1. Petitioner is aggrieved by the order dated 10.5.1995, whereby he has been removed from service on the charges of misconduct. The order, consequently, is under challenge in the present writ petition.
2. Petitioner was posted as a registration clerk in the office of Deputy Registrar, Stamp and Registration, Deoria. Certain unanimous complaints were received against him. It seems that petitioner was transferred to Mirzapur from Deoria on 7.1.1993 and he was also relieved on 30.1.1993, but he failed to join at the transferred place. An order of suspension, consequently, came to be passed against him and a charge sheet dated 28.4.1993 was issued, levelling following charges:-
"(1) Petitioner had purchased land in the name of his wife in 1959, 1972 and 1973 without informing and obtaining prior permission of the competent authority and had failed to submit reply to the letter dated 3.12.1992, whereby his explanation had been called rendering him guilty of violating U.P. Government Servant Conduct Rules, 1956.
(2) Petitioner had purchased a car in 1987 in the name of his wife without intimation and permission of the appointment authority, violating the Rules of 1956.
(3) Petitioner had been transferred under orders of Inspector General (Registrar) on administrative ground from Deoria to Mirzapur on 7.1.1993, and the order of transfer was not complied with, instead an application for grant of medical leave w.e.f. 6.3.1992 to 6.3.1993 was moved without enclosing any medical certificate, and therefore, petitioner had failed to carry out directions issued by the competent authority."
3. Petitioner denied the charges levelled vide his reply dated 30.6.1993 and various factual averments were made in his defence. Assistant Inspector General (Registration) was appointed as an enquiry officer, who held the enquiry and submitted his report. As per enquiry report following findings were returned:-
"(i) In respect of charge no.(1)(a), which related to purchase of land in the year 1959, it was observed that no permission was required as petitioner was not in service at that time.
(ii) In respect of charge no.1(b), which related to purchase of land in the name of his wife in the year 1972 and 1973, enquiry officer found situation to be not clear, inasmuch as petitioner is stated to have sent two letters seeking permission to purchase land, but it is not clear as to whether any permission was granted or not.
(iii) In respect charge no.1(c), insofar as it referred to non submission of explanation pursuant to letter dated 3.12.1992, the enquiry officer found the petitioner guilty of the charges levelled.
(iv) In respect of charge no.2 regarding purchase of car in the name of petitioner's wife, the enquiry officer found that petitioner had apparently sent information about purchase of car, but it is not clear as to whether any permission was granted or not.
(v) In respect of charge no.3, the enquiry officer found that in view of the documents produced, the charge was not proved as the petitioner had remained on leave.
4. A show cause notice thereafter was served upon the petitioner alongwith enquiry report on 1.6.1994, granting him an opportunity to submit his reply, as to why a major punishment be not imposed upon him, but the same was not replied.
5. The disciplinary authority, in respect of allegation relating to purchase of land in the name of petitioner's wife in the year 1959, proceeded to hold that there was no specific charge of obtaining permission and the only requirement was of disclosure of such property at the time of entry into service on 2.8.1961. The disciplinary authority found that there was no charge levelled about non disclosure of this property, and as such, the charge levelled was held to be not proved. So far as the charge of purchase of land in the name of his wife in 1972 is concerned, it was held that a sale deed had been executed on 2.7.1972 and was registered in the office of Deputy Registrar (Registration). The disciplinary authority noticed petitioner's defence that he had sent a letter under posting certificate on 15.6.1972 to District Registrar, Gorakhpur, but mere sending of communication was held to be not sufficient compliance of law since it had been sent directly to the registrar. Disciplinary authority came to the conclusion that a prior permission was required, which was missing, and therefore, the charge levelled was proved.
