SERVICE RULES - IMMOVABLE PROPERTY

Notes on the West Bengal Services (Duties, Rights and Obligations of Government Employees) Rules—1980

Introduction : Rights imply duties. Duties imply obligations to perform. No right can be absolute. Absolute rights without any duties and obligations may result in liberty with license to do anything. Such action may shake the foundation of the society. In the Fundamental Rights guaranteed under Art 19 of the Constitution for freedom of speech and expression, peaceably assembly without arms, forming associations or unions, free movement throughout India, to settle in any part of India and to practice any profession or to carry on any occupation or trade or business, the State has been empowered to make laws to impose reasonable restrictions in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. The Fundamental Right of equality of opportunity in matters of public employment is subject to provision/rules the State may make in regard to reservation of posts, any requirement as to residence or about religions for holding any office in a religious institution by a person professing a particular religion or belonging to a particular denomination.

Along with Fundamental Rights the Constitution has prescribed fundamental duties for the citizens under Art 51 A. When we think of fundamental rights, we should also abide by the fundamental duties.

Under Art 309, the State has been empowered to make rules to regulate recruitment and conditions of service for its employees. The WBS (Duties, Rights and Obligations of the Govt. Employees) Rules, 1980 had been framed in exercise of the said power and came into effect from 1st June, 1980 in replacement of the West Bengal Government Servants' Conduct Rules 1959. These rules apply to all employees of the Govt. of West Bengal excepting the members of the All India Services and Members of the Police and Jail staff falling under the purview of the Jail Code.

The rules give full trade union rights to its employees including right to strike. For obvious reasons the right to strike has not been given to the members of the WBCS (Executive & Judicial) and other allied executive, administrative, medical, engineering and educational services.

A Govt. employee is bound to observe the rules of conduct and discipline in the discharge of his duties and should not do anything, which is unbecoming of him. Govt. employees hold a position of trust and responsibility. Social relation and dealings of the employees should ensure that there is no ground or occasion to suggest that some individuals have more access or greater influence with them than others. Not only in official life but also in his private life, he should be above reproach.

It should be noted carefully that any violation or infringement of these rules shall be deemed to be a good and sufficient reason within the meaning of Rule 8 of WBS (Classification, Control and Appeal) Rules, 1971 for imposing penalties.

A Govt. employee is a public servant as defined in the Indian Penal Code. {Section 21 of the Code). A public servant is one who is to discharge some public duty. An honorary servant discharging a public duty is as much a Public Servant as a paid Govt. employee.

The word 'Strike' means cessation of work by a body of persons acting in combination or refusal to work or accept employment in any undertaking {Clause (q) of Sec. 2 of the Industrial Disputes Act.)

The duties, rights and obligations of the Government employees are enjoined in Rules 3, 4 and 5 respectively. These provisions are described below :

Rule 3 : Duties of a Govt. Employee ;

(1) Every Govt. employee should bear in mind that he is a public servant, shall faithfully discharge his duties, behave courteously with the members of the public and colleagues and shall always try to help them in all possible ways through quick and faithful discharge of duties assigned to him ;

(2) He shall rise above all personal, political or other considerations and maintain integrity, impartiality and devotion to duty

(3) Notwithstanding his personal views on any matter relating to State Policy and Programme, a Govt. employee must carry out faithfully the duties and responsibility entrusted to him as a Public servant;

(4) He shall practice, promote and encourage collective functioning in the interest of administrative efficiency and apply his personal initiative to the efficient discharge of his duties;

(5) When in the discharge of duties, he is called upon to decide a matter in which he or a relation of his is financially or otherwise interested, he shall, at the earliest opportunity, bring this fact in writing to the notice of the authority to whom he is subordinate;

(5) Every Govt. employee (other than a Group D employee) shall once in a year, submit in the prescribed form to the appointing authority a return of moveable and immovable property and other assets owned, acquired or inherited by him or any member of his family.

[Family means wife or husband and the child or the stepchild of the Govt. employee [ Rule 2 (d)}

(a) Devotion to duty means a Govt. employee must have to be obedient, faithful, careful and reasonably competent to discharge his duties. Any act or omission which runs counter to the expected code of conduct will constitute misconduct. Lack of efficiency, failure to attain highest standard of administrative ability or error in judgment in evaluating the developing situation are definite shortcomings of an officer but not misconduct unless it is malafide.

(b) Integrity implies honesty and uprightness. Govt. employees especially those holding positions of trust and responsibility should not only be honest and impartial but also have the reputation of being so.

