The concept of immunity for government servants from prosecution under the Code of Criminal Procedure (CrPC) is primarily governed by Section 197. It's important to understand that this is not absolute immunity, but rather a conditional safeguard against vexatious and frivolous complaints.
Here's a breakdown of the key points:
Who is covered?
It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the Petitioner forcing him to approach this Court. {Para 13}
14. This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ Petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the Respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the Petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.
IN THE SUPREME COURT OF INDIA
Writ Petition (Civil) No. 694 of 2015 (Under Article 32 of the Constitution of India)
Decided On: 13.04.2018
Shiva Kant Jha Vs. Union of India (UOI)
Hon'ble Judges/Coram:
R.K. Agrawal and Ashok Bhushan, JJ.
Author: R.K. Agrawal, J.
Citation: AIR 2018 SC 1975,MANU/SC/0369/2018.
Print PageIt may also be appropriate to refer to the decision of this Court in Poonamal v. Union of India, MANU/SC/0359/1985 : (1985) 3 SCC 345, wherein the purpose for which 'family pension' is granted, was highlighted by this Court in the following words:
Family pension came to be conceptualised in the year 1950. When a Government servant die in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the widow was hardly in a position to obtain gainful employment. She suffered the most in as much as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socioeconomic justice family pension scheme was devise to help the widows tie over the crisis and till the minor children attain majority to extend them some succour. This appeared to be the underlying motivation in devising the family pension scheme. It was liberalised from time to time. {Para 12}
It is evident from the passage quoted above that family pension was devised as a means to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. Therefore, the definition of the term 'family' cannot be extended to include those persons who were not even dependents of the government servant, at the time of his death.
12.1. In the present case, the heirs listed Under Rule 54(14)(b) of the CCS (Pension) Rules are the immediate dependents of the deceased government servant. Therefore, persons who were not dependant on the government servant prior to his death cannot be held to be included in the definition of 'family' Under Rule 54(14)(b) of the CCS (Pension) Rules.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 386 of 2023
Decided On: 17.01.2023
Ram Shridhar Chimurkar Vs. Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
K.M. Joseph and B.V. Nagarathna, JJ.
Author: B.V. Nagarathna, J.
It also cannot be disputed that the amendment
in the rules as made vide notification dated 12.6.2018 was
to come into force from the date of its publication in the
Rajpatra of Himachal Pradesh. {Para 7}
8. The question thus arises whether the petitioner
who had retired on 31.8.2017 would be entitled to the
benefit of notification dated 12.6.2018?
9. In my considered view the question deserves to
be answered in affirmative for the reason that pension is
earned by a government servant in lieu of the services
rendered by him. It is the security for which he serves the
public besides what he earns by way of monthly
emoluments during service. The rules prescribing the
norms for disbursement of the amount of pension have to
be considered in that perspective. Since it is a beneficial
provision for the government servant, therefore, any
narrow construction will render the purpose of granting the
same otiose.
10. Since, the notification dated 12.6.2018 was for
the benefit of an entire class i.e. class III and IV employees
of the State Government it could not be construed to
benefit only those who would retire after the issuance of
the notification for such a classification will clearly be
discriminatory. The pension is a recurring benefit to a
retired government servant, therefore, the notification
dated 12.6.2018 promulgating a beneficial rule will also
enure for benefit of petitioner, who still was entitled to
pension on the date of such promulgation.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 7658 of 2020
Veena Devi Vs State of H.P. &others
Coram:
The Hon’ble Mr. Justice Satyen Vaidya, Judge.
Decided on : 28.8.2023.
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In the present case, respondent is not acquitted on merits. His
acquittal is attributable to compromise with his wife. Petitioner-State therefore cannot be saddled with the liability to pay salary and allowances during the period when respondent remained under dismissal. He incapacitated himself from performing duties owing to his conviction. It is also pertinent to note that respondent’s conviction was upheld even by the appellate court. This further prolonged the period of his dismissal. in such
circumstances it is highly debatable whether any back wages were payable to Respondent. Nonetheless the State Government decided to pay 50% salary and allowances to him during the intervening period. However, to expect payment of 100% salary and allowances during that period would be highly undesirable. Respondent had involved himself in a criminal case arising out of his private affairs unconnected with performance of his duties.
He kept himself away from his duties on account of his conviction. In such circumstances there is no question of payment of full salary and allowances to the respondent. {Para 16}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 2470 OF 2018
The State of Maharashtra Vs Shri Surendra G. Ghodake
CORAM : S. V. GANGAPURWALA, ACJ &
SANDEEP V. MARNE, J.