Similarly, in respect of purchase of land in 1973, petitioner was posted in the office of Sub Registrar (Hata). The defence of intimation under posting certificate to the District Assistant Registrar on 30.5.1973 was noticed, but it was again found that requirement of obtaining prior permission from the appropriate authority was missing and mere sending of letter under posting certificate was not sufficient. The charge, therefore, was held to be proved. The disciplinary authority agreed with the conclusions of enquiry officer that petitioner has failed to submit his reply though an explanation had been called from him on 3.2.1992, and the petitioner was found negligent and careless in performing the duties. So far as purchase of car in 1987 in the name of petitioner's wife is concerned, it was held that petitioner had purchased a car in the name of his wife for a sum of Rs.17,500/- in respect of which no intimation was given to the appointment authority. A finding has been returned that no permission of the appropriate authority had been obtained for purchasing the car and the defence of sending letters directly to District Registrar under posting certificate was not sufficient. The sources of fund disclosed by the petitioner was also found to be doubtful. The vehicle was not purchased from any established and well reputed trader, and therefore, permission of appropriate authority was mandatory before purchasing a car, which was not obtained and petitioner was guilty of the charge levelled.
6. So far as the allegation with regard to petitioner's absence is concerned, also the disciplinary authority found that no justifiable cause existed for petitioner's absence from duty and the petitioner had failed to perform his duties. With these findings disciplinary authority found petitioner's integrity to be doubtful and an order removing him from service has been passed.
7. Learned counsel for the petitioner has made following submissions:-
"1. The respondent authorities failed to consider the reply submitted by the petitioner before District Registrar, and the objection that petitioner should have initially approached through Deputy Registrar is illegal and arbitrary, inasmuch as the petitioner had duly informed the authority concerned.
2. The respondent authorities failed to consider that it is not a case where the petitioner has not informed but a case where the petitioner has informed the authority through proper means but as per the allegation appropriate authority has not been informed which is arbitrary, illegal and against the provisions of law.
3. The respondent authorities failed to consider the fact that there had been no hiding of any information by the petitioner at any point of time instead he had showed his clear and genuine intention of informing the respondent authority.
4. The departmental proceedings had not been carried out in compliance of the principles of natural justice as no opportunity to cross-examine the witnesses was awarded to the petitioner.
5. The major penalty imposed is too harsh and severe vis-a-vis the gravity of the charge imposed as petitioner had acted in accordance with the law."
8. Learned counsel for the petitioner has placed reliance upon judgments of this Court in Shyam Bahadur vs. U.P. State Food & Essential Commodities Corp. Ltd. in Writ Petition No.798 of 2007, Mirja Barkat Ali vs. Inspector General of Police, Allahabad and others: (2002) 2 UPLBEC 1871 and L.K. Jain vs. Punjab National Bank and others: 2014 (1) ADJ 319.
9. Sri Pradeep Kumar Tripathi, learned Standing Counsel for the respondents has opposed the submissions advanced on behalf of petitioner and it has been contended that the order of disciplinary authority suffers from no illegality so as to require interference by this Court. Learned Standing Counsel has placed reliance upon a judgment of the Apex Court in State of U.P. vs. Nand Kishore Shukla: 1996 AIR 1561.
10. Before proceeding to evaluate the submissions advanced on behalf of the parties, it would be appropriate to take note of rule 22 and 24 of the U.P. Government Servants Conduct Rules, 1956 (hereinafter referred to as 'the Rules of 1956') violation of which is alleged by the petitioner. Rule 22 and 24 of the Rules of 1956 is reproduced:-
"22. Lending and borrowing.- (1) No Government servant shall, except with the previous sanction of the appropriate authority, lend money to any person at interest or in a manner whereby return in money or in kind is charged or paid:
Provided that a Government servant may make an advance or pay to a private servant, or give a loan of a small amount free of interest to a personal friend or relative.
[(2) No Government servant shall, save in the ordinary course of business with a bank, Co-operative Society or a firm, or otherwise, place himself under pecuniary obligation to any person within the local limits of his authority, nor shall he permit any member of his family, except with the previous sanction of the appropriate authority, to enter into any such transactions:
Provided that a Government servant may accept a purely temporary loan not exceeding in value the amount of his two months' basic pay free of interest, from a personal friend or relative or operate a credit account with a bonafide tradesman.] (3) Where a Government servant is appointed or transferred to a post of such a nature as to involve in the breach of any of the provisions of sub-rule (1) or sub-rule (2), he shall forthwith report the circumstances to the appropriate authority, and shall thereafter act in accordance with such orders as may be passed by the appropriate authority.
