that wherever the word '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.
12. Public duty is defined under clause (b) of Section 2 as follows:-

"public duty" means a duty in the discharge of which the State, the public or the community at large has an interest."
13. Under sub clause (viii), any person who holds an office by virtue of which he is authorized or required to perform any public duty is a public servant. Public duty as provided under the sub clause means a duty in the discharge of which the State, the public or the community at large has an interest. As rightly argued by the learned counsel appearing for respondents 2 and 3, the public or the community at large may have some interest in the performance of an act by a private individual. But for the reason that either the public or the community at large has an interest, on that act, it cannot be said that the private individual is a public servant as defined under sub clause (viii) of Section 2 (c). The performance of that public duty must be which, he is either authorized to do or required to perform, as he holds the office. Even if an act performed by a person is beneficial to the public or to the community at large and therefore the community has an interest on its performance, that by itself will not make the act a public duty or the person a public servant. It must be shown that the person is either required to perform or authorized to perform the same by virtue of the office which he is holding. The question is whether the duty to be performed by respondents 2 and 3 as Secretary and President of Kerala Cricket Association are public duties and if so, whether they are public servants as defined under sub clause (viii) of clause (c) of Section 2.

14. In order to attract sub clause (viii), the person must firstly hold an office. Secondly by virtue of that office he should be authorised to do a public duty or required to perform a public duty. Therefore even if a person is holding an office, but if by virtue of that office he is not authorised or required to perform any public duty, for the reason that he is holding an office, he will not be a public servant as defined under sub clause (viii). The essence of sub clause (viii) is that the person who holds the office, shall by virtue of that office, either be authorised or required to perform any public duty. The next question is what is public duty. Only if the public or the State or the community at large has an interest in that duty to be performed, it would be a public duty as provided under clause (b) of Section 2. Therefore if a person has to perform a duty and either the State, the Public or the community at large has an interest in that duty to be discharged by that person, the duty would be public duty as defined under clause (b) of Section 2 of the Act. The question then is what is the duty, in the discharge of which State, public or the community at large has an interest.

15. Word "duty" is not defined under the Act. Duty is defined in Encyclopedic Law Lexicon by Justice C.K.Thakkur Vol.2 2008 Edn. at page 1586 as follows:-

"The word "duty" connotes obligation. A Court or individual is said to be under a duty only when such Court or the person concerned is bound to perform the function. The word "duty" will not be apt in the context of a discretion to do the particular thing. That expression denotes that one cannot refute to perform the act but is bound to do it."
Black's Law Dictionary 7th edn. page 521 gives the following meaning to " duty".

"A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right"
16. Annxure E bye-law of Kerala Cricket Association shows the following aims and objects namely:-

a) To instill, promote and propagate interest in Cricket among the people.
b) To popularize, regulate and control Cricket in the State.
c) To participate in, conduct and regulate matches and tournaments.
d) To arrange for the coaching of players.
e) To train and maintain a panel of umpires.
f) To organize and affiliate District Cricket Association; and
g) To resort to all such measures and do all such acts as are conducive to the furtherance of Cricket.
As per the bye-law, the office bearers of the Association are the President, Vice Presidents, Honorary Secretary, Honorary Joint Secretary and the Honorary Treasurer. Under clause 11 of the bye-law, affairs of the Association shall be governed and controlled by the General Body and managed by the Central Council. Under the bye- law Central council shall have the powers as may be specifically allotted to by the General Body in addition to the following powers specifically provided which include-

(a) to carry out the objects of the Association specified in the Memorandum of the Association.
(b) to interpret, make, repeal, amend, add to and maintain or public all necessary regulations, bye- laws. etc.
(c) To allocate the duties of the Honorary Secretaries as between themselves and to define whenever necessary the powers of the office bearers association.
(d)(i) To prohibit any act or practice by any member or by cricketer or professional cricketer serving the Association or an official coach or umpire appointed by the Association which in the opinion of the Council us detrimental to the interests of the game and deal with any member disregarding such prohibition in such manner as it may in its discretion think proper
(ii) To take such action as it deems fit against a District Association including disaffiliation
(e) To arbitrate and to decide all disputes or questions referred to it by the members or by any other person or Association.
(f) To inflict penalties on any member or any person for the infringement of the laws of cricket or the rules of the Association.
(g) To appoint a manager or managers and get his or their assistance to manage tours undertaken by the Association
(h) To invite the co-operation of persons other than its members for any special purpose and to select them as members of any sub-committee.
(i) To reinstate upon teams or otherwise and for good causes any player who has ceased to be an amateur or a professional as the case may be.
(o) To maintain a panel of first class umpires.
(p) To execute, sign, seal, deliver or cause to be executed, signed, sealed and delivered all such agreements, deeds, documents and assurances as may be necessary to carry out the objects of the Association.
(u) To appoint the various selection committees.



