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November 13, 2017 at 8:07 pm #3383
I am a Lecturer in a Private,un-aided, self-financed diploma engg. college run by a Trust,in Maharashtra. In 2015 a group of students filed a false complaint against me that I asked them for a bribe to sign their final year Project report.However the fact remains that they submitted their draft copy of project report 5 days after the last date of term end. Students alleged that I asked for money to sign the project report but after my signature ,My HOD & Principal also signed the report on the day of final oral examination.
ACB laid a trap against me and arrested me and regd. a FIR against me. They alleged in their FIR and application submitted with SPl.Court that I am a public servant and I was doing the work of examination under State board and hence under section 2(c) viii & xi, I fall under the category of Public servant and hence I shall be punished for the same. I approached HC for quashing of FIR but application was rejected and justice told me that whether college received any grant or not is a part of evidence Hence it shall be decided at trial court.The PP in HC alleged that I fall in the category of Public servant under section xi & xii. These two clauses in no way apply to me.
ACB tried to get sanction from state board for filing charge sheet against me but
Board said that they did not appoint me hence they can not give sanction.Same way Director of Technical Education also denied to give sanction saying that I am an employee of a private college. They have now approached Education Department for sanction.
In my reply to RTI I came to know all this and in the letter from IO to ACB head they have accepted that I am an employee of private institute and in the given situation if a charge sheet is filed against me without sanction the court will reject the matter hence the IO suggested to ACB head to file a case against me under IPC 384 (extortion) which will not require any sanction.
ACB has not yet filed charge sheet against me.
You are requested to advice me what remedial steps are available with me. I was unfortunate that the HC did not quash the FIR depsite I being an employee from PVT.College.I am suffering a lot alongwith my family and I am on the berge of coming to footpath alongwith my wife and kids.Please help.
November 14, 2017 at 11:39 am #3390
Dr. Ashok DhamijaAdvocate
I am going by your statement, as per which, you have confirmed that the private college in which you were employed, was NOT aided by Government, etc.
In such situation, you can be covered within the definition of “public servant” under Section 2(c) of the Prevention of Corruption Act, 1988, only under clauses (viii) or (xi) thereof, which are reproduced below for your information:
“(c) “public servant” means,-
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;”
Please also note the Explanation 1 to this definition, which is reproduced below:
“Explanation 1.- Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.”
This implies that if a person is covered within the definition of “public servant”, he would be a public servant, even if he was not appointed by the Government.
For the purposes of clause (viii) of Section 2(c), the expression “public duty” is defined in Section 2(b) of the PC Act as under:
“(b) “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest;
Explanation.- In this clause “State” includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);”
It is in the light of these legal provisions that your status as a public servant is to be determined. Please keep in mind that for these provisions (as quoted above), it is not necessary that any Government aid had been received.
Please consult some local lawyer by showing all your relevant documents who can perhaps guide you on the detailed facts of your case, in the light of relevant legal provisions quoted above by me. It is not possible for us, on this forum, to go into detailed facts of an individual case. We can basically help on the relevant legal points.
Secondly, if you are aggrieved by the high court order, you could perhaps have exercised the option of approaching the Supreme Court, at that time. Another option for you may be to wait for the filing of charge sheet (if any) or for conclusion of the ACB investigation, and then decide the future course of action, including filing of a discharge application in the trial court, if needed. It is noteworthy that the high court has itself mentioned that you should wait for the investigation to be over, since as per the high court, whether or not any aid was received by the college would be known only after collection of evidence (though I think receiving any aid itself may be irrelevant).
[Note: Some contents for this reply have been taken (in modified form) from my book: Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-592-6).]
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles.
November 14, 2017 at 3:19 pm #3392
Thanks a lot sir.
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