(4) The appropriate authority in the case of Government servants who are Gazetted Officers shall be the Government and in other case, the Head of the office.] "24. Movable, immovable and valuable property.- (1) No Government servant shall except with the previous knowledge of the appropriate authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise, either in his own name or in the name of any member of his family;
Provided that any such transaction conducted otherwise than through a regular and reputed dealer require the previous sanction of the appropriate authority.
(2) A Government servant who enters into any transaction concerning any movable property exceeding in value, the amount of his pay for one month or rupees one thousand, whichever is less, whether by way of purchaser, sale or otherwise, shall forthwith report such transaction to the appropriate authority;
Provided that no government servant shall enter into any such transaction except with or through a reputed dealer or agent of standing or with the appropriate authority.
(3) At the time of first appointment and thereafter at intervals of five years, every government servant shall make to the appointing authority through the usual channel, a declaration of all immovable property owned, acquired or inherited by him or held by him on lease or mortgage and of shares and other investments, which may, from time to time be held or acquired by him or by his wife or by any member of his family living with, or in any way dependent upon him such declaration should state the full particulars of the property, shares and other investment.
(4) The appropriate authority may, at any times by general special order, require a government servant to submit within a period specified in the order a full and complete statement of such movable or immovable property held or acquired by him or by any member of his family as may be specified in the order a full and complete statement of such movable or immovable property held or acquired by him or by any member of his family as may be specified in the order. Such statement shall, if so required by the appropriate authority, including details of the means by which or the source from which such property was acquired.
(5) The appropriate authority-
(a) In the case of a government servant belonging to the State service, shall for purpose of sub-rules (1) and (4), be the Government and for sub-rule (2), the Head of the Department.
(b) in the case of other government servants for the purposes of sub-rules (1) to (4) shall be the Head of the Department."
11. The records available clearly indicate that charges of purchase of immovable or movable property had been levelled against the petitioner without previous knowledge of the appropriate authority. Appropriate authority under sub-rule (5) of rule 24 for a government servant belonging to state service is the State Government, and only in respect of of sub-rule (2) the appropriate authority would be head of department. Government servant as well as members of his family has been defined under rule 2(b) and (c) of the Rules of 1956, which reads as under:-
"2. Definitions.-
(b) "Government servant" means a person appointed to public services and posts in connection with the affairs of the State of Uttar Pradesh.
Explanation.- A Government servant whose services are placed at the disposal of a company, a corporation, an organization, a local authority, the Central Government or the Government of another State by the U.P. Government, shall, for the purposes of these rules, be deemed to be a Government servant notwithstanding that his salary is drawn from a source other than the Consolidated Fund of Uttar Pradesh.
(c) "member of the family" in relation to a Government servant, includes-
(I) the wife, son, step-son, unmarried daughter, or unmarried step-daughter of such Government servant, whether residing with him or not, and, in relation to a Government servant, who is a woman, the husband, son, step-sons, unmarried daughter or unmarried step-daughters dependent on her, residing with her or not, and
(ii) any other person related, whether by blood or by marriage, to the Government servant or to such Government servant's wife or her husband, and wholly dependent on such Government servant, but does not include a wife or husband legally separated from the Government servant or a son, step-son, unmarried daughter or unmarried step-daughter, who is no longer, in any way, dependent upon him or her, or of whose custody the Government servant has been deprived by law."
12. Petitioner being a registration clerk in the office of Deputy Registrar was a "government servant" belonging to state service and the Rules of 1956 are clear that for purchase of any immovable property by way of sale in his name, or in the name of member of his family, previous knowledge of the State Government was mandatory and where such transaction was conducted otherwise than through a reputed dealer, it required the previous sanction of the appropriate authority. Similarly, in respect of purchase of movable property, exceeding in value the amount of pay for one month, otherwise than through a reputed dealer or agent, it must be reported to the appropriate authority.
13. The charge levelled against the petitioner, in specific terms, is of violating the Rules of 1956, as immovable property in the name of petitioner's wife had been purchased without obtaining prior sanction of the appropriate authority. So far as the purchase of land in the year 1959 is concerned, both the the enquiry officer and disciplinary authority have rightly held that such charge was not made out, as petitioner was not a government servant then.
