Indian Railway Codes and Manuals-Establishment code- Vol-I-Chapter-7 (VII)
Chapter 7
Law suits against
railway servants
701. (1) A railway servant may be
involved in legal proceedings in the following types of cases, viz., the
cases in which acts are done--
(i) in the execution or performance of the official duty,
(ii) not in the execution or the official duty, but by virtue of, or
having connection with the official
position, and
(iii) in neither of the above capacities.
(2) All claims for reimbursement of legal expenses falling under items
(i) and (ii) above shall invariably be referred to the Railway Board for
their consideration irrespective of whether or not in such cases the Railway
Administration finds any justification for reimbursement of legal expenses.
Cases falling under item(iii) may be those in which a person may be guilty of
bribery, illegal gratification, corruption, etc., accepted or committed not by
virtue of his official position but in his private dealings. No
reimbursement will be admissible in such cases.
(3) Normally, reimbursement of the fees of only one (or the senior)
counsel should be considered. The fees should comprise of professional
charges only and should ordinarily exclude other charges such as travelling
allowance, clerkage, etc.
(4) The Union Public Service Commission shall be consulted in
regard to cases of type (i) of rule (1) above under article 320 (3)(d) of
the Constitution on any claim for a cost incurred by a railway servant in
defending legal proceedings instituted against him in respect of acts done or
purporting to be done in the execution of his official duty. In other
cases of type (ii) above it is not obligatory to consult the Union Public
Service Commission, though the Government may do so if considered
necessary.
(5) The General Manager may frame subsidiary rules prescribing the
procedure to be followed by a railway servant in arranging for his
defence. Failures to observe this procedure may result in the
reimbursement of the legal expenses incurred by him being withheld.
702. (I) Suits arising out of circumstances
connected with the execution or performance of the Official duties or position
of the railway servant.—(1) Proceedings
initiated by Private parties.—When a suit arising out of
circumstances connected with the duty of a railway servant is brought against
him the following provisions shall apply—
(a)
(i) if the railway servant is sued by a party claiming from
him wages of money arising out of transactions in which he is concerned only in
his official capacity, and bonafide on behalf of Government, it will be
necessary for the railway servant to defend the suit by pleading that
Government should be made the defendant as the party really interested.
(ii) if however, the suit against the railway servant is for damages in
respect of an alleged act of the railway servant as an employee of government,
i.e. a suit for wrongs, the party aggrieved may, as a general rule, bring the
suit against such railway servant, and it would be no defence for the latter to
contend that he has a right to look to the party by whose act he has been
aggrieved, whether he could or could not have sued that party’s
principal.
(iii) whether the suit falls under sub-rule(i) or
sub-rule(ii) of this rule, the railway servant who fails to defend the suit or
to reply to the plaint in person or by counsel as the circumstances may
require, becomes personally responsible.
(b)
(i) If the government, on consideration of the facts and
circumstances of the case consider that it will be in the public interest that
government should themselves undertake the defence of the railway servant in
such proceedings and if the railway servant agrees to such a course, the
railway servant should be required to make a statement in writing as in
Annexure ‘A’ and thereafter government should make arrangements for the
conduct of the proceedings as if the proceedings had been instituted against
the government.
ANNEXURE ‘A’
(Here enter description of the proceedings)
The Government of India having been pleased to
undertake my defence in the above proceedings. I hereby agree to render
such assistance to Government as may be required for may defence and further
agree that I shall not hold Government in any way responsible if the
proceedings end in a decision adverse to me.
.......................................
Signature of the Government servant
Dated....................................
Where in a civil suit a
railway servant is sought to be made liable for damages for acts or negligence
in discharge of his official duties of civil nature and Government is impleaded
on the ground of vicarious liabilities , the Government should arrange for the
defence of the railway servant also, provided the defence of the Government and
the railway servant are substantially the same and there is no conflict
of interest. Each case should be examined in consultation with the Law
Officers before undertaking common defence. If it is decided to arrange
for the defence of the railway servant, the railway servant, should be required
to make a statement in writing as in Annexure B.
(ii) (a) If the
railway servant proposes to conduct his defence in such proceedings himself,
the question of re-imbursement of reasonable costs incurred by him for his
defence may be considered in case the proceedings conclude in his favour.
In determining the amount or costs to be so re-imbursed, the government will
consider how far the Court has vindicated the acts of the railway servant. The
conclusion of the proceedings in favour of the railway servant will not
by itself justify re-imbursement.
