Service law
Amit shrivastava
(Querist) 24 April 2014
This query is : Resolved
A Government Officer has been charge sheet due to a criminal offence under section 120B,419,420,384,170 and court took cognigence. At the time of act commence he was on leave or we can say not on duty but department has also issued a charge sheet for the same offence on account of mis conduct .
please inform me that in this case sanction under section 197 Cr PC is required or not.
if no then departmental charge sheet was justified or not
Anirudh
(Expert) 24 April 2014
Section 197 Cr.PC is applicable only in cases where offence alleged to have been committed by the Govt. servant while acting or purporting to act in the discharge of his official duty.
But not of the offences for which you have been booked will fall under that category and therefore the provisions of Sec. 197 Cr.PC has no application in the instant case.
Guest
(Expert) 24 April 2014
A student's academic query, not his own problem!
Sudhir Kumar, Advocate
(Expert) 24 April 2014
department can issue chargesheet regardless the criminal trial.
A govt servant is expected to maintain absolute integrity even in private life and charges you stated pertain to lack of integrity.
For any more advise give facts of the case.
Advocate. Arunagiri
(Expert) 24 April 2014
Departmental enquiry is different from the criminal cases.
The department can make their own opinion, even if the employee is acquitted from the criminal the department can take action based on their findings.
ajay sethi
(Expert) 24 April 2014
agree with Mr anirudh
Sudhir Kumar, Advocate
(Expert) 24 April 2014
repeated
http://www.lawyersclubindia.com/experts/protection-197-Cr-PC-468136.asp#.U1kEuKI1g48
Sudhir Kumar, Advocate
(Expert) 24 April 2014
also repeated
http://www.lawyersclubindia.com/forum/details.asp?mod_id=101293&offset=1#.U1kE8KI1g48
Amit shrivastava
(Querist) 24 April 2014
Thanks for your able guidance but still have some quary
Dingra ji this is actual case one of my relative.
Sudhir ji Then what is the use of 197 cr. PC. is same is irrelevant? If department can took action for any act in a private life i think it is against Article 19 of the constitution.
Agree with anirudh ji but still a question that; department has issued charge sheet that means it is treated as a part of duty.
please guide me sothat i may help some
Advocate. Arunagiri
(Expert) 24 April 2014
It seems in this case, CBI had filed the chargsheet based on the telephonic conversation. Naturally, only if there is any offense against the Central Govt, the CBI will register the case.
As the CBI had registered the FIR, the Govt would have decided to conduct enquiry based on the information got from CBI.
Now you have to say what is the allegation as per the CBI and as per the Govt.
T. Kalaiselvan, Advocate 
(Expert) 25 April 2014
Please answer the questions raised by expert Mr. Anirudh so that you can get proper answer
Dr J C Vashista
(Expert) 25 April 2014
Submit reply to the query raised by the experts, especially Mr. Anirudh.
Anirudh
(Expert) 25 April 2014
Dear Amit,
Issuance of the charge sheet by the department does not mean that you performed the acts in your official capacity; rather being a government servant you did not conduct yourself befittingly and exposed yourself to the charges levelled against you.
Amit shrivastava
(Querist) 25 April 2014
Now i submit case in detail. A and B was planning to fake search in the premises of X wherein B is the Government employee. B discussing this issue with another government servant C who serve in another state. one day C went to visit B's State to attend a family function and meet B meanwhile the discussion about search was going on and return back on his state after 3 days. Being a colleague B he gave his advice to him regarding the same. one day CBI reached C's residence and got searched but found nothing objectionable. During this time C was not available his residence he was out of station. SP CBI write to C's department that C's is not supporting investigation and call him with notice u/s 160. Department gave direction to C to support them on stipulated date. When C reached there CBI took him in custody without getting sanction 197 Cr PC. After taking cognizance and bail when C reached his parent department and detailed this mis happening. department suspended him and issued charge sheet on the same cause of action on same set of facts.
Qus 1. Whether sanction under 197 is not required in this case?
Qus.2 Is this departmental matter ?