14. Petitioner in his reply, which has been annexed as Annexure-3 to the writ petition, had submitted as under:-
^^izkFkhZ us lu~ 1972 vkSj 73 esa Hkwfe dz; djus ds iwoZ rRdkyhu ftyk fucU/kd egksn; dks fnukad 15&8&72 ,oa fnukWd 30&5&73 dks Mkd ls vuqefr izkIr djus ds fy, izkFkZuk i= fn;k FkkA lk{; Lo:i izkFkZuk i= dh Nk;k izfr layXu gS rFkk Mkd dh jlhn dh Nk;k izfr Hkh layXu gSA fnukWd 3&12&92 }kjk ekWxs x;s Li"Vhdj.k ds mRrj esa foyEc gksus ds lUnHkZ esa izkFkhZ dk ;g fuosnu gS fd izkFkhZ mDr Li"Vhdj.k gsrq lk{; bdV~Bk dj jgk Fkk vkSj izkFkhZ okn esa rfc;r Hkh [kjkc gks xbZ ftlds dkj.k tokc nsus esa foyEc gks x;kA^^
15. Petitioner in his reply also tried to explain that such properties were purchased from the funds provided by other relatives. All such issues are not relevant inasmuch as the charge levelled against the petitioner was that petitioner had purchased movable and immovable property without obtaining departmental permission and without the knowledge of the competent authority. On this aspect, the only submission made by the petitioner is that he had sought permission of the then District Registrar vide letters sent under posting certificate dated 15.8.1972 and 30.6.1973. This Court has examined the report of enquiry officer, which is contained in Annexure-1 to the writ petition. According to the enquiry officer, sending of letters under posting certificate has been established by the petitioner, but it is not clear as to whether any permission was granted or not, and therefore, the charges cannot be said to be either proved or not proved. Much can be said about understanding of enquiry officer about requirement of law being met by mere sending of letters under certificate of posting (UPC), but as sufficient time has already lapsed and it is not clear as to whether the enquiry officer is still in service or not, therefore, no comments are being made on this aspect of the matter. The disciplinary authority nevertheless has rightly returned a finding that the charges were made out against the petitioner of illegally purchasing land as mere sending of letters to the District Registrar would not amount to compliance of provisions of the Rules of 1956. Similarly, in respect of charges relating to purchase of car the enquiry officer has treated sending of information vide letter under posting certificate to be proved, but as per him it is not clear as to whether permission has been granted or not. The disciplinary authority nevertheless has again returned a finding that the vehicle had not been purchased from any reputed dealer and prior permission or knowledge of appropriate authority, which was required, was not even claimed to be existing.
16. In view of the charge levelled, petitioner had to demonstrate that any previous sanction of the appropriate authority had been obtained before purchasing of land in the name of petitioner's wife. In the reply to the charge sheet, it is not even claimed that any such prior permission had been obtained. What was alleged was mere sending of letters under posting certificate to the District Registrar, Gorakhpur. Even if the letter is treated to have been sent to the District Registrar, Gorakhpur, it would not meet the requirement of law inasmuch as previous knowledge of the appropriate authority would mean previous knowledge of the State Government and not of the District Assistant Registrar in terms of rule 24 of the Rules of 1956. Admittedly, no previous sanction existed for purchase of such land. Similarly, in respect of purchase of car, which is a movable property, the transaction was not even claimed to have been reported to the appropriate authority i.e. State Government. No prior sanction was otherwise claimed to have existed. The charges, therefore, were clearly made out against the petitioner.
17. This Court finds that the Apex Court in State of U.P. vs. Nand Kishore Shukla (supra) had specifically dealt with rule 24 of the Rules of 1956 in following words in para 6:-
"6. A reading thereof clearly indicates that when a Government servant enters into transaction of movable or immovable property the procedure indicated in the service rules therein, i.e., no Government servant shall except with the previous knowledge of the appropriate authority acquire or dispose of and immovable property by lease, mortgage, purchase, sale gift or otherwise, either in his own name or in the name of any member of his family shall be followed. Under the proviso any transaction conducted otherwise than through a regular and reputed dealer requires the previous sanction of the appropriate authority. This is an admitted position. The contention of Shri Raju Ramachandran, learned senior counsel for respondent, is that in view of the finding given by the enquiry officer that 5 charges have been held proved and in view of the fact that charges 1, 3, 4 and 5 could not be gone into due to non-availment of opportunity on the part of the respondent it would not be predicated with certainty that the disciplinary authority would have passed the order of removal from service on the basis of charge 2 alone."
