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PETITIONER: STATE OF U.P. & ORS.

       Vs.

RESPONDENT: NAND KISKORE SHUKLA & ANR.

DATE OF JUDGMENT:       11/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1561            1996 SCC  (3) 750  JT 1996 (3)   551        1996 SCALE  (3)69

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      We have heard learned counsel for the parties.      Leave granted.      This appeal  by special  leave arises from the order of the Allahabad High Court. Lucknow Bench made on September 5, 1991 in  W.P. No.9550 of 1989. The respondent had challenged the order  of his  removal from service. He was appointed on December 4,  1973 as  a Clerk in the Collectorate, Hardoi on temporary basis.  He was  removed from  service in  the year 1977  and,  ultimately,  by  orders  of  the  Court  he  was reinstated in  the service  on July 12, 1984. By proceedings dated  May  25,  1987,  he  was  kept  under  suspension  on disciplinary grounds  and  enquiry  was  conducted  in  that behalf. Though  opportunities were  given to the respondent, he did  not avail  it. He  had asked  for production  of  21 witnesses  for   cross-examination.  The   enquiry   officer considered that  nine witnesses  were relevant in respect of charges and  that  respondant  was  called  upon  to  cross- examine those  witnesses but  respondent had  not chosen  to cross-examine thoss  witnesses. Consequently  by proceedings dated December  5, 1987,  the enquiry  officer submitted his report holding  that the  5 charges  were proved against the respondent and  recommended for  his dismissal from service. The disciplinary  authority passed  the order  on January 6, 1988   removing    the   respondent    from   service.   The representative petition before the Service Tribunal resulted in dismissal.  His writ  petition was  allowed by  the  High Court. Thus, this appeal by special leave.      It is  seen that since the respondent did not cooperate in the  enquiry, the  witnesses could  not be  examined with regard to  charges 1,  3 and  5. Charge 2 relates to sale of properties worth Rs.91,000/- to the private persons and also purchase of  the properties  worth  Rs.10,000/-,  which  are admitted facts.  According to  the explanation  given by the respondent, he  sought oral  permission and  pursuant to the

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oral permission,  he had sold the properties. With regard to his capacity  to purchase  the properties worth Rs.10,000/-, he had stated that pursuant to his reinstatement in service, out of  payment of  arrears of  a sum  of Rs.40,000/- he had purchased the  properties worth  Rs.10,000/-.  According  to him, his  father had purchased the property in his name and, therefore, he  had to  execute the  sale deed  to the  third party as  a vendor.  This was  brought to  the notice of the authorities and that oral permission was given. The question is: whether oral permission is valid in law?      Rule 24  of the  U.P. Government Servant Conduct Rules, 1956 is as under :-      "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

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    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."      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.      It is  settled law  that the  court is  not a  court of appeal  to  go  into  the  question  of  imposition  of  the punishment. It is for the disciplinary authority to consider what would  be the nature of the punishment to be imposed on a  Government  servant  based  upon  the  proved  misconduct against the  Government servant.  Its  proportionality  also cannot be  gone into  by the  Court. The  only question  is: whether the disciplinary authority would have passed such an order. It  is settled  law that  even one of the charges, if held proved  and sufficient for imposition of penalty by the disciplinary authority  or by  the appellate  authority, the Court would  be loath  to interfere  with that  part of  the order. The  order of  removal does  not cast  stigma on  the respondent to disable him to seek any appointment elsewhere. Under these  circumstances, we think that the High Court was

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wholly wrong in setting aside the order.      The appeal  is accordingly  allowed. No  costs.  It  is stated that  the respondent  has not  been paid  subsistence allowance during  the period of suspension. Liberty is given to  the  respondent  to  approach  the  Government  and  the Government  and  the  Government  would  consider  the  same according to rules.