              (v) To prescribe norms for the

              satisfactory     conduct     of

              tournaments    by    affiliated

              clubs etc.

Hence being the Secretary and President of the Association, respondents 2 and 3 are required and authorised to perform the duty in furtherance of the said aims and objects of the Association. The question is whether the office bearers of the Cricket Association, who hold office, by virtue of holding the office are authorised or required to perform any public duty.
17. On certain aspects there is no dispute between the parties. The Kerala Cricket Association is a Society registered under Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The Association was not created under any statute. The Association has not only the monopoly status as regards the regulation of the game of cricket in Kerala but can also lay down criteria for its development for all intend and purport. Kerala Cricket Association is recognized by the State of Kerala as the body to promote and regulate the game of cricket. The Kerala Cricket Association has to select the team to represent the State of Kerala in the Ranji Trophy and other allied tournaments. It has to select not only the teams but also umpires. The Association has to organize one day internationals. The team is not known as the team of Kerala Cricket Association but the team representing State of Kerala. If a player is not selected to State team, he cannot aspire to play for the Indian team. Cricket is now not a mere game. The very future of young cricketers, who are professionals thus depend on the Kerala Cricket Association.The decision taken by the Association would thus affect materially the players who have thus an interest on the performance of the duty by the office bearers. Hence for all intent and purport Cricket Association exercises the monopoly of cricket.

18. The Honourable Supreme Court in Zee Telefilms Ltd. and another v. Union of India and others (2005(4) SCC 649)had occasion to consider the character of BCCI to which Kerala Cricket Association is affiliated. Their Lordships held:-

219. "The Board's activities representing" the country are not confined to international forums only. The Board within the country organises and conducts the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodhar Trophy and the N.K.P. Salve Challenge Trophy. Although, these are domestic events, indisputably only those who are members of the Board and/or recognised by it can take part therein and none else. This also goes to show that the Board regulates domestic competitive cricket to the fullest measure and exercises control over its members which represent the five zones in India, all the State federations besides a few other clubs which are its members, two of which it will bear repetition to state, are governmental organisations.
220. Indisputably the Board is a regulator of cricket played at the country level both off and on the fields including selection of players and umpires. ICC possesses and exercises all the powers to regulate international competitive cricket. It exercises disciplinary power also as in case of violation of the Rules, a country member or the player may be derecognised. ICC exercises a monopoly over the sport at the international level whereas the Board does so at the country level. It is the Board only, to the exclusion of all others, that can recognise bodies who are entitled to participate in the nominated tournaments. Players and umpires also must be registered with it. In the event of violation of its Rules and Regulations, which may include participation in an unauthorised tournament without its permission, a player or umpire would forfeit his right to participate in all official cricket matches which for all intent and purport shall be the end of the career of a professional cricketer or umpire.
221. In our constitutional scheme, rule of law would, by all means, prevail over rule of cricket. A body regulating the game of cricket would be compelled by the court to abide by rule of law.
If the promotion of the cricket, selection of the cricket team, the regulation of cricket are all matters which the community at large has an interest, then those duties are to be performed by respondents 2 and 3 as the office bearers of the Cricket Association.

