H.S. Bedi vs Govt. of Patiala and East Punjab States Union

Teja Singh, C.J.—This is a petition under Article 226 of the Constitution for issue of appropriate writs or directions to the Government of the Patiala and East Punjab States Union. The Petitioner was employed as an Executive Engineer in the Hydro-Electric and Water Works Division of the Public Works'' Department and the immediate cause of the petition was that the Government terminated his services on 3-10-1952 after giving him six months'' notice. The Petitioner''s case was that he was a permanent employee of the, Government and his removal from service was in contravention of the provisions of Article 311.

In order to be able to appreciate the Petitioner''s position it is necessary to refer briefly to a few facts and the correspondence that passed between him and the Government. Both sides are agreed that the Petitioner first joined service of the Government ON 23-2-1948 as an Executive Engineer in the Hydro-Electric and Water Works Division, Patiala on a five Years'' contract in the grade of Rs. 850-50-1000. Clause (10) of his contract provided that his services were liable to be dispensed with by six months'' notice on either side but he had special rights such as right to free medical treatment free house and a contribution by the Government towards the provident fund. On 29-1-1951 he received a letter from S.S. Singh Deputy Secretary to the Government (p. 10) saying that the terms of his contract were very liberal and were not "in conformity with the standard terms allowed to officers employed by the Government" and informing him that,

taking into consideration his academic qualifications and experience) in Electrical Engineering, the Chief Engineer and Secretary P.W.D. has been pleased to recommend your) case for integration on regular establishment at your present pay, in the scale of Rs. 600-40-1000 provided for the posts of executive engineers without any other concessions with effect from 1-1-1951

and further that he had been "directed to enquire from you if you are willing to be integrated on regular establishment as mentioned above". The Petitioner refused to accept the Government offer and on this he was informed by the Deputy Secretary vide his letter dated 17-5-1951 (p. 12) that the Government had decided to terminate his services in accordance with Clause 10 of the terms of his appointment & he was being served with 6 months'' notice with effect from 20-5-1951. It is mentioned in paras. 4 and 5 of the petition that on the receipt of the above letter, the Petitioner saw and explained the whole position to Shri M.R. Bhide who was the Minister-In-charge of the Department, that the Minister assured him that it was to his interest to accept the offer of integration made to him by the Government and that on this assurance the Petitioner agreed to the Government proposal and the notice given to him by the Deputy Secretary for termination of his services was cancelled.

In paras. 4 and 5 of the written statement put in by the learned Advocate-General on behalf of the respondent-Government they admitted the fact that the Petitioner saw the Minister on the receipt of the Deputy Secretary''s letter terminating his services, but as regards what transpired between the Petitioner and the Minister it was stated that the Government did not know anything about it. This much, however, was conceded that after the Petitioner had seen the Minister, the Deputy Secretary''s notice was cancelled. What happened later is of great importance. On 21-5-1951 the Deputy Secretary wrote to the Petitioner telling him: that it was not possible (for the Department?) to recommend to the Government that the terms already offered to him should be revised but adding at the same time that provided he accepted the original offer "in clear unequivocal terms without any reservation or ambiguity", his case could be recommended to the Government for reconsideration (p. 96). To this letter the Petitioner sent his reply on the 25-5-1951. The relevant part of the letter reads as below:

I am to invite a reference to para. 1 of my letter No. 7511/P dated 12-5-1951, in which I have already intimated that I elect to be integrated into the permanent cadre of the Department as desired in your letter No. D.O. P.W. 13 (PFG) E/50/159 dated 29-1-1951. I repeat again that I accept the terms offered to me in the above quoted letter, without any reservation or ambiguity. Paras 2,3 & 4 of my letter No. 7511/P dated 12-5-1951, are my submissions and requests and it is up to the Secretary P.W.D. & Government P.E.P.S.U. to accede to my request if they consider them to be just and fair. I will abide by the decision of the Government on my submissions made therein. (P. 95).

