Indian Railways

INDIAN RAILWAY ESTABLISHMENT CODE (Vol - I)

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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, 10,000/- 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. 

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. 

* * *