(b) To enable the
railway servant to meet the expenses of his defence, the Government may
sanction, at their discretion, an interest-free advance not exceeding Rs. 500/-
or the government servant’s substantive pay for three months, whichever is
greater, after obtaining from the railway servant a bond in the form reproduced
as Annexure ‘B’.
The recovery of the
advance may be made in not more than twenty four equal monthly
installments, the exact number being determined by the sanctioning authority
provided the advance is recovered before the date of retirement. The
recovery of the advance should commence on the first issue of pay/leave
salary/subsistence allowance following the month in which the advance is drawn
. The advance is recoverable from each issue of pay/leave salary /subsistence
allowance till it is repaid in full. At the time of reimbursement of
legal expenses, the entire balance of advance outstanding against the railway
servant should be recovered from the amount reimbursed to him. If the amount
reimbursed is less than that the outstanding balance of the advance, the
remaining amount will be recovered installments as already fixed. In the
case of grant of more than one advance, the recovery of such advances should
run concurrently.
(c ) No second advance
in respect of the same proceedings will be admissible. There will,
however, be no objection to the grant of more than one advance if they relate
to different proceedings against a railway servant.
(d) Where advance is
sanctioned to a temporary railway servant, he should be asked to furnish a
surety of a permanent railway servant of equivalent or higher status not
governed by the Payment of Wages Act, in the form at Annexure C.
(e) The amount of
advance is debited under the minor head “Other Advances” subordinate to Major Head
“Loans to railway servants” under Section “P-Loans and advances by the Central
Government.”
(2) Proceedings
initiated by Government.—Government will not give any assistance to a
railway servant for his defence in any proceedings, civil or criminal, instituted
against him by the State in respect of matters arising out of or connected with
his official duties or his official position. Should however, the proceedings
conclude in favour of the railway servant, the government will entertain his
claim for reimbursement of costs incurred by him for his defence and if
government are satisfied from the facts and circumstances of the case that the
Railway servant was subjected to the strain of the proceedings without
proper justification, they will consider whether the whole or any reasonable
proportion of the expenses incurred by the railway servant for his
defence should reimbursed to him.
(3) Procedings
initiated by railway servant on his being required by government to vindicate
his official conduct.—A railway servant may be required to vindicate his
conduct in a court of law when specific allegations are made in the Press
against him as an individual public officer. The question whether costs
incurred by the railway servant in such cases should be reimbursed by the
Government and if so to what extent, should be left over for consideration in
the light of the result of the proceedings. Government may, however,
sanction an interest-free advance not exceeding Rs.500/- or railway servant’s
substantive pay for three months whichever is greater in each case on the
execution of a bound by the railway servant in the form reproduced in
Annexure ‘B’. In determining the amount of costs to be reimbursed
on the conclusion of the proceedings, the Government will consider to what
extent the Court has vindicated the acts of the railway servant in the
proceedings. Conclusion of the proceedings in favour of the railway
servant will not by itself justify reimbursement.
(4) Proceedings
instituted by a railway servant Suo-Moto with the previous sanction of
Government to vindicate his conduct arising out of or connected with his
official duties or position.—If a railway servant resorts to a court of law with the previous
sanction of the government to vindicate his conduct arising out of or connected
with his official duties or position, though not required to do so by
government, he will not ordinarily be entitled to any assistance, but
government may, in deserving cases sanction advances in the manner indicated above,
but no part of the expenses incurred by the railway servant will be reimbursed
to him even if he succeeds in the proceedings.
(5) Proceedings
instituted against a railway servant by another railway servant in respect of
matters connected with the formers official position or duties.—Where, on the basis of the facts and
circumstances of the case, it is considered that it would be in public interest
to defend a railway servant in a case filed against him by another railway
servant in respect of matters connected with the formers official duties
or position latter railway servant be treated as a ‘private party’ and
assistance given to the former in terms of Rule 702(I)(1)(b). This will
not apply to cases in which the railway servants has/have been impleaded as
correspondent(s) by other railway servant(s) in suits against the
Government in regard to conditions of service, such as seniority etc.
(6)
Proceedings in respect of matters not connected with the official duties or
position of the railway servant.—Government will not give any assistance to a railway servant or
reimburse the expenditure incurred by him in the conduct of proceedings in
respect of matters not arising out of or connected with his official position,
irrespective of whether the proceedings were instituted by a private partly
against the railway servant or vice-versa.
(7) Procedure for
conducting defence.—(i) It shall rest
entirely with government to determine whether it would be just and proper that
the defence should be undertaken at the expense of government. If there is a
prima facie evidence that a railway servant has acted improperly, he should be
left to conduct his own defence, leaving the question of reimbursement to him
of the legal expenses incurred by him to be considered by government
subsequently on its merits.