18. The provision contained under rule 22 and 24 have vital significance for ensuring transparency and efficient functioning of the State itself. The provision is intended to maintain a check on acquisition of property by the employees of the State Govt. and it is incumbent upon every public servant to scrupulously adhere to such provisions, as only then a watch could be kept against illegal accumulation of immovable and movable property. The charge against the petitioner was serious and from the reply submitted by the petitioner itself, it was substantially clear that the charged employee had not even claimed in his reply that he had complied with the requirement of law.
19. So far as the argument advanced by learned counsel for the petitioner of defect in holding of the enquiry on account of lack of oral enquiry is concerned, this Court finds that in view of the nature of charges levelled as well as reply submitted, there apparently was no need of oral enquiry in the matter. The petitioner had to demonstrate that he had complied with rule 24 of the Rules of 1956. Despite a specific charge of violation thereof, petitioner has not stated in his reply that he had complied with requirement of rule 24 i.e. of previous knowledge or previous sanction of the appropriate authority i.e. State Government. An oral enquiry in the matter would not change the scenario, nor any prejudice is shown to be caused to the petitioner on such count, as it would not have changed the consequences and no other conclusion was possible.
20. The judgment, which has been relied upon by the petitioner, i.e. Shyam Sundar (supra), this Court finds that the ratio laid down therein is of no help to the petitioner. Following observations made in para 19 of the judgment aptly applies to the facts of the present case:-
"19. The Court may hasten to add that the above mentioned law is subject to certain exception. When the facts are admitted, or no real prejudice has been caused to employee, or no other conclusion is possible, in such situation, the order shall not be vitiated. Reference may be made to the some of the decision of Supreme Court in K.L.Tripathi Vs. State Bank of India, AIR 1984 SC 273; State Bank of Patiala Vs. S.K. Sharma, AIR 1996 SC 1669 and Biecco Lawrie Ltd. & Anr. Vs. State of West Bengal & Anr., (2009) 10 SCC 32. "
21. Once the allegation of breach of rule 24 of the Rules of 1956 is established, an act of misconduct clearly is made out. Doubting the integrity of employee and the punishment awarded, in such circumstances, cannot be termed to be arbitrary or unreasonable.
22. The judgments in Mirja Barkat Ali (supra) and L.K. Jai (supra) have no applicability in the facts and circumstances of the present case in view of the findings already returned above.
23. The other charges levelled against the petitioner of failing to submit reply to the explanation called has also been found proved by the enquiry officer and the disciplinary authority. This Court has no reason to take a contrary view.
24. So far as the failure on part of the petitioner to join despite transfer is concerned, this court finds that such charge has not been found to be proved by the enquiry officer, but the disciplinary authority without recording reasons for disagreement with such findings, and without notice in respect thereof, has proceeded to treat the charge as proved, which is not in accordance with the principles of law laid down in Punjab National Bank and others vs. Kunj Bihari Mishra: (1998) 7 SCC 84, and therefore, cannot be accepted. Nevertheless charge nos.1 and 2 of purchasing movable and immovable property in violation of mandatory requirement of rule 24 of the Rules of 1956, as well as of failing to reply to the explanation sought, is made out, and as such, the order of punishment requires no interference. It appears that after complaint was received against the petitioner and his explanation was sought, petitioner failed to appear and also failed to submit reply, or to join pursuant to order of transfer, whereafter he was placed under suspension and ultimately dismissed.
25. Writ petition lacks merit and is dismissed. However, keeping in view that under an interim order petitioner continued to work and he has since died during pendency of writ petition, the benefits of salary etc. already extended to the petitioner shall not be recovered.
26. No order is passed as to costs.
Order Date :- 26.5.2016 Ashok Kr.
(Ashwani Kumar Mishra, J.)