19. Question then is whether the duty to promote the game of cricket in the State of Kerala, duty to select the team to represent the State, duty to regulate the game within the State are public duties as defined under clause

(b) of Section 2. True, a private individual may do acts which may be beneficial to the community at large, though such private citizens are not bound by any law or regulation to do such acts. Therefore for the reason that on such acts being performed by a person in which the community at large has an interest will not make it a public duty. Unless the community at large has a right to enforce the said act or performance, it will not be a public duty. The argument of the learned counsel appearing for respondents 2 and 3 is that the community at large or the public has no right to enforce the performance of the act which respondents 2 and 3 are to be performed as office bearers of the Association and when there is no corresponding right available to the public at large or members of the community, it cannot be termed a public duty. The Honourable Supreme Court in Zee Telefilms Ltd (supra) held:-

136. The Board while enjoying monopoly in cricket exercises enormous power which is neither in doubt nor in dispute. Its action may disable a person from pursuing his vocation and in that process subject a citizen to hostile discrimination or impose an embargo which would make or mar a player's career as was in the case of Greig. The right to pursue an occupation or the right of equality are embedded in our Constitution whereby citizens of India are granted much higher right as compared to the common-law right in England. A body although self- regulating, if performs a public duty by way of exercise of regulatory machinery, a judicial review would lie against it as was in the case of Datafin. The question has since been considered from a slightly different angle viz. when such action affects the human right of the person concerned holding that the same would be public function. (See Donoghue.) If the action of the Board impinges upon the fundamental or other constitutional rights of a citizen or if the same is ultra vires or by reason thereof an injury or material prejudice is caused to its member or a person connected with cricket, judicial review would lie. Such functions on the part of the Board being public functions, any violation of or departure or deviation from abiding by the Rules and Regulations framed by it would be subject to judicial review. Time is not far off when having regard to globalisation and privatisation the rules of administrative law have to be extended to private bodies whose functions affect the fundamental rights of a citizen and who wield a great deal of influence in public life."
Therefore submission of learned counsel appearing for respondents 2 and 3 that though the public or the community may have interest in the performance of the conduct of the Association, what is being performed is not a public duty cannot be accepted. Their Lordships of the Supreme Court in Zee Telefilms Ltd (supra) held:-

"Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian Cricket team, controlling the acitivities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32." (underline supplied).
20. Learned counsel appearing for respondents relying on the decision of the Apex Court in Nirmal Kaur's case (CDJ 2009 SC 937) argued that so long as respondents 2 and 3 are not to performing any public duty as authorised or required by virtue of the offices held by them, they cannot be public servants as defined under sub clause (viii) of clause (c) of Section 2 of the Act. The facts of that case are different. The respondent in that case was running a coaching centre. Charge was framed against him for the offences under sections 420, 465, 467, 468, 471 and 120B of Indian Penal Code and Section 13(1)(d) read with section 13(2) of Prevention of Corruption Act. The trial court framed charge finding that respondent is a public servant relying on sub clause (viii)

(xi) and (xii) of clause (c) of Section 2 of the Act. Their Lordships of the Supreme Court set aside that finding holding that by running a coaching centre, respondent was not performing any public duty. It was held that the submission that he is a public servant, overlooks the basic requirement of sub clauses (viii) of clause (c) of Section 2, which is applicable only when a person holds an office by virtue of which she is authorised or required to perform any public duty. As it is nobody's case that respondent was holding an office by virtue of which she was authorised to perform any public duty, she cannot be a public servant. That principle cannot be made applicable to the case of respondents 2 and 3.

21. It is not disputed that respondents 2 and 3 are holding the offices of the Secretary and President of Kerala Cricket Association respectively. In their capacity as Secretary and President they are authorised and required to perform their duties. When the Kerala Cricket Association is having the monopoly of regulating cricket in Kerala including selection of cricket team for the State, controlling the activities of the players and others involved in the game, the duties authorised or required to be performed by the President and Secretary are public duties, they cannot be heard to contend that they are not performing those public duties as authorised or required by virtue of the office they are holding. Thus when the duties to be performed by the President and Secretary of the Kerala Cricket Association, by virtue of the office they are occupying eventhough Kerala Cricket Association is a society registered under the Travancore Cochin, Literary, Scientific and Charitable Societies Registration Act, 1955, it cannot be equated with the acts voluntarily performed by an individual who runs a coaching centre. Both are distinct and different. Though the public may have interest in the acts performed by a person who is running a coaching centre, he is not performing the said act by virtue of any office held by him. He is not performing it either as authorised or as required by virtue of any office. When respondents 2 and 3 are the office bearers of the Cricket Association and the duties to be performed by them are either as authorised or required by virtue of that office,they would definitely be public duties, if the public or the community at large has an interest in it.