The reply of the Deputy Secretary of this letter is dated 7/10th August 1951 (p. 11). After referring to the Petitioner''s letter the Deputy Secretary said

I am directed to state that it has been decided by the Government to integrate you as Executive Engineer with effect from 1-8-1951 at Rs. 1000/- P.M. in the grade of 600-40-1000 without any other concession. From this data the terms of your contract will cease to exist and your appointment will be governed by the ordinary rules of the Government. Please intimate if you are willing to be integrated on regular establishment. Your acceptance or otherwise may please be communicated within 3 days of the receipt of this letter.

Even though the Petitioner had already given assurance to the Deputy Secretary that he unconditionally agreed to be integrated on the terms proposed by the Government, he repeated the assurance in his letter of 13-8-1951 (p. 14) and stated that he was "willing to be integrated on regular establishment with effect from 1-8-1951 at Rs. 1000/- P.M. as desired in your above quoted D.O." i.e "(Deputy Secretary''s letter dated 10-8-1951)".

Thereafter the Petitioner continued to serve the Government and nothing fresh happened till 10-3-1952, when the Deputy Secretary informed him that the Government had decided to terminate his services under Clause 10 of the, terms of his appointment and enclosed with his letter a formal notice of six months issued by the Home Department on 4-3-1952 (p. 16). The notice (p. 17) which purported to bear the signature of the Chief Secretary and was addressed to the Petitioner was in the following terms:

Government have decided to terminate your services with due notice provided under Clause 10 of your terms of appointment. Please take notice therefore, that after the lapse of six months from the date of this letter your services will stand terminated.

As was natural the Petitioner strongly objected to the termination of his services in accordance with one of the terms of the contract which according to him had been cancelled and among others he made a written representation to the Minister on 25-3-1952 (p. 15). Before the issue raised by the Petitioner in his representation could be finally settled an officer who was appointed to hold an enquiry against the Petitioner into the alleged irregularities etc. committed by him, served him with a charge-sheet on 12-5-1952 and he was asked to put in his explanation by 22-5-52. After the Petitioner had submitted his explanation the enquiry was started but before it could be concluded the Government passed the order of 3-10-1952 to the effect that the Petitioner''s services stood terminated on the fore-noon, of that day.

All the facts and the entire correspondence mentioned above are admitted by the Government, but the point upon which they joined issue with the Petitioner is that he was in fact integrated in their permanent service or was appointed an excutive engineer in the permanent cadre of the Public Works Department. The precise position taken up by them is given in para 8 of their written statement of which the following are the relevant parts:

(a) The Petitioner did not continue in service as a regular Government employee as he was never integrated in the permanent cadre by the Government. He could be permanently, integrated by the publication of the notification of integration in the gazette. No order of integration of the Petitioner as a regular servant was passed by the Government,

(b) On receipt of the willingness of the Petitioner to accept the offer to come on the regular establishment the Home Department who was the controlling authority was requested by the Public Works Department to examine the case and issue notification of the Government. No notification was issued nor any letter conveying final acceptance of the Government was issued to the Petitioner ....The Petitioner continued to be on his contract service and drew his pay and all other concessions according to the terms of his appointment till the day his services were terminated by the Government.