(c) Asset Statement: It is often difficult to establish the allegation of corruption or lack of integrity in respect of a Govt. employee by proof of specific instances though he may have the ill-reputation of being a corrupt officer. In such circumstances,he may be subjected to disciplinary actions by showing that his assets are disproportionate to his known sources of income. [Nandalal Sharma V. Union of India (1973) SLR 63 (Delhi ].

Removal from service for failure to submit Asset Statement was not interfered by High Court (Kshetra Mohan Nath - Vs - Dist. Controller of Stores, AIR 1970 Cal. 131). A Govt. employee is liable to be dismissed for not disclosing full assets (State of Assam V Mohendra Kumar Das, AIR 1970 SC 1255).

Rule 4 : Rights of Govt. Employees :

(1) Every Govt. employee shall have the right to form associations/federative bodies of the employees;

(3) Every Govt. employee shall have full trade union rights including the right to strike. The right to strike shall however be subject to compliance with the provisions laid down in the Appendix

Note— The right to strike shall not however be available to the members of the W.B.C.S. (Executive & Judicial) and other allied executive, administrative, medical, engineering and educational services.

Right to strike is not a Fundamental Right but right to form associations is a Fundamental Right under Article 19 of the. Constitution but reasonable restrictions may be imposed.

(3) Every Govt. employee shall enjoy full democratic rights except being a member of any political party.

Explanation—These rights do not however include any which is prohibited under the law of the land; Employees Unions are not political parties even though political leaders may be associated with it.

(4) Any Govt. employee may, with prior intimation to authority and subject to the provision of Clause 7 of Rule 5 participate in a radio or television programme provided that nothing should be said in such programme which:

(a) Incite communal or parochial feelings.

(b) Goes against the unity and integrity of the country.

(5) Any Govt. employee may contribute any literary or scientific writing or write any letter to any newspaper or periodical subject to provision laid down in Clause 4

Rule 5: Obligations of a Govt. Employee :

i. No Govt. employee shall commit any misconduct as laid down in Section 5 of the Prevention of Corruption Act or take any illegal gratification or obtain valuable things without consideration or on inadequate consideration from persons concerned in his official dealings as detailed in Sec. 161 and 165 of the Indian Penal Code,

ii. No Govt. employee shall, except with prior sanction of the appointing authority acquire of dispose of any immovable property by lease, mortgage sale, gift or otherwise either in his own name or in the name of any member of his family where such transaction is conducted otherwise than though a regular or reputed dealer. The same condition, shall apply in the case of sale or purchase of movable propertyexceeding

Rs. 5,000/- in value. The said amount raised to Rs. 10,000/- w.e.f. 1.4.2001 as per GO No.: 3571-F dt. 30.3.2001.

Note— The movable or immovable properties owned by The members of the family are either acquired from their own funds or inherited will not come under the provisions of these rules.

iii. No Govt. employee shall lend money to or obtain loan from any member of the public, business house or trader with whom he has to deal in his official capacity either directly or indirectly. Co-op. Societies do not come under purview of this clause.

[Govt. employee may take loan from the Banks both nationalized and private for the purpose (a) marriage expenses of self/daughter/sister, (b) medical expenses of self/children, (c) educational expenses of self/children, (d) to purchase essential necessary consumer goods like Refrigerator, TV, Washing Machine, Motor Car, Two wheelers etc, (e) Expenses relating to Tours/excursion etc. (f) Expenses relating to Construction of house subject to condition that the Govt. employee concerned shall have to inform the appointing authority the amount of loan, purpose of loan and monthly installment of loan. It is clarified in this connection that this intimation will not however, absolve the Govt. employee for obtaining permission of his appointing authority as may be required at present for acquiring movable/immovable properties. It is specifically stated that the that the Govt. will not be guarantor in favour of the employee for the purpose of obtaining loan nor it will take any responsibility for recovery of said loan and interest thereon as per GO No. 3368-F dt. 26.3.2001.]

iv. No Govt. employee who has a wife/husband living shall contract another marriage without previously obtaining the dissolution of the first marriage notwithstanding such a second marriage being permissible under any persona! law of the community concerned.

v. No Govt. employee shall employ or engage any subordinate for any domestic, private or personal service.

vi. No Govt. employee shall use or permit private use of Govt. Vehicles, safe except for official business;

vii. Shall not leak out official secrets;

viii. (a) Shall not violate any law relating to intoxicating drinks or drugs, (b) consume or be under influence of any intoxicating drink or drug in course of his duty and /or in any public place.

ix. Shall not accept either directly or indirectly without prior sanction of appointing authority any gift of more than trifling value; gift in conformity will religious or social customs shall not come under purview of this clause.

x. Shall not, except with previous sanction of Govt, engage in trade, employment, business excepting honorary work of social and charitable nature or Co-op. Societies.