22. Learned counsel appearing for respondents 2 and 3 relied on the decision of the Apex Court in Ramana Dayaram Shetty v. The International Airport Authority of India and others(AIR 1979 SC 1628) and in Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722) and in Federal Bank Ltd v. Sagar Thomas and others (2003) 10 SCC 733) and vehemently argued that respondents 2 and 3 cannot be public servants. The decisions were relied on to support their contention that respondents 2 and 3 will not be public servants as defined under sub clause (xii) of Clause (c) of Section 2(c) of the Act. To attract sub clause (xii) of clause (c) of Section 2, they must be persons who are office bearers or employees 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. True, for the sole reason that Kerala Cricket Association has received financial assistance to be passed over to the players being the travelling expenses or other allowances, it cannot be said that Cricket Association though a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, would come within the ambit of sub clause (xii) of Section 2(c) of the Act. The statement submitted by the fourth respondent, the Deputy Superintendent of Police, Vigilance & Anti Corruption Bureau who investigated the case and collected some evidence based on the F.I.R, which was originally recorded as directed by the Special Judge, which order was subsequently set aside by this court, reveals that Kerala Sports Council had paid Rs.33,675/- on 14.10.2003, Rs.32,475/- on 12.10.2004, Rs.5000/- on 14.10.2004, Rs.31,025/- on 11.11.2004, Rs.28375/- on 17.11.2004, Rs.12,000/- on 25.11.2004, Rs.6000/- on 28.2.2005, Rs.1,27,820/- on 5.5.2007, Rs.60,522/-on 21.6.2007. Ext.R2(e) statement filed by the Kerala Sports Council in W.P.(C)19994/2008 produced by respondents 2 and 3 show that Kerala State Sports Council, a statutory body as per Kerala Sports Act, 2000 functioning under Grant -in -Aid of Government of Kerala, recognised Kerala Cricket Association as one of the State Sports associations in Kerala. An association so recognized is eligible for Grant-in-Aid. But such associations are not under the full supervision or control of the Kerala State Sports Council. Though grant was provided to Kerala Cricket Association by Kerala State Sports Council up to 2006, it was received only in June 2007. Thereafter Kerala Cricket Association has not received any aid under the Grant-in-Aid Regulations of the Kerala State Sports Council. Relying on Annexure R2(n) learned counsel appearing for respondents 2 and 3 pointed out that Rs.34,560/- received earlier was remitted back by the Cricket Association on 14.1.2009. Learned counsel appearing for respondents 2 and 3 therefore contended that when Cricket Association had received some amount from the Kerala Sports Council and that too to be paid to the respective players being their travelling expenses and other allowances, it cannot be treated as an aid to the Association and at best it could only be a financial aid provided by the Kerala Sports Council to the respective players. It is therefore argued that Kerala Cricket Association is not receiving any financial assistance from the Central Government or State Government or Local or public authority, and hence respondents 2 and 3, being the office bearers, will not be public servants as provided under sub clause (xii) of clause (c) of Section 2 of the Act.

23. The Honourable Supreme court in Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489 considered the question whether receipt of financial assistance which is not extensive by itself make a body an instrumentality or agency of the Government, so as to attract Article 12 of the Constitution of India. Their Lordships held that there are several factors which may have to be considered in determining whether a Corporation is an agency or instrumentality of the government and they could be summarised as "(1)whether the entire share capital is held by the Government (2) whether the financial assistance of the State is so much as to meet almost the entire expenditure of the Corporation.

3) whether the Corporation enjoys State conferred or State protected monopoly status

4) whether the functions carried out by the Corporation are public functions closely related to governmental functions and

5) whether a department of the Government is transferred to a Corporation.

These tests to determine whether a Corporation can be said to be the instrumentality or agency of the State was subsequently accepted by the Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722) went one step further and held that a society registered under the Societies Registration Act would also be an instrumentality of the State for the purpose of the term "other authorities" in Article 12. The said decision was in direct conflict with the earlier Constitution Bench decision in Sabhajit Tewary v. Union of India (1975) 1 SCC 485) where it was held that a body registered under a statute and which was not performing important State functions or which was not under the pervasive control of the State cannot be considered as an instrumentality of the State for the purpose of Article 12. Hence the question was referred to a larger Bench of seven Judges in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111). The larger Bench after discussing the various case law laid down the following parameters for gauging whether a particular body could be termed a State for the purpose of Article 12 as follows:-

1. Principles laid down in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must ex hypothesi, be considered to be a State within the meaning of Article 12.
2) The question in each case will have to be considered on the basis of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government.
3) Such control must be particular to the body in question and must be pervasive.
4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State.
Analysing the earlier decisions their Lordships of the Supreme court in Federal Bank Ltd v. Sagar Thomas and Others (2003) 10 SCC 733) held:-

"From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State Government), (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; an (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function."