In view of what is stated in the respondent''s written statement there are three aspects of the Petitioner''s allegation that he became a permanent executive engineer in the electricity branch of the Public Works Department which require examination. The first is whether his appointment was made by the Government in fact. From the perusal of the correspondence that had taken place between the Petitioner and the Deputy Secretary and a part of which has been reproduced above, it is clear that it was the Government which was anxious that the Petitioner should give up his original contract and agree to be integrated as a permanent man and the reason for this was that in the opinion of the Government the contract gave the Petitioner certain Concussions to which permanent employees of the Public Works Department were not entitled. To start with the Petitioner, was unwilling to accept the Govt. suggestion, but he was persuaded to do so by the then Minister. The correspondence also shows that on the Petitioner''s intimating to the Deputy Secretary that he was willing to abide by the offer made to him by the Government, Government decided to integrate him in the permanent service with effect from 1-8-1951 and from that day the Petitioner''s previous contract ceased to exist and his appointment was governed by the ordinary rules of the Government. The letter of 7-8-1951 that the Deputy Secretary addressed to the Petitioner conveying the Government decision was not conditional, i.e. it did not depend upon the Petitioner''s informing the Government that the said decision was acceptable to him and the reason for this obviously was that the Petitioner had already written to the Deputy Secretary vide his letter of 25-5-1951 (p. 5) that he accepted the terms offered to him by the Deputy Secretary without any reservation etc. It is true that in the above mentioned letter the Deputy Secretary asked the Petitioner to intimate to him if he was willing to be integrated on regular establishment and asked him to communicate his acceptance within three days of the receipt of the letter. My opinion is that it was a case of taking abundant precaution, but even if it be conceded for a moment that the Government decision was conditional on the Petitioner''s acceptance, it is not denied that the acceptance was communicated to the Deputy Secretary within the time fixed by him. A pointed reference to this letter of the Deputy Secretary was made in para. 6 of the petition, but in the written statement that the Government put in they neither denied the genuineness of the letter nor did they take up the plea that the statement of fact contained in the letter that "Government had decided to integrate you as Executive Engineer with effect from 1-8-1951 " was not correct. These are the exact words used in para. 6 of the statement:

Para. 6 is so far denied that Government finally integrated him by the letter dated 10-8-1951. A query was made from the Petitioner by S. Sohan Singh Deputy Secretary, P.W.D. by letter No. P.W. 13-PFG/E-50A 1307, if the Petitioner was willing to work on the terms mentioned in the fetter. No order of the Government directing Deputy Secretary, P.W.D. to issue such a letter is available. It will be produced after enquiry if there is any.

It will be seen that the Government did not deny the correctness of the entire para. 6 of the petition; they denied only that part of it which stated that they finally integrated the Petitioner by virtue of the letter of 10-8-1951. This means that they did not accept the interpretation that the Petitioner placed upon the letter but as regards the statement of fact contained in the letter they had not a word to say about it. According to the well-known construction of pleadings that what is not expressly denied should be taken to be impliedly admitted, I am of the opinion that the Government should be taken to have accepted as correct what was stated in the letter, i.e. a decision regarding the permanent integration of the Petitioner with effect, from 1-8-1951 had been taken by them. Then reading the first sentence of the statement with the second it also appears to me that what the Government meant was that through they had decided to take the Petitioner into permanent service, the decision could not be given effect to and hence it could not be regarded as final until they knew that it was acceptable to the Petitioner. If that be so since the Petitioner did give his acceptance the decision did become final and operative at least from the time the acceptance was in the hands of the Government. As regards the last two sentences of the Government written statement that no letter of the Government directing the Deputy Secretary to issue "such a letter" was available and that it would be produced after the enquiry if there was any, I cannot understand what they exactly meant. I have already observed that the existence of the decision regarding the Petitioner''s integration was not denied by the Government and as I look at the matter the decision had been taken. If the last two sentences of the written statement were meant to convey that the decision was secret and it was not meant to be communicated to the Petitioner, it was their duty to state so in clear words. I may add here that four months after the Government had put in their written statement, i.e. on 17-4-1953 their counsel produced an affidavit of the Deputy Secretary denying that the Government had finally integrated the Petitioner, but I refused to allow that affidavit to be placed on the record by my order dated 24-4-1953.

