High Court Patna High Court - Orders

Faiyaz Ahmad vs State Of Bihar &Amp; Ors on 13 April, 2011

Patna High Court – Orders
Faiyaz Ahmad vs State Of Bihar &Amp; Ors on 13 April, 2011
                  IN THE HIGH COURT OF JUDICATURE AT PATNA
                             CR. WJC No.636 of 2009

                  Faiyaz Ahmad, s/o Kamruzama, Secretary, Millat
                  Teachers Training College, Madhubani
                                                     ..... PETITIONER
                                          VERSUS
                  1. The State of Bihar through the Additional Director
                  General of Police, Vigilance Investigation Bureau, 6,
                  Circular Road, Patna- 800001
                  2. The Principal Secretary, Human Resources
                  Development Department, Government of Bihar, Patna
                  3. Sri Mritunjay Kumar Choudhary, Sr. Deputy
                  Superintendent of Police- cum- Inquiry Officer,
                  Vigilance Investigation Bureau, 6, Circular Road, Patna-
                  800001
                                                  ....    RESPONDENTS
                                           ---------

For the Petitioner : M/s B. P. Pandey, Sr. Advocate &
Jagannath Singh, Advocate
For the State : M/s Lalit Kishore, Sr Advocate &
Rabindra Kr. Priyadarshi,
AC to AAG I
For Vigilance : Arvind Kumar, Spl. PP (Vigilance)

———

19 13 .4.2011 Heard learned counsel for the petitioner,

learned counsel for the State and learned counsel for the

Vigilance Investigation Bureau.

2. Petitioner is Secretary of Millat Teachers

Training College, Madhubani which is claimed to be a

minority unaided institution established in the year 1990.

It claims to have recognition of the State Government
-2-

since the academic session 1990-92. It is understood that

the petitioner claims to have affiliation of its institution

with Lalit Narayan Mithila University (hereinafter

referred to as „the University‟) till 1995-96 and thereafter

it got recognition of the National Council for Teacher

Education, Eastern Regional Committee since the

session 1996-97 in the light of provisions of NCTE Act,

1993 which came into force from 1.7.1995.

3. Petitioner claims that since it is unaided

minority institution imparting training to teachers to

enable them to appear in the examination for B. Ed.

degree, it does not perform any “public duty” and does

not come within the definition of “public servant” as

defined under Section 2 of the Prevention of Corruption

Act, 1988 (hereinafter referred to as „the PC Act‟). This

is the basis for challenging a letter bearing no.7096 dated

6.7.2009 contained in Annexure- 4 series whereby

respondent no.3, Sr. Deputy Superintendent of Police-

cum- Inquiry Officer, Vigilance Investigation Bureau has

requested the petitioner to make available information

and documents mentioned in letter no.6555 dated
-3-

3.6.2009 (Annexure-1) for holding inquiry pursuant to

letter no.866 dated 27.5.2006 whereby respondent no.2,

the Principal Secretary, Human Resources Development

Department, Government of Bihar notified the

Additional Director General of Police, Vigilance

Investigation Bureau, Bihar, Patna to hold inquiry in

respect of privately managed B. Ed. training colleges in

reply to and context of letter no.140 of respondent no.2

dated 20.3.2006 (Annexure- A).

4. Earlier this writ petition was considered by a

learned single Judge on 6.10.2010. In the order passed

on that date the learned single Judge noted all the

submissions advanced on behalf of the petitioner which

are to the effect that petitioner does not perform any

“public duty” as defined under Section 2 (b) of the PC

Act nor does it fall under the definition of “public

servant” defined under Section 2(c) of that Act and,

therefore, the Vigilance Investigation Bureau will have

no jurisdiction to take up inquiry or investigation

involving the petitioner‟s institution. The other

submission is that the letter or notice under challenge can
-4-

be issued only under Section 91 of the Code of Criminal

Procedure (hereinafter referred to as „CrPC‟) and such

power cannot be exercised till a regular case is instituted

by the police. The learned single Judge found the issues

raised to be of significance and hence, referred the matter

to Division Bench for consideration.

5. The same issues of law were raised before

us by learned senior counsel appearing for the petitioner.

He also raised a plea that now when the NCTE has found

the petitioner‟s institution to be proper and has granted

recognition, there can be no justification for subjecting it

to an inquiry by the Vigilance Investigation Bureau.