DATE : 8th MARCH, 2023.
JUDGMENT : (PER - SANDEEP V. MARNE, J.)
Citation: 2023 Lawweb (Bom HC ) 14.
Print PageIt is necessary that the scope of the benefit of family pension be restricted only to sons or daughters legally adopted by the government servant, during his/her lifetime. The definition of 'family' is narrowly worded under the CCS (Pension) Rules, in the specific context of the entitlement to 'family pension' and in relation to the government servant. Therefore, the word "adoption" in Rule 54(14)(b)(ii) of the CCS (Pension) Rules, in the context of grant of family pension, must be restricted to an adoption made by a government servant during his/her lifetime and must not be extended to a case of adoption made by a surviving spouse of the government servant after his/her death. This is because the object of the provision is to lend succour to a son till he attains the age of twenty-five years and unmarried or widowed or divorced daughter; similarly to the adopted son or unmarried adopted daughter when such an adoption had been made by the government servant during his/her lifetime.
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 386 of 2023
Ram Shridhar Chimurkar Vs. Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
K.M. Joseph and B.V. Nagarathna, JJ.
Author: B.V. Nagarathna, J.
Decided On: 17.01.2023.
Citation: MANU/SC/0041/2023
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In this regard we may refer to the decision of the Honourable Supreme Court in Krishnakant Raghunath Bibhavnekar vs. State of Maharashtra and ors. MANU/SC/0337/1997 : 1997 3 SCC 636. The cause of suspension and initiation of punitive action based on the petitioner's conduct leading to his prosecution were found to be sufficient to hold such suspension to be justified therein. The following observations in paragraph 4 are relevant and the same are reproduced as under:
"4. ... If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a matter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty (and on payment of subsistence allowance etc.). Rules 72(3), 72(5) and 72(7) of the Rules give discretion to the disciplinary authority. Rule 72 also applies, as the action was taken after the acquittal by which date the Rule was in force. Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal, he was reinstated into service, he would not be entitled to the consequential benefits. ..."
11. The Tribunal while considering the Original Application preferred by the petitioner has rightly held that the acquittal of the petitioner was after grant of benefit of doubt. Since the involvement of the petitioner was in a serious criminal offence and he was acquitted by giving him the benefit of doubt, it was held that the petitioner was not entitled for regularisation of the period of suspension by treating him to be "on duty". All relevant aspects of the matter have been considered by the Tribunal and we do not find any reason to take a different view from the one taken by it. It cannot be said that while passing the impugned order dated 13/04/2016 holding the petitioner not entitled to pay and allowances for the period of suspension, the Competent Authority acted arbitrarily.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 1917 of 2021
Ravindra Prasad Munneshwar Prasad Vs. Union of India and Ors.
Hon'ble Judges/Coram:
A.S. Chandurkar and G.A. Sanap, JJ.
Author: A.S. Chandurkar, J.
Decided On: 31.03.2022
Citation: MANU/MH/1079/2022
Print PageHaving heard the learned counsel for the parties, we first examine Petitioner's contention that the act of turning hostile does not amount to misconduct. Perjury is an offence punishable under Section 191 of the Indian Penal Code (for short "I. P. Code"). If the petitioner had committed offence of perjury, the Sessions Judge ought to have issued notice to him and tried him for that offence. Whether he had committed offence of perjury or not can be established by the Sessions Judge alone. The same cannot be established in a disciplinary enquiry. The law provides for a complete mechanism to punish a person committing office of perjury. Turning hostile, by itself, is not an offence. The only Court competent to record a finding of commission of perjury was the Sessions Judge. The appointing authority, not being an expert, would otherwise not be in a position to gauge the factors leading to hostility of the witness. After considering the testimony of the petitioner, the Sessions Judge has thought it appropriate not to issue notice to him for trial for the offence punishable U/Sec. 191 of the I.P. Code. Therefore, it is difficult to hold that the act of giving testimony before Sessions Judge as misconduct and to punish the petitioner for the same. {Para 7}
8. One may morally expect a witness to stand by his previous statement during trial. For a government servant, a higher degree of responsibility could be expected by assisting the prosecution to bring home guilt of the accused by sticking to the statement previously recorded. However, whether this 'expectation' could be extended to an extent that the act becomes a misconduct capable of being punished is the issue.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Writ Petition No. 2352 of 2018
Abdul Rauf Mohammed Khaja Vs. The State of Maharashtra and Ors.
