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Judgment
l. Gupta, J.—The petitioner, a Member of the Superior Judicial Service, challenges the order dated August 21, 1997 by which he has been awarded the penalty of stoppage of two annual increments without cumulative effect. The petitioner alleges that the order is contrary to the rules and cannot, thus, be sustained. He prays that the order be quashed. A few facts as relevant for the decision of this case may be briefly noticed.
The petitioner was recruited to the Haryana Civil Service (Judicial Branch) on July 29, 1977. On May 4, 1988, he was promoted to the Haryana Superior Judicial Service and appointed as an Additional District & Sessions Judge. He was confirmed as such on January 29, 1991. On January 27, 1995, the petitioner was served with a charge sheet. It was inter alia alleged that while posted as Additional District & Sessions judge, a Civil Appeal (Dilbag Singh and Another v. Virpal Kaur etc.) was assigned to his Court. It was dismissed by him on April 29, 1993 on "extraneous considerations". In consideration, he had "obtained a sale deed of land measuring 10 marlas in Village Kherpur. The sale deed was executed on 29.9.1992 ..... A perusal of the copy of the sale deed clearly shows that Jangir Kaur, Virpal Kaur and Santosh Kaur, daughters of Sukhdev Singh have sold a plot of land to Smt. Gayatri Devi wife of Shri Pitamber Lal son of Shri Ram Partap, r/o village Bapora, tehsil and district Bhiwani. The said plot appears to be located in the periphery of municipal town of Sirsa. The sale deed has been executed in such a manner that identity of the real purchaser may not be disclosed or known.."It was alleged that the petitioner had described his wife "as wife of Pitamber Lal.." From this, it was concluded that "a definite and deliberate attempt has thus been made to keep the sale deed a close(ly) guarded secret." Various other allegations which need not be noticed at this stage were also made.
The second charge against the petitioner was that "while purchasing (the) plot in question in the name of your wife, you neither obtained prior permission from this court nor an intimation was sent to this Court as per the requirement of Rule 18(2) of the Government Employees (Conduct) Rules) 1966 as applicable to Haryana. The acquisition of the aforesaid plot was also not shown in the property statements for the years 1992-93 and 1993-94."
The charges against the petitioner were enquired into by an Hon''ble Judge of this Court. After a detailed examination of the oral and documentary evidence, it was held that "charge No. 1 has not been established against the delinquent officer, Mr. P. L. Goyal." With regard to the second charge, it was held that "in view of this clarification issued by the State Government and communicated to all the District and Sessions Judges in the state of Haryana by the Registrar of this Court vide endorsement dated February 26, 1993, the delinquent officer, Shri P. L. Goyal did not commit breach of Rule 18(1) of the said rules. by not showing the aforesaid immovable property purchased by his wife from her own funds in the property returns filed in the financial years 1992-93 and 1993-94. It is obvious that the clarification was issued within the financial year 1992-93 and as such it was applicable for the property returns to be filed for the financial year 1992-93 and for the subsequent financial years." It was, however, observed that the provision of Rule 18(2) "enjoined upon the delinquent officer, Shri P. L. Goyal to obtain prior permission of this Court, permitting his wife to enter into the transaction of sale of the said plot ..... The State Government vide letter Exhibit R-35 did not issue any clarification regarding Rule 18(2) of the said rules. The delinquent officer has, thus, committed this lapse by not applying for prior sanction of the court or even subsequent to the sale transaction, by not applying for ex-post-facto sanction of the court. Subject to this lapse on the part of the delinquent officer, the second charge in other respects is not found established".
In pursuance of this report, the petitioner was served with a show cause notice vide letter dated March 29, 1997 explain as to why one of the minor penalties be not imposed upon him for "the lapse found in the enquiry". A copy of the letter dated march 29, 1997 has been produced as Annexure P. 2 with the writ petition. The petitioner submitted a reply vide his letter dated April 5, 1997. A copy of this letter is at Annexure P.5 with the writ petition. It was inter alia pointed out that his wife "had intended to dispose of her jewellery ...." Regarding this, he "had sent intimation to the High Court vide letter dated 10-10-1990 ..... (Ex. R. 9 on the enquiry file)." Mrs. Goyal had sold the ornaments on February 1, 1991 to a firm at Delhi for a sum of Rs. 1,29,664/- (Ex. R. 10 on the enquiry file). The amount was received by her vide bank draft drawn on the Union Bank of India (Ex. R-11 on the enquiry file). She was assessed to income tax and the copy of the order passed by the assessing authority was Ex. R. 13 on the enquiry file. Out of the sale proceeds, she had withdrawn an amount of Rs. 30.000/- vide cheque dated September 17, 1992 (Ex. R. 7 on the enquiry file) to be paid to the vendors. The Hon''ble Judge who had enquired into the matter had found that the evidence produced by him left "no room for doubt that the transaction of sale was entered into between Mrs. Goyal and the vendors ... Smt. Gayatri Devi, the vendee, wife of Shri P. L. Goyal ... had sufficient funds of her own and she paid the sale consideration of Rs. 30,000/- at the time of registration of the sale deed. The rate per killa of the land was demanded at the rate of Rs. 2,00,000/- and at this rate, the sale consideration for 10 marlas of land cannot be said to be inadequate. There appears to be nothing fishy in the sale transaction." In the background of this factual position, it was asserted that the provisions of Rule "18(2) requiring prior or ex-post-facto sanction of the High Court did not come into play." It was further asserted that even on a literal interpretation of the rule, he could not be held guilty. Thereafter, vide order dated August 21. 1997, the petitioner was awarded the penalty of stoppage of two increments without cumulative effect. Hence this petition.
