JUDGMENT 1. This Rule is directed against Order No.6 dated 21st of April, 1978 passed by Sri J. Sarma Sarkar, a member of a Commission of Inquiry constituted under S.3 of the Commissions of Inquiry Act, 1952. 2. The petitioner Nos.1 and 2 are Director and Deputy Director of Cholera Research Centre which is one of the centres under the Indian Council of Medical Research, New Delhi. The third petitioner is the Director General of the said Council and the fourth petitioner is the Health Secretary to the Government of India. Ministry of Health and ex officio Vice-President of the Council. The Government of West Bengal issued a notification dated 12th of August, 1977 appointing a Commission of Inquiry, consisting of Sri J. Sarma Sarkar, a retired Judge of the Calcutta High Court file relevant provisions of the said notification are set out hereinbelow ; "Whereas there is a widespread demand from different sections of public for an inquiry into allegations of persistent 'misuse of authority of power during the period from the 20th March, 1970 to the 31st May, 1975 whereby the citizens in this State were deprived of their democratic rights; And whereas the Governor is of opinion that it is necessary to appoint a Commission of inquiry for the purpose of making inquiry into definite matters of public importance, that is matters relating to such persistent misuse of authority of power during the period from the 20th March 1970 to the 31st May, 1975 as hereinafter specified; And whereas no Commission of Inquiry has been appointed by the Central Government to inquire into the said matters; Now, therefore, in exercise of the power conferred by S.3 of the Commissions of Inquiry Act, 1952 (60 of 1952) the Governor is pleased hereby to appoint a Commission of Inquiry consisting of Shri J. Sarma Sarkar, retired Judge of Calcutta High Court. 2. 2. The terms of reference of the Commission of Inquiry shall be as follows : a) to inquire and to find out i) what, if any misuse of power by public servants took place during the aforesaid period whereby the democratic rights of the citizens including liberty of person, freedom of speech and expression, the right to assemble peacefully, to form associations or Unions were curbed or nullified; ii) to what, if any such curb of democratic rights of citizens took place with the encouragement of or was aided or abetted by any person or persons having official authority or by any other institution or organizations, iii) for what purposes and in whose interest and under whose directions of any such curb of democratic right of citizens took place; b) to consider such other matters which in the opinion of the Commission of Inquiry have relevance to the aforesaid allegations, and c) to suggest steps and measures so that violation of such democratic rights cannot recur in future. 3. On 8.12.77, the respondent No.2, the officers association, Cholera Research Centre through its president Dr. A.K. Ghosh filed a petition of complaint before the said Commission. In the complaint it is stated that deliberately, ignoring the dangers and risks involved in administering Fanasil to human population and knowing that the knowledge gained by the experimentation would benefit our population, as they are continuously exposed to infection and reinfection by germs causing cholera, which would necessitate intake of medicine all the year round, the said Dr. S.C. Pal and Dr. B.C. Deb used the Calcutta population as human guineapigs. They acted in the rash, negligent and irresponsible way akin to criminal offence and thereby violated the biomedical ethics and also the democratic rights of the population to get safe and ethical medication and protection against unnecessary administration of drugs of known toxic (i.e. dangerous) effects. This is a matter of public importance The Government of West Bengal, collaborated in this experimentation will be evident from the Annual Report of the Cholera Research Centre, for the year 1974. Thus it appears that this authority was also responsible in the aforesaid experimentation. Dr. C. Gopalan, Director-General, Indian Council and Secretary, Union Ministry of Health and the Secretary of Health, Government of West Bengal. Writers Buildings supported the said Dr. S.C. Pal and Dr. Thus it appears that this authority was also responsible in the aforesaid experimentation. Dr. C. Gopalan, Director-General, Indian Council and Secretary, Union Ministry of Health and the Secretary of Health, Government of West Bengal. Writers Buildings supported the said Dr. S.C. Pal and Dr. B C. Deb in their misuse of power and abuse of authority in administering the said toxic drug "Fanasil" on unsuspecting human population belonging to low socioeconomic. condition in Calcutta and thereby are responsible in this mailer of public importance. Dr. C. Gopalan and the Secretary, Union Ministry of Health, Government of West Bengal through negligent and/or irresponsible action and/or inaction helped the said Dr. S.C. Pal and Dr. B.C. Deb in their misuse of power and/or responsibility and/or abuse of authority in administering the untested and unstandardised vaccine. 