Jurisdiction or maintenability issue of a civil suit
amol
(Querist) 16 January 2014
This query is : Resolved
Sirs,
May I know as to whether a Civil Suit for seeking damages and injunction from restraining to share confidential data is maintainable against a employee of the comapny which is a finance company on the ground that the code of conduct , ethics and discipline of the company has been breached by him by parting with the confidential data of the company to others third persons. following are the circumstances under which we have to examine as to suit is maintainable or not
1) the IT act, 2000 provide a special statutory remedy as criminal offense FIR can be lodged the same has not been lodged
2) the suit was filed after terminating the employee without inquiry conducted against him
3) the code and conduct if any breached that provide departmental remedy of inquiry which was not conducted by company against him
4)suit is on the ground that this empolyee by sharing financial information to outside persons could have earned 25 lakhs as a commission so that far are the damages caused to comapny
So now without lodging FIR , investigation allegations that employee is still having some information and he had parted the same erlier can be tenable in the suit as a ground to recover the amount and seek injunction against the employee
Please guide sir as to whether suit is maintainable ? I am for the employee defendant in the above Suit
thanks
Dr J C Vashista
(Expert) 16 January 2014
1. In the given circumstances the suit is not maintainable.
2. How the company can terminate services of an employee without conducting departmental inquiry, it is illegal.
3. The company has to initiate proceeding under the provisions of Official Secret Act, if such offence has been committed by an employee.
4. Engage a local lawyer for proceeding n a professional manner.
Devajyoti Barman
(Expert) 16 January 2014
Only because there is remedy in criminal jurisprudence, there is no bar for civil remedy.
So suit for damages is very much maintainable.
The merit of dismissal from service is separate issue but suit for damages out of breach of confidentiality clause of jpb contract is another aspect for which the suit can lie.
amol
(Querist) 16 January 2014
But Mr Barman whether damages are caused or not is a subject matter of evidence
which needs to be proved and prima facie the information is provided to outsiders by the empolyee is a subject matter of criminal investigations
for that lodgin of FIR is must
but this company never lodge any criminal complaint against him
whether the allegations made in the air can entitle the company to sue for damages without disclosing the evidence of how losses caused to them on the basis of presumption.
Please answer
and Dr Vashishta can official secret act applicable in this case when the employer is public ltd company and the defendant is a employee
please guide
thanks
Advocate. Arunagiri
(Expert) 16 January 2014
The civil suit is very much maintainable. At the same time you have every right to file a cross suit, for compensation for illegal termination.
amol
(Querist) 16 January 2014
i can make the counter claim know against the suit for Compensation for illegal termination ?
the employee ws a manager of company and he was not a labour to go to labour court for reinstatement and damages
so what is the statutory remedy for manager of public Company against illegal termination ? and which is the court / forum he can invoke
please guide
thanks
Advocate. Arunagiri
(Expert) 16 January 2014
1. what is your exact role in the company.
Because as per the labour act, the Designation "manager" is not important, the role as "supervisory capacity" is important.
2. If you are not eligible to file a complaint as per the labour law, You can file a separate suit challenging illegal termination.
Devajyoti Barman
(Expert) 16 January 2014
I am not sure on what basis you are saying that lodging FIR is sina qua non for suit for damages which is quite alien to me.
You should know that in civil suit no prima facie evidence is needed. The plaintiff will have to prove his own case and before the conclusion of trial nobody can question him regarding the merit of the case, prima facie or final.
amol
(Querist) 16 January 2014
yes i thought so i.e. about a separate suit thanks
but Mr Arunagiri can you please read what i have stated in the para above of your first answer about lodging an FIR
and further tell me still suit is maintainable or not ?
thanks
amol
(Querist) 16 January 2014
whether damages are caused or not is a subject matter of evidence
which needs to be proved and prima facie the information is provided to outsiders by the empolyee is a subject matter of criminal investigations
for that lodgin of FIR is must
but this company never lodge any criminal complaint against him
whether the allegations made in the air can entitle the company to sue for damages without disclosing the evidence of how losses caused to them on the basis of presumption.
