Can criminal sue can be done against director ?
JAYANTA KUMAR DAS
(Querist) 29 December 2012
This query is : Resolved
One of my friend is a Sr. Lecturer in a State Govt. Diploma Engineering College. He denied to accept the inferior quality electronics materials of huge amount supplied for electronics laboratory. Possibly there was some kickback affair which includes also the upper layer of the department. For this he was forcefully transferred to a distant college from September, 2007.
Though he appealed against this transfer order at State Administrative Tribunal, actually yielded no result after a reconsidering the transfer directive from the Hon'ble SAT. When he appealed at SAT, he did not join to the new college and was absent for 05 months. At this time, the Director issued a show cause letter against him aledging that he had harassed a co-passenger lady who had lodged a written complaint against him to the Principal of the college and Director of the Dept. He joined to the new college on 02.02.2008. After joining he did not get salary for 08 months. After that he received salary from a directive of Hon'ble State Administrative Tribunal. As he was not served a copy of written complaint from lady along with the show cause letter, he repeatedly sought for that in written. The Director kept mum. So he sought the complain letter according to the RTI Act, 2005. Now also he was not given that complaint letter. He has already
complained to the Hon'ble State CIC. The Director also formed an enquiry committee to investigate the absence of 05 months duration vide a "charge sheet". He was given an "extraordinary leave" for 05 months without salary. The Director ordered to record "punishment" word on his "Service Book". He again sought the help of SAT. The Hon'ble SAT cancelled this word. Now my friend has moved to the Hon'ble High Court of Calcutta against the charge sheet. Probably the charge-sheet will be cancelled by High Court. Then his service records will be clear. Now can he initiate legal criminal proceedings against the Director for long harassments ?
My friend is now 56+ and Ph.D. in qualification and Sr. Lecturer in Electrical Engineering and very much honest.
Can any Lawyer from Calcutta help ?
Guest
(Expert) 30 December 2012
Probably, your friend had been knocking the wrong door by taking hasty steps, at first the SAT against his transfer and now the HC for cancellation of the Charge Sheet. I don't think he can expect the positive results even in his case with the HC. Now if he files a criminal case against the director, with what grounds he can sue him when he had not been able to prove any wrong in the SAT and his petition against his charge sheet is still pending in the HC?
Transfer is never considered as a punishment, as the transfer is a condition of service. An employee cannot always work at his own choice place. Had he any grievance, he was required to make representation to the concerned superior authority against the orders of the director. SAT or courts never entertain cases against transfer, unless sufficient proof is given about transfer as a matter of revenge or personal bias of the controlling authority.
Similarly, in charge sheet cases also, normally, the SAT or HC don't entertain the cases until departmental channels are exhausted. So, your friend, at first was required to defend himself departmentally in the charge sheet case and then appealed to the appellate authority against injustice meted out to him. Had he still found justice not to have been done, only then he should have moved the HC in his charge sheet case for justice.
Sudhir Kumar, Advocate
(Expert) 30 December 2012
The following facts could be gathered:-
Your friend has two chargesheet. He was given one chargesheet in which the allegations were vague and instead of challenging the same on the ground of vagueness he went ahead to attempt to make the charges specific by requesting for copy of the complaint by the lady and then even going to the extent of RTI.
I would agree with Mr Dhingra and would ad as under:-
One day the complaint may be on the record, if existing (or obtained/manufactured ante-dated) and the charge will be specific which is sufficient enough for throwing him out.
Well your friend did not exercise RTI for which it is meant that is to expose the corruption. RTI is not designed for accused officers to help administration to strengthen charges against them.
The director was stupid did not know how to deal with him. Your friend gave him tool for giving chargesheet of unauthorised absence. However The Director would have been forced to seek advise on seeing the RTI misadventure so issued chargesheet for unauthroised absence. Again Director acted foolishly. When charges were proved he regularized the absence by grant o EOL (most lenient and favorable step) and considered it to be a penalty and recording of such leave as a penalty was quashed by SAT. The Director if wise would have imposed actual penalty like stoppage of increment/ reduction in pay/rank etc. In that case still not pay pension would have been admissible for the 5 month period if treated as dies-non. It could have even been treated as break in service.
The Director would have committed legal errors during enquiry which your friend did not encash. Most probably he is acting as novice and experimenting with his own career.
It is not understood which criminal proceedings your friend want to initiate. The unauthroised absence is proved. You have not specified which chargesheet has been challenged.
It is better to read S/197 Cr PC before planning further.
Raj Kumar Makkad
(Expert) 31 December 2012
I do endorse the views of both experts.