4. There is another allegation about curbing and nullifying the democratic rights of. Scientific Officers to form an association. It is stated that Dr. C. Gopalan the Director General, Indian Council of Medical Research did not recognise the officers association which was registered with the Registrar of Firms, Societies and non trading Corporation, West Bengal on March 24, 1975 and obtained the certificate of Registration No. S/l5902 of 1974-75. It is further stated in the complaint that Dr. C. Gopalan. Director General, Indian Council of Medical Research while curbing and nullifying the rights to form the said association did not consult the Governing Body of the Indian Council of Medical Research and acted unilaterally and whimsically by misuse of power and abuse of authority. 5. As a consequence of the said complaint, the respondent No. 1 the Commission issued summons to the petitioners and respondent No.3 under S.8B of the Commission of Inquiry Act. The said parties were directed to appear in person or by a. lawyer on 3rd of April, 1978, before the Commission and to state their cases supported by affidavits if they controvert the facts and submit a list of names arid addresses of witnesses and produce the documents in support failing which the Commission may proceed ex parte or may take steps for ensuring their attendance, if necessary. The petitioner filed an affidavit affirming therein that the officers of the Cholera Research Centre are not "public servants" as described under S.21 of the Indian Penal Code. The Council is not a creation of any statute. The petitioner filed an affidavit affirming therein that the officers of the Cholera Research Centre are not "public servants" as described under S.21 of the Indian Penal Code. The Council is not a creation of any statute. It is an independent and autonomous body unconnected with the Government authority. It is contended in the said affidavit that the Commission has got no jurisdiction to enquire into, the complaint filed by the officers association in asmuch as the terms of the reference did not confer such jurisdiction upon the Commission. By an order dated 21st of April, 1978 the Commission rejected the preliminary objections raised by the petitioners and decided to proceed with the enquiry in respect to the said complaint. The petitioners being aggrieved by the said order of the Commission, moved this Court under Art.226 of the Constitution and obtained the present Rule on 8th May, 1978. 6. Mr. Deb, appearing on behalf of the petitioners contended that the respondent No.1 has assumed jurisdiction not vested in him by the terms of reference. It is argued that the term "Public Servant" is well known to law. The Council being not constituted either under any Act nor it being a department of the Central Government, the Officers of the said Council cannot be said to be public servants. Reliance was placed upon a Bench Decision of this Court in the case of D.G. of Health Services & ors. Vs. Bikash Chatterjee & ors. ( AIR 1969 Cal. 525 ) and a decision of the Supreme Court in Sabhajit Tewari v. Union of India & Ors. ( AIR 1975 SC 1329 ). 7. Mr. Gooptu, appearing on behalf of the respondent No.2 contends that the activities of the Indian Council of Medical Research are in fact activities of the Government of India and the funds required for its activities are made available by the Government of India, which will appear from the report in 1976-77 of the Ministry of Health. It is further contended that accounts of the Indian Council of Medical Research are audited only by the Comptroller and Auditor General, who is responsible for the receipts and expenditure of the Government. It is submitted that officers of the Council come within 9th Clause read with Explanation 2 of S.21 of the Indian Penal Code. 8. Mr. It is further contended that accounts of the Indian Council of Medical Research are audited only by the Comptroller and Auditor General, who is responsible for the receipts and expenditure of the Government. It is submitted that officers of the Council come within 9th Clause read with Explanation 2 of S.21 of the Indian Penal Code. 8. Mr. Chatterji, appearing on behalf of the State Government the respondent No.4, contends that the definition of "Public Servant" under S.21 of the Indian Penal Code is neither conclusive nor exhaustive. Certain description of officers have been given in S.21 and those persons falling under any of those descriptions are regarded as "Public Servant" for the purpose of the offences committed by them. According to Mr. Chatterji any person who does service to the people and community should be regarded as public servant. 9. Mr. Basu, appearing on behalf on Union of India, supports the petitioners and adopts the arguments of Mr. Deb. 10. A distinction has been made between the common people and certain classes of persons in the service and pay of government, or exercising various public functions, and those persons are included in the words "Public Servants" There are several offences which can only be committed by public servants. Section 21 of the Indian Penal Code does not define what a public servant' means but enumerates the various functionaries who will 'be designated as public servants.' A public servant is one, who has to discharge some public duty. Clause 9 read with Explanation 2 to S.21 are not attracted to the present case. According to Explanation 2 the person who in fact discharges the duties of the office which brings him under some of the descriptions of public servant, is for all the purposes of the Code is a public servant whatever legal defect there may be in his right to hold the office. The absence of a formal appointment is immaterial where a person is in actual possession of a situation as a public servant. Clause 9 begins with "every officer", the word "officer" means a holder of some officium or office to whom certain functions of the government are delegated. 