Please answer
amol
(Querist) 16 January 2014
Please answer Mr Arunagiri that
whether on the basis of submissions of the above para Civil Suit is maintenable
what allegedly shared or parted by the Manager /Employee of the company was the Data related with the mails received from NSDL lines about the dealings and trading by thrid parties which is reflecting the value of shares of a particular company
please guide as to without lodging criminal offence or when the Information technology act bars any other court for haing jurisdiction Civil Suit maintenable or not
thanks
amol
(Querist) 16 January 2014
Please answer Mr Arunagiri that
whether on the basis of submissions of the above para Civil Suit is maintenable
what allegedly shared or parted by the Manager /Employee of the company was the Data related with the mails received from NSDL lines about the dealings and trading by thrid parties which is reflecting the value of shares of a particular company
please guide as to without lodging criminal offence or when the Information technology act bars any other court for haing jurisdiction Civil Suit maintenable or not
thanks
Advocate. Arunagiri
(Expert) 16 January 2014
I am just reproducing the S.61 of the IT act, as amended in 2006.
This clarifies your doubt.
THE INFORMATION TECHNOLOGY ACT, 2000
[Section 61]
Civil court not to have jurisdiction (Amended vide ITAA 2008):
No court shall have jurisdiction to entertain any suit or proceeding in respect of any matter
which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal
constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Provided that the court may exercise jurisdiction in cases where the claim for injury or damage suffered by any person exceeds the maximum amount which can be awarded under this Chapter. (Inserted vide ITAA 2006).
amol
(Querist) 16 January 2014
I think the Court mentioned in the proviso
talks about the Sec (2) definition sub clause
(m) "Controller" means the Controller of Certifying Authorities appointed under sub-section(l) of section 17;
AND
(n) "Cyber Appellate Tribunal" means the Cyber Regulations Appellate Tribunal established under sub-section (1) of section 48;
that means these above authorities who can entertain the dispute of damages suffered and filed by the person but not by the regular Civil Court like City Civil Court Bombay
Am i correct or wrong please explain or guide
thanks
Advocate. Arunagiri
(Expert) 16 January 2014
Adjudiction officer - cyber appellate tribunal also having jurisdiction.
I have produced the S.61 of the Act.
This clearly shows that the civil court is having the jurisdiction.
When the law itself is very clear, it is upto you to take it or not.
As for as I am concerned the query is resolved.
amol
(Querist) 16 January 2014
Thanks Mr Arunagiri and other experts
If any other expert has different opinion with regards to the quarry with I equest him to please add further for better clarification
thanks
amol
(Querist) 16 January 2014
Thanks Mr Arunagiri and other experts
If any other expert has different opinion with regards to the quarry with I equest him to please add further for better clarification
thanks
T. Kalaiselvan, Advocate
(Expert) 16 January 2014
A visit to Section 46 of IT Act 2000 will clarify the author's query on the subject, the same is reproduced below:
46. Power to adjudicate. -
(1) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made thereunder the Central
Government shall, subject to the provisions of sub section (3), appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government .
(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section.
(3) No person shall be appointed as an adjudicating officer unless he possesses such experience in the filed of Information Technology and legal or judicial experience as may be prescribed by the Central Government.
(4) Where more than one adjudicating officers are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction.
(5) Every adjudicating officer shall have the powers of a civil court which are conferred on the Cyber Appellate Tribunal under sub-section (2) of section (2) of section 58, and-
(a) all proceedings before it shall be deemed to be judicial proceedings within the meaning of section 193 and 228 of the Indian Penal Code (45 of 1860);
(b) shall be deemed to be a civil court for the purpose of section 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).
Hope the civil court matter is clearly understood now?