Hon'ble Judges/Coram:
Mangesh S. Patil and Sandeep V. Marne, JJ.
Author: Sandeep V. Marne, J.
Print Page
A bare perusal of the afore-quoted provision of Article 351-A
of the CSR shows that once the government servant retires, it is the Governor who has the right of withholding or withdrawing the pension or any part of it, permanently or for a specified period. The Governor under the said provision has also the right of recovery from the pension of the whole or part of any pecuniary loss caused to the Government, if the employee is found in departmental or judicial proceedings to have caused pecuniary loss to Government by misconduct or negligence during his service or he has been found guilty of gross misconduct. {Para 17}
18. It is, thus, clear that after retirement, withholding or
withdrawing a pension and ordering the recovery from pension is permissible to be caused only by the Governor i.e. the State
Government in terms of the Rules of Business, not only in case
such employee is found causing pecuniary loss to the Government by his misconduct or negligence but also in a cases when the employee concerned is found guilty of grave misconduct.
19. The provision of first proviso appended to Article 351-A of
the CSR clearly prohibits institution of departmental proceedings except with the sanction of Governor if such proceedings were not instituted while the employee was on duty either before retirement or during re-employment. Thus, Article 351-A of CSR puts a prohibition of initiating the departmental proceedings in a case of retired government servant, however, such proceedings are permissible to be instituted with the sanction of Governor, that too, in respect of an event which took place not more than four years before institution of such proceedings. The provision further provides that departmental enquiry in such an event shall be conducted by such authority and at such place as the Governor may direct and in accordance with the procedure applicable.
ALLAHABAD HIGH COURT
Case :- SPECIAL APPEAL No. - 408 of 2021
Appellant :- Gaya Prasad Yadav
Respondent :- State Of U.P.Thru.Prin.Secy.Home Lucknow And
Anther
Coram:
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Shree Prakash Singh,J.
Order Date :- 23.9.2022
Print PageAs observed above, no reason has been
set out by the State Government for removal of
petitioner, when the admitted position is that
the removal of the petitioner is on account of
Doctrine of Pleasure. The law laid down by the
Hon’ble Apex Court in case of B.P. Singhal
(supra) would clearly apply to the facts of case
that withdrawal of pleasure cannot be at the
sweet will, whim and fancy of the authority but
can only be for valid reasons. Mere using the
word public interest can not become a ground for
removal of petitioner from the Board. There
should be valid reasons for removal. {para 18}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2852 OF 2020
Sanjay S/o Kisanrao Kenekar Vs The State of Maharashtra
CORAM : S.V. GANGAPURWALA AND S.G. DIGE, JJ.
PRONOUNCED ON : 04th MARCH, 2022
JUDGMENT (PER S.G. DIGE, J) :
Print PageMoreover, petitioners claim their
occupation over the tenements from the Government,
pursuant to they or their predecessors to be in
Government service. The tenement was a facility
provided to them in service for accommodation. The
petitioners or their predecessors are claiming
their occupation over the tenements from the
Government. They do not have any right to deny the
title of the Government from whom they were
inducted in possession nor any other entity or a
persons is claiming a better title than the
Government. It is futile to enter into the debate
in this regard. The person who is inducted in
possession cannot deny the title of a person who
has inducted him in occupation, unless the person
inducted in occupation claims a better title. It
is also to be noted that, as far as the issue of
ownership of the Government is concerned the same
has been set to rest in the earlier judgments.
There is no reason to again enter into the
rigmarole of the ownership right. Nonetheless,
petitioners are not claiming ownership rights nor
they can claim ownership over the tenement in their
occupation. In light of the above, it is not open
for the petitioners to deny the ownership right of
the Government.
24. The petitioners have also emphasised much
upon the legality of public notice under Section
264 and 265-A of the Act, 1949. The Division Bench
of this Court in case of Municipal Corporation of
Greater Mumbai Vs. State of Maharashtra (supra) and
another judgment in case of Mr. Jaswant Shivlal
Chandarana and Anr. Vs. State of Maharashtra
(supra) has laid down the guidelines of the manner
in which the structural audit has to be based. In
the present case, petitioners do not have any right
to retain the occupation of the tenements. The
person who does not get a right to occupy and
remain in possession of a tenement does not have
locus to assail the impugned notices on the ground
that the procedure and the test required as per the
guidelines of the Division Bench of this Court in
case of Municipal Corporation of Greater Mumbai Vs.