The second aspect is whether the decision of the Government was vitiated by any legal or technical defect and accordingly the Petitioner could not take advantage of it. First of all it was urged by the learned Counsel for the State that according to the law and rules before the Petitioner could be taken in permanent service of the Government it was necessary for the Government, to consult the Public Service Commission. From the material that has been placed before me I am not in a position to say whether Public Service Commission was consulted by the Government before the decision for the Petitioner''s integration was taken or not. Assuming for the sake of argument that the Public Service Commission was not consulted, responsibility for this omission must lie on the shoulders of the Government and I cannot understand why the Petitioner should suffer for it.. As I read the words of Clause (3) of Article 320 which lays down that the Union Public Service Commission or the State Public Service Commission shall be consulted, inter alia, on all matters relating to methods of recruitment to civil services, they appear to me to be directory and learned Counsel for the State was not able to cite a single authority in support of the proposition that an appointment made by a State without consulting the Public Service Commission is altogether null and void.

Then it was urged by the learned Counsel for the State that the Petitioner''s appointment as permanent Executive Engineer could not take effect unless a notification regarding the appointment was published in the Government Gazette in accordance with the provisions of Article 166 of the Constitution. In my opinion, there is no force in this contention either, because the provisions of Article 166 are also directory and the failure on the part of the State Government to issue a proper order in the name of the Governor and in the case of a Part B State in the name of the Rajpramukh, or to notify that order by publishing it in the Government Gazette does not affect the validity of the order. This view is supported by the weighty decision of the Supreme Court in- Dattatreya Moreshwar Pangarkar Vs. The State of Bombay and Others, in which the scope of Article 166 was discussed. While referring to the points urged before their Lordships of the Supreme Court this is what Dass J. observed:

It is at this stage that learned Counsel for the Petitioner passes on to Article 166 of the Constitution and contends that all executive action of the Government of a State must be expressed and authenticated in the manner therein provided. The learned Attorney-General points that there is a distinction between the taking of an executive decision and giving formal expression to the decision so taken. Usually executive decision is taken on the office files by way of noting or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression the whole governmental machinery, he contends, will be brought to a standstill ....Learned Attorney-General then falls back upon the plea that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, for the provisions of that Article, like their counterpart in the Government of India Act, are merely directory and not mandatory as held in ''J.K. Gas Plant Manufacturing Co., (Rampur) v. Emperor'' AIR 1947 FC 38 (B). In my opinion, this contention of the learned Attorney-General must prevail. It is well-settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the, practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.

Later on his Lordship observed:

Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of this Article are not complied with the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself.

Lastly, it was urged by the learned Counsel for the State that since appointment of the Petitioner by the Government as a permanent Executive Engineer amounted to a contract it should have been made in accordance with the provisions of Article 299, and this not having been done the appointment cannot be recognised. I am prepared to concede that when a Government offers a job to a person and the latter accepts it or when a person applies for a job and the Government agrees to appoint him on that job, there comes into existence a sort of agreement between the Government on one hand and the person concerned on the other, but I am not convinced whether such an agreement would come within the purview of the term "contract" used in Article 299. The most important thing to note in this connection is that all persons employed by a State or the Union, except those appointed under Clause (2) of Article 310, hold office during the pleasure of the President or the Governor, as the case may be, and not by virtue of any kind of contract. This is definitely laid down in Clause (1) which says

Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union, or of an all-India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor or, as the case may be, the Rajpramukh of the State.

Then taking into consideration the fact that Article 299 forms part of Part XII which relates to finance, property, contract and suits, I am inclined to think that the operation of Article 299 is limited to contracts relating to property, etc and in case of persons who join regular service of the Union or a State it is not necessary at all that they should enter into any kind of contract. The object of a contract is to regulate the mutual rights and duties of the parties and as regards persons who are in regular service of a Union or a State their rights and duties are laid down in the Constitution and the rules of service framed by the Government under the powers given to them by the Constitution.