24.But these principles are not very relevant in deciding the question involved in this case. The question is not whether the Kerala Cricket Association is an instrumentality of the State under Article 12 of the Constitution. Even if Cricket Association is not an "other authority" and thereby not an instrumentality of the State, for the purpose of Article 12 of the Constitution of India, if the Secretary and President of the Association, who hold those offices are authorised or required to perform any public duty by virtue of holding their offices, they would be public servants as defined under sub clause

(viii) of clause (c) of Section 2 of the Act. Though it was submitted that if office bearers of the society are public servants as provided under sub clause (viii), sub clause (xii) would be redundant, it is not the case. Sub clause (xii) is attracted to an office bearer or an employee of a society as provided thereunder, only if the society is receiving or having received any financial assistance from the Central or State Government or local or public authority. The requirement or authorisation to perform a public duty, as provided under sub clause (viii), is not relevant in sub clause (xii), so also the question whether the body in which the person holds office is receiving or having received financial assistance from the State or Central Government or local or public authority is not relevant factor to attract sub clause (viii). Hence the submission that sub clause (xii) would be redundant is not correct.

25. I have already found that respondents 2 and 3 are respectively holding the offices of Secretary and President of the Kerala Cricket Association. It is also found that they are authorised or required to perform public duties by virtue of holding the said offices. Therefore respondents 2 and 3 are public servants as defined under sub clause (viii) of clause (c) of Section 2 of the Act.

26. If that be so, the finding of the learned Special Judge (Vigilance) that respondents 2 and 3 are not public servants and therefore Special Judge (Vigilance) has no jurisdiction to entertain the complaint is not sustainable.

27. Learned counsel appearing for respondents 2 and 3 pointed out that petitioner, who was an office bearer of the District Association, who was subsequently ousted because of allegations against him, filed the complaint only for the purpose of maligning the office bearers of Cricket Association and therefore the complaint is malafide, the character of the complainant is not a relevant factor to decide the question involved in this case. Even if the complainant is involved in other cases or is not a person of good character, that by itself is not a ground to reject the complaint.

28. Learned counsel appearing for respondents 2 and 3 further argued that the complaint on the face of it will not lie as the accused shown are not only the office bearers of the Kerala Cricket Association and 93 persons were impleaded as the accused including players and that too even juvenile and therefore the complaint is to be rejected. Learned counsel also argued that a perusal of Annexure A complaint establishes that it was filed raising baseless allegations and warrants no investigation. I do not find that it is for this court to consider whether there is any merit in Annexure A complaint, as it is the function of the Special Judge(Vigilance) to decide that question. As is clear from the impugned order, learned Special Judge did not entertain the complaint and returned it for presentation before proper court for the sole reason that respondents 2 and 3 are not public servants as provided under clause (c) of Section 2 of the Act. When it is found that respondents 2 and 3 are public servants, it is for the Special Judge to decide what action is to be taken on Annexure A complaint and it is not for this court to decide the question in a petition filed under section 482 of Code of Criminal Procedure.

Petition is allowed. The order dated 7.8.2009 of Special Judge(Vigilance), Thrissur in CMP 2777/2008 is set aside. CMP 2777/2008 is remitted to the Special Judge (Vigilance) for fresh consideration in accordance with law in the light of the findings given earlier. Send back the records.

M.SASIDHARAN NAMBIAR JUDGE tpl/-

M.SASIDHARAN NAMBIAR, J.

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JUDGMENT SEPTEMBER,2006
Regards:

Kishan Dutt Kalaskar
Retd Judge and Advocate
No.74, 1st Floor, “Disley”  House,
Malleswaram, Bengaluru-560003.
Mob: 9686971935, 080-23461189
kalaskarnetra@gmail.com
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