11. In D.G. of Health Service Vs. The absence of a formal appointment is immaterial where a person is in actual possession of a situation as a public servant. Clause 9 begins with "every officer", the word "officer" means a holder of some officium or office to whom certain functions of the government are delegated. 11. In D.G. of Health Service Vs. Bikash Chatterjee & Ors., (supra) a question arose whether the provisions of Art. 311 of the Constitution would apply to the Council of Scientific and Industrial Research which is a society registered under the Societies Registration Act. It has been held by a Division Bench of this Court that the Council being independent and autonomous body nor under any direct control of the Government is neither a public body nor a part of the Government ; neither grants in aid of the activities of the Council nor the touch with the Government makes the Council a public body or a part of the Government. Mr. Chatterji drew my attention to paragraph 39 of the decision of the Supreme Court in Sukhdev Singh Vs. Bhagat Ram reported in ( AIR 1975 SC 1331 ), wherein it is stated that a public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. 12. A question arose whether the Council of the Scientific and Industrial Research was really an agency of the Government. The Supreme Court in Sabhajit Tewari's case (supra) negatived the contention and observed that the Council of Scientific and Industrial Research does not have a statutory character like the Oil & Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a Society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the Prime Minister is the President or that the Government appoints nominees to the governing body or the Government may terminate the membership will not establish any thing more than the fact that the Government takes special care in promotion, guidance and co-operation of Scientific & Industrial research and other activities of the Council towards the development of industries in the country in a responsible manner. 13. The Indian Council of Medical Research hereinafter referred to as the Council is a Society registered under the Societies Registration Act. 13. The Indian Council of Medical Research hereinafter referred to as the Council is a Society registered under the Societies Registration Act. The Council, undoubtedly, as an apex organisation for the medical research in the country. The funds required for its activities are made available by the Central Government and its accounts are audited by the Comptroller and Auditor General of India. But even then, it cannot be regarded as department of the Central Government and as such the officers of the Council cannot be regarded as public servants. The word "public servant" has a particular meaning. It is true that the word has not been defined in S. 21 of Indian Penal Code. But unless a person comes within the description as enumerated in various clauses of S.21 of the Indian Penal Code, that person cannot be said to be a public servant. The dictionary meaning of the public servant is "government servant". But all Government servants are not public servants. The Court cannot extend the definition of public servant and hold that any person who serves the community and the people and carries out transactions for the benefit of the public and not for private profit comes within the description of a public servant. In Sukhdev Singh's case the Supreme Court observed that the public authority is a body which has public or statutory duties to perform. In the instant case the Indian Council of Medical Research is neither a public authority nor it has a public or statutory duties to perform.. So, the officers of the Cholera Research Centers which is one, of the Centres, under the Indian Council of Medical Research are not public servants. The purpose of constituting the Commission is to inquire and find out the misuse of powers by a public servant by which the democratic rights of the citizen were curbed and nullified. It was required for the purposes of maintaining the probity and purity of public life in the country, as observed by Supreme Court in Dalmia's case, 1959 SCR 279 . The Commission of Inquiry is a creature of statute. Under S.5(2) of Act the Commission has got the power to require any person to furnish information on such points or matters as, in the opinion of the Commission; may be useful for, or relevant to the subject matter of the enquiry. The Commission of Inquiry is a creature of statute. Under S.5(2) of Act the Commission has got the power to require any person to furnish information on such points or matters as, in the opinion of the Commission; may be useful for, or relevant to the subject matter of the enquiry. But at the same time, the Commission cannot travel beyond the terms of its reference. Now looking to the terms of reference it appears that clause 2(a)(i) of the Notification refers to misuse of power by public servant. In my opinion, the petitioners except petitioner No.4 who are the officers of the Council are not public servants and clause 2(a)(i) of the Notification is not attracted and accordingly, the Commission has got no jurisdiction to inquire into the complaint filed-by the officers', association, Cholera Research Centre against the petitioners 1 to 3. 