State of Maharashtra (supra) are not performed. The
Government and Corporation have also placed on
record reports issued by the Department of the
Applied Mechanics, Government Engineering College,
Aurangabad. We may not enter into the said
aspects, as in our opinion petitioners would not
have any legal right to agitate against the same.
The petitioners do not have legal right to continue
occupying tenements having suffered earlier
adjudication.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12527 OF 2021
Dinker s/o Bhaburao Lokhande Vs The State of Maharashtra
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
Dated : 20.01.2022.
(Per S. V. Gangapurwala, J.) :-
Print Page43. The bargaining power is vested with the employer itself and the employee is left with no option but to accept the conditions dictated by the authority. If that being the reason, it is open for the employee to challenge the conditions if it is not being in conformity with the statutory requirement under the law and he is not estopped from questioning at a stage where he finds himself aggrieved.
Supreme Court
JUSTICE UDAY UMESH LALIT JUSTICE AJAY RASTOGI
SOMESH THAPLIYAL & ANR. ETC. Vs. VICE CHANCELLOR, H.N.B. GARHWAL UNIVERSITY & ANR.
CIVIL APPEAL NO(S). 3922-3925 OF 2017
3rd September 2021
Author: Rastogi, J.
Citation: 2021 ALL SCR (ONLINE) 404
Print PageThe direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law.
Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State. The State
Government has complied with the directions of this Court for the payment
of the outstanding dues in two tranches. Insofar as the interest is concerned,
we are of the view that the rate of 12% per annum which has been fixed by
the High Court should be suitably scaled down. While learned counsel for the
respondents submits that the award of interest was on account of the action
of the Government which was contrary to law, we are of the view that the
payment of interest cannot be used as a means to penalize the State
Government. There can be no gainsaying the fact that the Government which has delayed the payment of salaries and pensions should be directed to pay interest at an appropriate rate.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 399 of 2021
The State of Andhra Pradesh Vs Smt Dinavahi Lakshmi Kameswari
Dated: February 8, 2021
Print PageThe reply of the Government is short and opposes the prayer
of the petitioner on two grounds. Firstly that there was no referral order allowing the petitioner to take the treatment from outside the State and secondly, there were no extra ordinary urgent grounds for the petitioner to have travelled outside the State for his treatment without presenting himself before the Medical Board.
[5] Both the objections of the Government need to be overruled.
Firstly, as noted the petitioner was struggling with aggressive infection on
his nose which did not get cured despite his treatment at the hands of
ENT specialist and skin specialist. The petitioner therefore desired to
have further investigations and opinion from the experts. He, therefore,
approached the authorities for permission to travel outside State. His
request dated 29th November, 2019 met with no immediate response. He could not wait any longer. He started his travel on 5th December, 2019. It was only thereafter that the Medical Board conveyed to him that unless and until he is present a referral order cannot be issued in his favour. On 7th December, 2019 the hospital at Vellore detected that the petitioner was suffering from cancer. Under such circumstances it was not expected for the petitioner to have waited for the Medical Board to call him for
personal appearance for grant of referral order which would delay his
treatment. As things turned out, having gone to Vellore for investigations,
the petitioner ended up the undergoing entire treatment even without
returning home for which purpose his leave was sanctioned by the
employer.
[6] Under such circumstances to expect the petitioner to wait for
the referral order is unreasonable. It is not even the case of the
respondents that the specialized treatment needed for such cancer is
readily available within the State. In other words going by the stand of the
respondents if the petitioner had presented himself before the Medical
Board and waited for long enough for the Medical Board to respond to
his request for grant of referral order, the same would have been granted.
Only on that ground to deny the benefit of reimbursement of medical
expenditure would be interpreting the policy of the Government too
rigidly. Further, the ground that there was no urgency in the petitioner
departing for treatment, also must be rejected. After having waited for
long enough for the treatment prescribed by the local doctors to have
effect and the treatment having failed to have desired effect, the petitioner
had to have a proper diagnosis and line of treatment. It is not as if the
petitioner departed immediately without informing the employer or even
the Medical Board. The petitioner did approach the Medical Board but
could not give too long a time for Medical Board to respond. The
petitioner had to take a calculated risk of departing without prior referral
order.
HIGH COURT OF TRIPURA
AGARTALA
W.P(C) No. 289/2020
Sri Kali Sankar Baidya, Vs. The State of Tripura,
HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI
Dated: 30/09/2020
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