(ii) Where suits or
criminal charges are brought against railway servants, arising out of
circumstances connected with their duty, the General Manager of a railway is
epowered to undertake their defence by employing such legal assistance as may
be considered necessary should, however, the law charges in any particular case
be estimated to exceed Rs, 50,000/-
( Rupees Fifty Thousand ) the prior sanction of the President shall be
obtained to the expenditure being incurred. Any costs awarded by the
Court of the railway cannot be set off against the expenditure for the
purpose of this limit.
(Authority : Railway Board's Letter No. E(G)2010/LL2/4 dated
24.11.2010) ACS No. 114
Railway Ministry’s
orders.—(a) The prior approval
of the Railway Ministry should invariably be obtained in regard to fees to
lawyers proposed to be engaged except incases in respect of which standing
arrangements have been made, i.e. cases handled by the Railway
Advocates/Central Government standing Counsel.
(b) Where a lawyer in
engaged at more than Rs. 750/- per day in the Supreme Court or in a court
Bombay or Calcutta or at more than Rs.Rs. 400/- per day elsewhere, it
should be regarded as a high fee and accordingly the express prior sanction of
the Railway Ministry should be obtained.
(c ) If in any case it is considered essential to engage the Attorney
General or the Solicitor General to appear in any Court, the approval of
the Ministry should be obtained.
(d) The fees of the Advocate General and other Law Officers
of State Governments engaged on behalf of the Central Government are not
governed by any general agreement between the officers and the Government of
India. Fees are not paid in Special Police Establishment cases to these
officers except to those part-time officers whose terms require payment by the
State Government in similar cases. In other cases, fees may have to be fixed
according to the merits of each case. When fees are paid to them, these
will be subject to the instructions contained in sub-paragraph (b) above.
The procedure in cases
where the total fee payable to a lawyer appearing in several cases before a
court on the same day, or a consolidated fee fixed per case, exceeds the
prescribed ceiling limits would be as follows—
(i) It will not be possible to lay down definite limits when fees are fixed per
case. The reasonableness or otherwise of fees in such cases will depend on
several factors such as the estimated duration of the trial the size of the
record to be studied, etc., and it will be for the Railway Administration to
judge whether the fees proposed are considered high. If it is considered
that the fees per case demanded by the lawyer are prima-facie high,
then the procedure laid down in sub-paragraph (b) above should be
followed. If however, the High Court has laid down the scale of fees in
regard to any class of cases payment upto the limits so laid down can be
regarded as reasonable.
(ii) When a lawyer is engaged for a number of cases for which he has to appear
in the Court on one and the same day and total amount of fees connected,
with those cases exceed the prescribed limits, if the fee for each case is
within those limits, the procedure laid down in sub-paragraph (b) above need
not be followed.
ANNEXURE ‘B’
BY THE BOND I ...........................................*having taken an
advance of Rs...............................(Rupees.....................................only)
from the President of India (hereinafter called the “Government”) promise to
pay to the Government the said sum of Rs. ........... in
.............................**.equal monthly installments of Rs............................
payable by the 10th every month commencing from
.....................................................#
2. And I agree that in
case I cease to be in Government service for any reason whatsoever, the entire
balance of the amount shall become at once due and payable and that in
case I fail to pay the same before the date of expiry of six months from the
date on which the payment of last instalment under this bound would have become
due but for my ceasing to be in Government service, whichever date
is earlier, the government without prejudice to any other right to which it
shall be entitled under any law for the time being in force, shall recover the
entire balance of the amount from me.
Dated this...........................day of.............................20.
..........................................................................
(Signature
of Government servant )
Witnesses to signature—
1. .......................................
2.........................................
Accepted
....................................
(Signature)
...................................
(Designation)
For
and on behalf of the President of India
|
* Here give the name and other particulars of Government
servant including the post held by him. ** Here mention the number of installments. # Here mention the date of commencement of the first
installment. @ Here mention the designation of the officer who is
authorized to execute the bond under Article 299 (1) of the
Constitution |
ANNEXURE ‘C’
SURETY BOND
Know all men by these presents that I ......................................................................son
of
Shri......................................................resident
of ......................................................in the District of
...................................................... ,at present employed as
a permanent......................In
the.............................................(hereinafter called “the
Surety”) am held and firmly bound to the President of India (hereinafter called
“the Government”) which expression shall include his successors and assignees
in the sum of
Rs....................(Rs........................................)