14. It is not disputed that the respondent No.4 the Secretary, Ministry of Health. Government of India is an officer of the Government and he is a public servant. In the complaint it is stated that Dr. C. Gopalan, the Secretary, Union Ministry of Health, Government or India and the Secretary. Ministry of Health Government of West Bengal through negligent and/or irresponsible action and/or inaction helped the said Dr. S.C. Pal and Dr. B.C. Deb in their misuse of power and/or responsibility and/or abuse of authority in administering untested and unstandardised vaccine. 15. Clause (ii) deals with, "to what, if any such curb or democratic rights of citizen took place with the encouragement of or was aided or abetted by any person or persons having official authority or by any other institution or organisation". 16. According to Mr. Deb any such curb of "democratic rights" in clause (ii) refers to curb of democratic rights by misuse 'of power by public servants as referred to clause (i). 17. In my opinion. clause (ii) is independent and is not dependent upon clause (i). Clause (i) deals with misuse of power by public servants themselves and clause (ii) deals with aiding or abetting by any person or persons having official authority or curbing such democratic rights of citizen. 17. In my opinion. clause (ii) is independent and is not dependent upon clause (i). Clause (i) deals with misuse of power by public servants themselves and clause (ii) deals with aiding or abetting by any person or persons having official authority or curbing such democratic rights of citizen. In view of the allegations referred to in the complaint, in my opinion, the Commission has got jurisdiction to inquire into only that part of the allegations with respect to which the petitioner No.4 and the Secretary, Department of Health, Government of West Bengal have aided and abetted the other petitioners in administering Fanasil to human population. 18. It is contended by Mr. Chatterji that under sub-clause (b) the Commission has got jurisdiction to consider such other matters which in the opinion of the Commission of Inquiry have any relevance to the aforesaid allegations. 19. Mr. Deb, pointed out that the allegations referred to in sub-clause (b) deals with the allegations either in sub-clauses (i) or (ii) 20. According to Mr. Chatterji the allegations related and referred to such persistent misuse of "authority of power" in the Preamble of the Notification. It is argued that the word "authority of power" includes the powers which the petitioners exercise in their official capacity as officers of the Council. 21. In Rajasthan State Electricity Board Vs. Mohanlal ( AIR 1967 SC 1857 ), the Supreme Court said that an "authority" is a public administrative agency or corporation having quasi governmental powers and authorised, to administer a revenue producing public enterprise. The petitioners 1-3 undoubtedly have no such authority. Clause 2(b) deals with the Commission's power to inquire into any other matters which have not been' specifically referred to in the Notification, but at the same time, those matters are relevant to the allegations of misuse of power by any authority. So, in my opinion, sub-clause (b) is not attracted to the facts and circumstances of the present case. 22. There is another allegation in the complaint by which Dr. C. Gopalan did not allow the Officers Association to form an association. That allegation in the complaint does not come within the purview of clause (ii) inasmuch as Dr. C. Gopalan is not a public servant and no allegations of abatement by any public servant were made in the complaint. There is another allegation in the complaint by which Dr. C. Gopalan did not allow the Officers Association to form an association. That allegation in the complaint does not come within the purview of clause (ii) inasmuch as Dr. C. Gopalan is not a public servant and no allegations of abatement by any public servant were made in the complaint. Neither the Notification nor the power of the Governor constituting the Commission under S. 3 of the Act has been challenged before me. 23. In the result, the petitioners' preliminary objections before the Commission succeed in part. 24. This Rule is made absolute in part. Part of the impugned order is quashed by a Writ of Certiorari as indicated hereafter. 25. Let a Writ of Mandamus be issued commanding the Respondent No. 1 not to inquire into other allegations in the complaint filed by, the Officers' Association except those allegations in the complaint by which the aiding or abetting by the respondent No.4 and the Secretary to the Government of West Bengal, Department of Health have been alleged. There will be no order for costs. Prayer for stay of operation of the order is refused. Rule made absolute in part.