Qus.3 Charge sheet given by the department is right where the firm of X is not registered with the department of C and also not in the state of C.
Qus.4 What is the remedy for this? As C is being charge only due his telephonic conversation.
Qus 5 Can C Approches to Human Right Commission for relief this time. give your valuable guidance
Sudhir Kumar, Advocate
(Expert) 25 April 2014
After so much long deliberation now you are giving the following facts
"Now i submit case in detail. A and B was planning to fake search in the premises of X wherein B is the Government employee. B discussing this issue with another government servant C who serve in another state. one day C went to visit B's State to attend a family function and meet B meanwhile the discussion about search was going on and return back on his state after 3 days. Being a colleague B he gave his advice to him regarding the same. one day CBI reached C's residence and got searched but found nothing objectionable. During this time C was not available his residence he was out of station. SP CBI write to C's department that C's is not supporting investigation and call him with notice u/s 160. Department gave direction to C to support them on stipulated date. When C reached there CBI took him in custody without getting sanction 197 Cr PC. After taking cognizance and bail when C reached his parent department and detailed this mis happening. department suspended him and issued charge sheet on the same cause of action on same set of facts."
Why did you hide these facts earlier?
Do you think that the experts are giving to free of cost [charitable} advise just to be joked like this?
Is it a game of hide and seek you are playing with experts?
Are you taking exam of experts here?
Sudhir Kumar, Advocate
(Expert) 25 April 2014
first of all be clear that you are here for advise and you are not here to be convinced whether law is correct or not.
Law is as is where is.
Sudhir Kumar, Advocate
(Expert) 25 April 2014
Even if you annoy the experts still cannot derive wilful wrong advise.
be clear about S/197. There is no need to seek permission under 197 for making arrest. This section comes to play only at the stage of chargehseet.
If you still feel that you are right you can file writ heabus corpus or can file FIR in local Thana against CBI officers on the charge of wrongful confinement and you will learn the law at appropriate cost.
S/197 applies only when Govt servant acting in official capacity commits an offence (i.e. bribery, espionage, Disproportionate Assessts)
Sudhir Kumar, Advocate
(Expert) 25 April 2014
re: you invoking Atricle 19
better read this article
19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise
IT IS NOT UNDERSTOOD AS TO WHERE DOE SIT PROHIBIT DISCIPLINARY ACTION AGAINST A GOVT SERVANT WHO VIOLATED ANY CONDUCT RULE.
Sudhir Kumar, Advocate
(Expert) 25 April 2014
NOW COMING TO DISCIPLINARY ACTION
It is the constitution of India vide proviso to Article 309 empowers President/Governor to make service laws.
Law so made become "procedure established by law" and can be used to bridge fundamental rights.
These rules also contain CCS( Conduct) Rules and rule 3(1)(i) of these rules provides that :-
(1) Every Government servant shall at all times--
(i) maintain absolute integrity;
THIS INTEGRITY HAS TO BE IN PROFESSIONAL FIELD AND IN PRIVATE LIFE AS WELL AND A GOVT SERVANT HAS NO LICENSE TO BE DISHONEST IN PRIVATE LIFE
Amit shrivastava
(Querist) 26 April 2014
Thanks sudhir ji for your valuable advice.Since i am student of law so my knowledge may be or may not be up to the mark but i still have some questions in my mind.
i am submitting here that charge sheet has been filed before honble court under Section 120 B ,420, 419,384. thay are in cover under the umbrella of 197.
i call the information under RTI Act from parent department of C . they inform that this is a departmental issue not a private issue.
In view of above my ques is applicability of section 197 is arise or not in the instant case.
Sudhir Kumar, Advocate
(Expert) 23 July 2014
further the charged officer is entitled to the services of a serving/retired employee of central/state govt.
He is called Defence Asstt.
Whether you have a Def Asstt or going to face inquiry wihout experience and knowledge.
Sudhir Kumar, Advocate
(Expert) 23 July 2014
repeated
http://www.lawyersclubindia.com/forum/Departmental-enquiry-106136.asp#.U8-9g0BvdG1