Only with all costs between attorney and client
and all charges and expenses that shall or may have been incurred
by or occasioned to the Government to be paid to the Government for which
payment to be well and truly made I hereby bind myself. My heirs, executors,
administrators and representatives firmly by these presents. As witness my hand
this.........................................day
of.............................................................. one thousand
nine hundred and ninety………..
Whereas the Government
has agreed to grant to Shri.............................. a resident
of..................... in the District of...................... at present
employed as temporary/quasi-permanent in
the................................(hereinafter called "the
borrower") at the borrower's own request an advance of Rs................
(Rs.............................. only) for
the...................................... and whereas the borrower has
undertaken to repay the said amount in. equal monthly installments.
And whereas in consideration of the Government having agreed to
grant the aforesaid advance to the Borrowers the surety has agreed to execute
the above bond with such condition as hereunder is written.
Now the condition of the above written bond is that if the said
borrower shall, while employed in the said........................ duly and
regularly pay or cause to be paid to the Government the amount of the aforesaid
advance owing to the Government by instal1ments then this bond shall be void
otherwise the same shall be and remain in full force and virtue.
But so nevertheless that if the borrower shall die or become
insolvent or any time cease to be in the service of the Government the whole or
so much of the said sum of Rs. .................. (Rs. ............……...only)
as shall then remain unpaid shall immediately become due and payable to the
Government and be recoverable from the surety in one installment by virtue of
this bond.
The obligation undertaken by the surety shall not be discharged or
in any way affected by an extension of time or any other indulgence granted by
the Government to the said borrower whether with or without the knowledge of
the surety.
The Government have
agreed to bear the stamp duty, if any, for this document.
(Signature of Surety)
Signed and delivered
By the said.........................
Designation........................ at................. Office to which
attached
...........................................................this..........................................
In the presence of—
of............................ 20
1.
.............................
Signature
...................
Addresses and occupation of the witnesses-
(I).................................
Accepted
(2)
...............................
.................................
For and on behalf of the
President of India
703. When the Government of India are
interested in a criminal prosecution either the Solicitor of the State
Government in whose State the accused is prosecuted should be employed, or,
when the prosecution is directly controlled from the headquarters of the
Government of India, the Solicitor will, if necessary, take further advice from
the Advocate General or the Government Advocate, according to the State in
which the prosecution is being conducted .
Railway Ministry's decision -When any case concerning a railway administration is to go
to the Supreme Court, the administration should entrust it to the Government
Agent, Central Agency Section, Ministry of Law, New Delhi, and the engagement
of a counsel, if necessary, should also be done in consultation with the
Government Agent.
704. No prosecution shall be instituted without
adequate legal advice being given in writing, and no prosecution shall be
instituted or withdrawn in any manner contrary to such legal advice without
reference to the Railway Ministry.
Government of India's decision. - Advocates or other legal practitioners
engaged on behalf of the Government of India should not settle out of Court or
compromise any suit or other civil proceeding without the express sanction of
the Government save......................................... in exceptional
circumstances when there is not sufficient time to consult appropriate
authorities of the Government of India and when not to settle or compromise the
matter would be definitely prejudicial to the interests of the Government.
When, in exceptional circumstances, such compromise or settlement is made
without the express authority of the Government of India, the advocate or other
legal practitioner engaged on their behalf should record in writing special
reasons for entering into the compromise or settlement on his own authority.
Similar instructions would apply to reference of a case to arbitration except that
as such a course is not required to be taken urgently the advocate or legal
practitioner engaged on behalf of the Government of India should, in each case,
obtain the previous sanction of the Government before agreeing to arbitration
on their behalf.
If Vakalatnama or Power
of Attorney is to be executed in favour of the advocate or other legal
practitioner to be engaged on behalf of the Government of India care should be
taken to incorporate the above condition therein.
(Railway Board's letter
No. E55LL2/19/3, dated the 5th May, 1955).
705. The fact that a case is under police or
judicial investigation shall not preclude a railway administration from making
departmental inquiries with the object of either modifying the procedure which
has given rise to the fraud or taking any disciplinary action, provided that
such departmental inquiries do not hinder or prejudice any police or judicial
investigation in progress. Before instituting departmental inquiries the Legal
Adviser of the railway concerned shall invariably be consulted.
* * *
Multiple choice questions:
. In which of the following cases is
reimbursement of legal expenses admissible for a railway servant?
a) When the case is related to
bribery and corruption in private dealings.
b) When the case is connected with
the execution of official duties.
c) When the railway servant is found
guilty of illegal gratification.
d) When the case has no connection
with official duties.