6. In the context of issues involved, it is

relevant to refer to the material facts constituting the

background for the inquiry in question as they appear in

the letter of the Additional Director General of Police,

Vigilance Investigation Bureau dated 24.3.2006

contained in Annexure- A to the counter affidavit of

respondent no.2. That letter is addressed to the Secretary

Higher Education Department, Government of Bihar

(subsequently redesignated as Department of Human
-5-

Resources Development Department). The subject is

inquiry in respect of colleges in the private sector

associated with B. Ed. / Dental and other vocational

courses. The letter discloses that a team of officials

constituted by the Chancellor detected irregularities in

respect of grant of affiliation and publication of results

for B. Ed. and other courses by the University. The

details of the irregularities and relevant papers were

enclosed with letter dated 12.4.1999 issued by the

Secretariat of Hon‟ble Chancellor with a direction to the

Vigilance Investigation Bureau to enquire into the

matter. Similar request for inquiry were received from

the Secretariat of Hon‟ble Chancellor with respect to

four Dental colleges under the same University and

Teachers training colleges under B. N. Mandal

University as well as Magadh University.

7. The said letter (Annexure- A) further

discloses that Vigilance Investigation Bureau constituted

a team of officers and selected some colleges for inquiry

as sample cases. The result of the inquiry revealed

cognizable offences leading to registration of regular
-6-

cases against seven Teachers training colleges and two

Dental colleges under LN Mithila University and one

Teachers training college under Magadh University. The

letter further discloses that modus operandi adopted by

all the institutions revealed almost same type of

irregularities and wrong methods. In respect of some of

the remaining institutions/ colleges, inquiry was initiated

but it could not reach any final conclusion because the

Vigilance Investigation Bureau got involved in other

very important cases relating to BPSC scam, Flood

Relief scam, IGIMS scam etc. The Vigilance

Investigation Bureau, vide Annexure- A requested the

Human Resources Development Department to

constitute team of its own officers for holding inquiry in

respect of other colleges mentioned in the reports

received from the Secretariat of the Hon‟ble Governor.

It was suggested that if in such inquiry cognizable

offences were detected then criminal cases may be

instituted either with the local police or with the

Vigilance Investigation Bureau.

8. In the context of aforesaid letter of the
-7-

Additional Director General of Police, Vigilance

Investigation Bureau, a reply was sent by the

Commissioner- cum- Secretary of the Human Resources

Development Department through letter no.866 dated

27.5.2006 with a direction that inquiry in respect of

remaining B. Ed. training colleges should also be

conducted by the Vigilance Investigation Bureau. As

mentioned in the counter affidavit of respondent no.2,

the Vigilance Investigation Bureau vide its letter no.365

dated 1.6.2006 accepted to complete the inquiry in

respect of rest 11 colleges and that has led to inquiry

against petitioner‟s institution and issuance of the

impugned letter/ notice.

9. On behalf of the respondents strong reliance

was placed upon the facts emerging from Annexures A

and B to the counter affidavit of respondent no.2 for

advancing the submission that the illegalities or

irregularities requiring inquiry relate to earlier period

when the concerned University had granted affiliations

and published results of examination of B. Ed. courses

and in relation to such acts, a team of high officials
-8-

constituted by the Chancellor of the Universities of Bihar

had found irregularities which led the Chancellor to issue

directions for inquiry by the Vigilance Investigation

Bureau. On behalf of the respondents reliance was

placed upon Section 9 (2) of the Bihar State Universities

Act, 1976 which reads as follows :

” 9.(2) The Chancellor shall have the powers to
inspect the university, its buildings, laboratories,
workshops and equipment, any College or
hostel, the teaching or examinations conducted,
or any act done by the university, and to get such
inspection done by such person or persons who
may be directed by him and to inquire or to
cause an inquiry made, in like manner, in respect
of any matter connected with the University and
it shall be the duty of the officers of the
concerned University and College to render
necessary assistance in such inspection :

Provided that the Chancellor shall, in
every case, inform the Vice Chancellor of his
intention to inspect or inquire or to get the
inspection or inquiry conducted and the
University shall be entitled to representation
therein.

10. In order to avoid the effect of aforesaid

statutory provision under which the Chancellor has

powers to get inquiry made in respect of any matter

connected with the University and corresponding duty of

the officers of the University and the College to render

necessary assistance, learned counsel for the petitioner
-9-

attempted to make a distinction between “affiliated

college” and “constituent college” which are separately

defined under Section 2(c) and 2 (i) of the Bihar State

Universities Act. That distinction is found to be of no

substance because Section 9 (2) mentions “any College”

without making any distinction between affiliated

college and constituent college. Hence, the inquiry in

the instant case by the Vigilance Investigation Bureau is

clearly permitted under the statutory provisions noticed

above. This view is supported by a Division Bench

judgment of this Court in the case of Md. Salahuddin

Sarwar v. State of Bihar, 2000 (1) PLJR 64. In that

case also the petitioner represented a private unaided

college and identical issues relating to authority of the

Chancellor to direct such inquiry and the power of the

Vigilance Department to hold the inquiry was under

challenge. The Division Bench upheld the authority of

the Chancellor as well as power of the Vigilance

Department and also the views of the learned single

Judge that genuineness and otherwise of the claims of

the petitioner college was not required to be gone into at

– 10 –

a stage where the Vigilance Department was only

conducting an inquiry and no case had been instituted.