Misconduct under Prevention of Corruption Act

The foremost obligation upon the employees is that they shall not commit any misconduct as contemplated in Sec. 5 of the Act, which is punishable as a criminal offence apart from being a ground for disciplinary action. This Act has now been replaced by the Prevention of

Corruption Act, 1988 and misconduct or criminal misconduct has been defined under Sec. 13 of the Act.

Under the Hindu Marriage Act (Sec. 17), the Indian Christian Marriage Act {Sec. 60), the Special Marriage Act (Sec, 44), marrying a second time while the earlier spouse is living is void and is subjected to the penalties provided in Sec. 494 and Sec. 495 of I.P.C. Though bigamy is not prohibited in Mohammedan Law, it will be misconduct under these Conduct Rules. These rules do not contravene the provisions of the Constitution even though such marriage is permissible under personal law. Such a condition may be considered reasonable which the employer is competent to impose.

Gifts under social or religious customs do not come within the purview of this rule. Acceptance of dowry has however been prohibited with punishable offence under the Dowry Prohibition Act. It has been held that only those articles are dowry which are given or agreed to be given as regard or reason or motive for solemnization of marriage. Gift is distinguishable from illegal gratification.

Acknowledgement and Reference— Shri S. K. Ghosal's Compendium of Service Benefits and Obligations regarding Conduct Rules.

Rule7: Submission of petitions and memorials

(1) Any Govt. employee or a group of employees desiring ;o place a claim or seeking redress of their grievance in any matter connected with service condition shall ordinarily address the authority at the lowest level competent to deal with the matter or the authorities superior to the officer against whose order or action redress is being sought for. If no intimation is received within a fortnight or if the employees are not satisfied with the redress given by the said authority they may directly address higher authorities, including the Minister, seeking interview or intervention.

(2) A Govt. employee desiring to apply for any other position shall supply through the appointing authority who shall, unless there is any disciplinary proceedings pending against the applicant, forward the application to the addressee.

A Govt. employee may, if necessary, send an advance copy of the application to the addressee.

Rules 7A, 8 & 9

Nothing in these rules shall be construed to be in derogation of the 'provisions of the West Bengal Govt. Services Conduct Rules, 1959—which stand repealed subject to this provision. Under Rule 9 any violation of infringement of the rules shall be deemed to be a good and sufficient reason for imposing penalties under WBS (CCA) Rules 1971.

APPENDIX

Procedure to be followed before going to strike: No employee shall go on strike without completing the process of conciliation or negotiation and giving notice of at least 14 days and for public utility services thirty days.

Public Utility Services are:

(1) All Services directly connected with running of hospitals

(2) Fire Brigade—Operational services

(3) Drinking Water Supply—Operational services

(4) Milk Supply—Operational services

(5) Ration Shops

Matters over which Govt. employees can go on strike relate to conditions of services and work, welfare of the employees and improvement of efficiency of standard of work.

Process of Negotiation and Conciliation:

(1) Union/Association/Federative bodies will first exhaust discussion at the ministerial/departmental level.

(2) Their grievances will then be placed before the State Negotiating Body headed by an officer of the rank of Secretary under direct control of Chief Secretary. The Negotiating Body shall not take more than 30 days except with mutual agreement to settle the matter and send its recommendation to the appropriate authority. If the negotiation fails, strike notice may be served to the Appropriate Authority.

(3) On receipt of strike notice the Negotiating Body "may take further initiative to - solve the dispute. If it fails, the aggrieved party may go on strike.

• 1. When a strike commences and continues for more than a reasonable period, the Appropriate Authority may refer the matter to a Board of Arbitrators consisting of not more than three members—the majority of whom shall be other than Govt. employees. The Board will give its award within one month. After the matter is referred to the Board, the Government may prohibit continuance of the strike.

AS REGARDS JUDICIAL OFFICERS:

No. 5757 A

From:- Shri K.K. Basu,

Additional Registrar, High Court, Appellate side, Calcutta.

To : The district Judge, Murshidabad.

Dated Calcutta, the 30th April, 1990

Administrative Department.

Sub: - Observance of Rule 5(2) of the W.B.S. (Duties, rights and

             Obligation of Government Employees ) Rules, 1980 by the

             Judicial Officers regarding prior permission for purchase/sale

             of immovable property.

Sir,

I am directed to say that the Hon'ble High Court has decided that necessary sanction under Rule 5(2) of the .W.B.S. (Duties, Rights and Obligations of Government Employees) Rules, 1980 shall be obtained by the Judicial Officers from the High Court.

I am to request you to be so good as to circulate this to all the Judicial Officers under your Judgeship, for strict compliance.

Yours faithfully,

( K.K. Basu )

Additional Registrar