The third aspect is whether there was anything in the Petitioner''s conduct which can debar him from taking advantage of the Government decision. The Petitioner remained in service till 3-10-1952, that is to say, for more than one year after the date with effect from which he was integrated as permanent Executive Engineer according to the Deputy Secretary''s Letter of 10-8-1951. It was urged on behalf of the Government that during all this time the Petitioner continued drawing his salary and taking advantage of all the concessions to which he was entitled according to his original contract of service and counsel argued that this by itself showed that the Petitioner did not become a permanent employee. In view of the fact that even after his permanent integration the Petitioner was to draw the same pay which he was getting under the terms of his original contract I do not think there was anything wrong in the Petitioner''s drawing the pay that he did but the perusal of the documents, including the Petitioner''s salary bills, produced by the Government showed that the Petitioner also enjoyed some other concessions to which he was entitled by virtue of the original contract. Petitioner''s learned Counsel explained that this was due to the reason that the audit Department did not issue a fresh salary slip and unless this was done the treasury would not acknowledge the new terms upon which the Petitioner was integrated. The explanation does not satisfy me, because there is nothing on record to show that the Petitioner made any effort to approach the Treasury or the Audit Department for the recognition of his new terms and they refused to do so. Probably the real explanation is that the Petitioner wanted to grab as much as he could. With all this I do not think that his conduct could change the status that he had come to acquire by virtue of the decision of the Government communicated to him by the Deputy Secretary, particularly so when it was not even urged on behalf of the Government that the conduct amounted to estoppel.

It appears to me that at one time Government were also of the view that the Petitioner had become a permanent employee of the State and he was entitled to all the benefits of Article 311. As mentioned above, they issued a notice to him on 10-3-1952 saying that his services were being terminated under Clause (x) of the terms of his original contract. The Petitioner at once protested and informed the Government that the contract had been cancelled and he had been integrated as a permanent Executive Engineer. Government instead of pursuing the matter served the Petitioner with a charge-sheet and appointed an Inquiry Officer to conduct the inquiry against him. It was after the inquiry had gone on for sometime that the Government again thought of availing of the notice that they had given the Petitioner and terminated his services with effect from, 3-10-1952. Why the Government could not wait for six months after giving the notice and why if the Petitioner had not in their opinion become a permanent employee of the State, they considered it necessary to institute an inquiry against him is not explained. It is also not explained why Government did not allow the inquiry to conclude.

The Petitioner''s learned Counsel suggested that the action of the Government was ''mala fide'' and though they knew in their heart of hearts that the Petitioner could not be removed from service, except under the provision of Article 311, they brought his original contract into service when they found that the inquiry, was bound to fail. It is not possible for me to hold positively that this contention is well founded, but since the explanation given-by the learned Counsel for the State for the contradictory positions that the Government were adopting from time to time is not convincing, I cannot help saying that the contention is not wholly devoid of force. For all these reasons I hold that the Petitioner''s allegation that he became a permanent Executive Engineer of the State and that he could not be removed from service on six months'' notice has been fully established

It was also urged by the State counsel that a petition under Article 226 was not a pro per remedy in the present case and the Petitioner should be left to vindicate his position and sue the Government in a regular Civil Court. Since I am of the opinion that the procedure adopted by the Government was altogether illegal and violated the fundamental rights to which the Petitioner was entitled under Article 311, it would not be right to throw out this petition because it is open to him to file a Civil suit. It has been held in a large number of cases by this Court as well as by other High Courts that the existence of an alternate remedy is not always a bar to a petition for appropriate writs and each case has to be decided on its particular facts.

In the result, I allow the petition to the-extent that I declare the Government order dated 2-10-52 terminating the Petitioner''s services with effect from 3-10-52 illegal and issue an order prohibiting them from giving effect to it. I further declare that the Petitioner continues to occupy the position of Executive Engineer in the Hydro-Electric and Water Works Division of the Public Works'' Department. Since the Petitioner continued to enjoy some of the concessions granted to him by his original contract notwithstanding the fact that that contract was cancelled and he had become a permanent employee of the-State, I order that he shall bear his own costs.