Answer: b) When the case is connected with the execution of
official duties.
2. Who is responsible for
determining whether a railway servant should be reimbursed for legal expenses
in cases connected with their official duties?
a) The General Manager
b) The Union Public Service
Commission
c) The Railway Board
d) The Solicitor General
Answer: c) The Railway Board
3. What type of legal fees is
generally excluded from reimbursement for a railway servant’s legal defense?
a) Professional charges
b) Clerkage
c) Consultation fees
d) Court fees
Answer: b) Clerkage
4. In which situation must the Union
Public Service Commission be consulted regarding the reimbursement of legal
expenses for a railway servant?
a) When the case involves private
dealings.
b) When the case is connected with
official duties.
c) When the railway servant has been
accused of bribery.
d) When the case is of a civil
nature.
Answer: b) When the case is connected with official duties.
5. What action should a railway
servant take if the Government undertakes their defense in legal proceedings?
a) Provide a statement as per
Annexure ‘B’
b) Reimburse the Government for
legal fees after the case
c) Submit a written agreement as per
Annexure ‘A’
d) Appoint their own legal counsel
independently
Answer: c) Submit a written agreement as per Annexure ‘A’
6. If a railway servant proposes to
conduct their own defense and the proceedings conclude in their favor, what is
considered before reimbursing legal costs?
a) The final judgment of the court
b) The total amount spent on the
defense
c) Whether the court has vindicated
the railway servant's acts
d) The approval of the Railway
Ministry
Answer: c) Whether the court has vindicated the railway servant's
acts
7. What amount of interest-free
advance can the Government sanction to a railway servant for their legal
defense?
a) Rs. 1000 or the railway servant’s
substantive pay for six months, whichever is greater
b) Rs. 500 or the railway servant’s
substantive pay for three months, whichever is greater
c) Rs. 2000 or the railway servant’s
substantive pay for one year, whichever is greater
d) Rs. 750 or the railway servant’s
substantive pay for four months, whichever is greater
Answer: b) Rs. 500 or the railway servant’s substantive pay for
three months, whichever is greater
8. Who must be consulted before
engaging the Attorney General or Solicitor General in any legal case involving
a railway servant?
a) The Union Public Service
Commission
b) The Railway Board
c) The Railway Ministry
d) The General Manager
Answer: c) The Railway Ministry
9. Which type of legal proceedings
does the Government not assist with regarding a railway servant's defense?
a) Proceedings connected with
official duties.
b) Proceedings initiated by the
State against the railway servant.
c) Proceedings involving civil suits
for damages.
d) Proceedings initiated by another
railway servant.
Answer: b) Proceedings initiated by the State against the railway
servant.
10. What is required of a temporary
railway servant who is granted an interest-free advance for legal defense?
a) They must submit an additional
bond.
b) They must provide a surety of a
permanent railway servant.
c) They must repay the advance
within 12 months.
d) They must provide an asset as
collateral.
Answer: b) They must provide a surety of a permanent railway
servant.
11. What is the maximum amount of
legal expenditure a General Manager can approve without prior Presidential
sanction?
a) Rs. 50,000
b) Rs. 1,00,000
c) Rs. 25,000
d) Rs. 10,000
Answer: a) Rs. 50,000
12. What should be done if a
lawyer's fees exceed Rs. 750 per day for cases in the Supreme Court?
a) Obtain approval from the General
Manager.
b) Obtain prior sanction from the
Railway Ministry.
c) Consult with the Solicitor
General.
d) Submit a formal request to the
Union Public Service Commission.
Answer: b) Obtain prior sanction from the Railway Ministry.
13. In which cases will no second
advance be granted to a railway servant?
a) If the first advance was less
than Rs. 500.
b) If the railway servant is a
temporary employee.
c) In respect of the same legal
proceedings.
d) If the legal proceedings are
connected to their official duties.
Answer: c) In respect of the same legal proceedings.
14. Under what circumstances can a
railway servant’s departmental inquiry proceed while a police investigation is
ongoing?
a) Only if approved by the Union
Public Service Commission.
b) If the inquiry does not hinder or
prejudice the police investigation.
c) When authorized by the General
Manager.
d) Only after the police
investigation is completed.
Answer: b) If the inquiry does not hinder or prejudice the police
investigation.
15. Which section under the
Government of India’s decision stipulates that no prosecution should be
instituted without legal advice in writing?
a) Section 703
b) Section 704
c) Section 701
d) Section 702
Answer: b) Section 704
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