Separate written statements have been filed on behalf of the State Government and the High Court. The claim made by the petitioner has been controverted.
Learned Counsel for the parties have been heard. On behalf of the petitioner, it was contended by Mr. C. B. Goel that he had not acted in violation of the provisions of Rule 18(2). The claim was controverted by Mr. Jagdish Singh Khehar who argued the case on behalf of the High Court, He contended that even when a member of the family of a Government employee purchases a property out of personal resources, the provisions of Rule 18(2) are attracted.
The short question that arises for consideration is -Did the petitioner act in violation of the provisions of Rule 18(2) of the Government Employees (Conduct) Rules, 1966 ?
It is apt to notice the provisions of the rule :
"18(2) : No Government employee shall except with the previous knowledge of the prescribed 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 the previous sanction of the prescribed authority shall be obtained by the Government employee if any such transaction is -
(i) with a person having official dealings with the Government employee; or
(ii) otherwise than through a regular or reputed dealer."
A perusal of the above provision would show that it debars a Government employee from acquiring or disposing of immovable property without the previous knowledge of the employer. If the property is being acquired from a person having official dealings with the Government employee, he is required to get prior sanction. Otherwise, he has to send intimation. The rules are calculated to govern the conduct of the Government servant. In the matter of acquisition of property, the restriction is placed on the employee.
Mr. Khehar contended that the petitioner had knowledge of the fact that his wife was acquiring property from a person whose case was pending before him. In this situation, the case fell within the mischief of the proviso. Thus, the petitioner was required to obtain the previous sanction of the prescribed authority.
Even if it is assumed that the petitioner had the knowledge as suggested on behalf of the respondents, he was required to inform the prescribed authority or obtain its previous sanction only if he was acquiring or disposing of property "either in his own name or in the name of any member of his family." In the present case, it is established on the record that the petitioner''s wife had bought the plot of land with her own money. She is not a Government servant. The petitioner had not paid for the transaction. He was not acquiring the property either in his own name or in the name of a member of his family. Consequently, the transaction did not fall within the mischief of Rule 18(2).
It is undoubtedly correct that a Judicial Officer''s conduct has to be above suspicion. It would be really desirable that whenever an employee or a member of his family acquires property from a person with whom he has official dealings, the employer should know. However, the rule as at present does not say so. It shall be proper to plug the gap and to make a specific provision. However, in the present case, the limited question is-Did the petitioner act in violation of Rule 18(2) ? The answer to this question in the facts and circumstances of this case has to be in the negative. He was not acquiring any property either in his own name or in the name of any member of his family. Thus, he was under no obligation to either give prior intimation or to obtain prior sanction.
Mr. Goel had placed reliance on the decision of a Division Bench of the Orissa High Court in Sri Kalandi Charm Mallick v. Union of India and others 1981 (1) SLR 863. Even in this case, the provision which fell for consideration, was contained in Rule 18(2). The provisions are in pari-materia. It was held as under :
"It will thus, be seen that it is the acquisition by the Government servant on which restriction has been placed. The rule does not restrict the acquisition by a member of the family of the Government servant. It is to cover the benami transactions that it has been provided in the rule that no Government servant shall acquire any movable property in the name of any member of his family. What is implied in this rule is that the title to the property which is the subject-matter of any transaction vests in the Government servant. If the title remains with a member of the family of the Government servant and the transaction of transfer was not intended to convey any title to the Government servant, then even if the transaction in the name of the family of the Government servant is brought about with his knowledge, nothing in the said rule would affect him. The Departmental Authorities have not applied their minds to this aspect."
We are in respectful agreement with the view taken by their Lordships of the Orissa High Court.
No other point was raised.
In view of the above, this writ petition is allowed. The impugned order is set aside. However, in the circumstances, there will be no order as to costs.
Writ Petition allowed.