The Division Bench also placed reliance upon judgment

of the Supreme Court in the case of R. P. Kapur and

others v. Sardar Pratap Singh Kairon and others, AIR

1961 SC 1117, to highlight that Section 154 of the CrPC

does not lay down that information of a cognizable

offence can only be given to officer incharge of the

police station. It is not in dispute that Vigilance

Investigation Bureau is a police station whose

jurisdiction extends over the whole State. The aforesaid

Division Bench judgment is a complete answer to the

contentions raised on behalf of the petitioner. The

Vigilance Department of the State Government cannot

be faulted for respecting the statutory powers of the

Chancellor and the inquiry being conducted by Vigilance

Investigation Bureau has the sanctity of law and as an

affiliated college or a college for which examination was

conducted by the University, the petitioner‟s institution

is required to render all assistance in such inquiry.

11. A similar view was taken by another

– 11 –

Division Bench of this Court in the case of Satish

Kumar v. V.C., Bhupendra Nr. Mandal University,

2007 (2) PLJR 682. In paragraph 11 of that judgment

reference was made to Section 9 (2) of the Bihar State

Universities Act and after quoting the same it was held

as follows :

” …… In view of the express provision in
the Act, it is futile to suggest that the
Chancellor had no power to ask the
Vigilance Department to enquire into the
matter of grant of affiliation/ recognition to
the College. ……..”

12. Learned counsel for the respondents

advanced a further submission that only because the

petitioner is an unaided educational institution it cannot

be said that it is not performing a public duty. In support

of this proposition reliance was placed upon a judgment

of the Supreme Court in the case of Unni Krishnan v.

State of A.P., (1993) 1 SCC 645. That case related also

to running of private unaided educational institutions and

conducting professional courses and in paragraph 79 it

was held that these educational institutions discharge

public duty irrespective of the fact whether they are

receiving aid or not.

– 12 –

13. In reply, learned counsel for the petitioner

placed reliance upon judgment of the Supreme Court in

the case of State of Maharashtra v. Sant Dnyaneshwar

Shikshan Shastra Mahavidyalaya, (2006) 9 SCC 1, for

supporting a submission that after coming into force of

the NCTE Act, 1993, the control over institutions

recognized by the NCTE vests only in the latter and the

State Government has no power to take any decision in

respect of an institution recognized by the NCTE. This

proposition has no relevance in the present case because

the inquiry ordered by the Chancellor and the State

Government relate to an earlier period when the

concerned University had allegedly committed

irregularities / illegalities in granting affiliation to and/or

conducting examination for the concerned institutions.

14. The issue relating to applicability of

provisions of the PC Act to the petitioner‟s institution is

found to be entirely misconceived. The inquiry is

primarily against the irregular or illegal acts of the

University. The colleges or the institutions that might

have or are suspected to have abetted omission of

– 13 –

offences by officials of the University will definitely be

covered by the provisions of the PC Act even if such

colleges are themselves not covered by the definition of

“public servant” under Section 2(c) of the PC Act.

15. As a result of aforesaid discussions, it is

found that the inquiry being conducted by the Vigilance

Investigation Bureau does not contravene any provision

of the PC Act or CrPC and is mandated by Section 9 (2)

of the Bihar State Universities Act. It is further found

that subsequent recognition by the NCTE is of no

consequence so far as the present inquiry is concerned

because the same relates to an earlier period. It is made

clear that we have not gone into the merits of petitioner‟s

claim of innocence because it is not an appropriate stage

for embarking upon such an inquiry by this Court. It

may be relevant to mention here that a similar objection

with regard to inquiry by the Vigilance Investigation

Bureau was raised in an earlier writ petition filed by

private Teachers training college association bearing

CWJC No.7159 of 2006 and the said writ petition was

dismissed by this Court on 21.9.2006 as per averment in

– 14 –

paragraph 7 of the counter affidavit filed by respondent

no.1 which has not been disputed.

16. In the final analysis, we find no merit in

this writ petition. It is accordingly dismissed.

(Shiva Kirti Singh, J.)

I agree
(Gopal Prasad, J.)

AFR

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