Who are Public Servants within meaning of the Prevention of Corruption Act

Posted Saturday November 14, 2015 by CSLRA India

Who are “Public Servants”?

          Law does not strictly define public servants apart from Section 2(c) of the Prevention of Corruption Act, but describes them only by enumeration, which itself is merely illustrative and by no means exhaustive. Speaking generally a “Public Servants” must firstly be a servant and secondly a public servant. Ordinarily the word ‘servant’ means stipendary servant, but it is not necessary that a servant in this connection must be a salaried one. It was observed in “Parmeshwar Datt vs Emperor[1]” that a person holding a honorary office of responsibility is as much a servant as one who is paid for his services. Thus a person who was remunerated by a fees on processes served by him in a Collector’s court[2], or a candidate entertained without any pay in the Tehsil office for learning work in hope and expectation of eventually being taken in staff[3], were both held to be public servants. But in order to be a public servant but should also be recognized as filling that position.

        In ‘Nazammuddin vs. Emperor[4] a public servant is one who has to discharge some public duty. The word ‘Public duty’ has not been defined any where in the code for it is diverse and variable. But the functions performed by public servants have one common feature-that it is a function of government, the executive of which is delegated to its servants in the course of administrative necessity. Thus all the persons who discharge the delegated functions of administration are public servants[5].

          There is no corresponding provision in the Prevention of Corruption Act of 1947. It is for the first time that the term ‘Public Duty’ is defined in Prevention of Corruption Act, 1988. “Public duty” is defined in sec. 2(b) to mean a duty in the discharge of which the state, the public or the community at large has an interest[6]. As per this definition all persons having to discharge delegated functions of administration of the state are public servants. The position held by the public servant is immaterial. The public servant may be ever so exalted or menial, but so long as he is discharging the public duty fulfils the other conditions of Clause (c) he would be a public servant[7]. Explanation (2) to section 2(c) makes it clear that a person who is in actual possession of the situation of a public servant would be taken as a public servant even though in his case there may be some legal defect in his right to hold that situation[8].

          Public servants known to the law are statutory and those mentioned in section 2(c) of the Prevention of Corruption Act. Statutory Public Servants owe their status to some statute. Local or special law have declared certain functionaries as public servants, they are designated statutory public servants and in their case it is not necessary to refer to the section, though they must necessarily fulfill its requirements.

          But they have been so declared in order to place their status beyond contest[9].   A person may be declared to be a public servant by a statute, but such declaration would not necessarily make him a public servant with in the meaning of this Act, unless he possesses any of he qualifications there in described, though he will, of course, be a public servant for other purposes in accordance with the provisions of the statute.

          Another point important to note is that a public servant need not necessarily be appointed by Government[10]. This is obvious from the Explanation (1). But where a person is appointed on retainership on part time arrangement without giving him benefits of privileges of a Government servant, he cannot be said to be a public servant[11].

[1] I.L.R.8, All.201 followed in Emperor vs Ram Chandra Sahu, AIR 1933 Pat 187

[2] Queen vs. Ram Kristo Dass, 7 Beng. L.R. 446

[3] Mahendra Prasad vs. Emperor, 9 IC ( C) 698, Queen vs. Parmeshwar Dutt ILR 8 A201

[4] I.L.R. 28 Cal. 344

[5] C.F.55 & 56 Vict, C 61

[6] For details see Page   . P.V.Ramakrishna 1995

[7] Empress vs. Parmeshwar Dutt ILR 8 A 201 ( vide expl.2 to this section ) see also Habilas vs. Crown, AIR 1950 EP 167 ( For details regarding scope of Public duty see (1) G.A.Monterio vs. State of Ajmer AIR 1957 SC 13(2) State of Gujarat vs. M.P.Dwivedi AIR 1973 SC 330 (3) M.Karunanidhi vs. UOI AIR 1976 SC 598.

[8] Ramakrishna Das, ( 1871 ) 7 Bang L R 446.

[9] R.B.Sethi & R.L.Anand’s, “ The Prevention of Corruption Act and Accomplice”, The Law Book Company Private Ltd.All., 8th Edition pp.57-58.

[10] Explanation 1 of Sec.2 ( c )

[11] C.M.Chatterjee ( Dr. ) vs. State of West Bengal, ( 1995 ) 2 Cal H.N.518 ( 521).

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