Madan Mohan Goel vs State of Haryana

A.D. Koshal, J.—In the year 1971 the Haryana Public Service Commission, through their advertisement No. R.G. 313/69 (hereinafter referred to as the advertisement), invited applications from persons desirous of being appointed to a temporary post of Chief Electrical Inspector in the Irrigation and Power Department of the Government of Haryana. Paragraphs 4 and 5 of the advertisement stated:

The post is temporary but is likely to continue. It belongs to Class I. It is pensionable. The incumbent of the post will be eligible to subscribe to the general provident fund according to State Government Rules.

The period of probation is two years for persons recruited direct and one year for those already in Government service. The appointment can he terminated according to civil service rules.

The Petitioner, who was then serving the Haryana State Electricity Board as an Executive Engineer, applied for the job, was selected for the same and was appointed thereto through a letter dated the 19th of November, 1971 (hereinafter called ''the appointment letter'') which made no reference to the advertisement or to any of its contents and, on the other hand, detailed the terms and conditions on which the appointment was being made. The tenure of the post was thus described in paragraph 1 of the appointment letter:

Tenure of Post:

(i) The appointment will be temporary, but likely to continue.

(ii) The service will be terminable on one month''s notice in writing by Government to you/you to Government, should Government desire to terminate your service/you leave service, without notice, Government/you will have to pay you/to Government an amount equal to your one month''s emoluments in lieu of one month''s notice, or the amount equal to your emoluments for the period by which the notice falls short of one month. In case of misconduct, inefficiency, neglect or failure of duty, the service shall be terminable after giving you an opportunity to represent in the matter.

The Petitioner started working as the Chief Electrical Inspector under the appointment letter. By an order dated the 19th of April, 1972, the Governor of Haryana, converted the temporary post of Chief Electrical Inspector into a permanent one. However, no order was passed for any change in the tenure of the Petitioner in relation to that post. While working in the post, the Petitioner received references for arbitration between the Haryana State Electricity Board and the consumers served by it. He decided them against payment of fees to which exception was taken on behalf of the Government who called his explanation which was furnished through a memorandum dated the 18th of December, 1972, but was found unacceptable. On the 5th of March, 1973, the Government informed him that his performance during the period spent on probation had not been satisfactory and that, therefore, he stood reverted to his parent Department, i.e., the Haryana State Electricity Board in which he had a lien. This action of the Government was challenged by the Petitioner in proceedings under Article 226 of the Constitution of India which failed as infructuous after the Advocate General for the State of Haryana had made a statement that the order dated the 5th of March, 1973, was being withdrawn. Later on, the Government charged the Petitioner with misconduct consisting of the acceptance by him of fees relating to arbitration work and asked him to show cause under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 as to why his services as Chief Electrical Inspector should not be terminated. The Petitioner submitted his explanation which was again found unsatisfactory, with the result that his services were terminated a second time through an order dated the 15th of May, 1974, which the Petitioner challenged in proceedings under Article 226 of the Constitution of India seeking issuance of a writ of certiorari. His petition was dismissed by Tuli, J., on the 23rd of October, 1974, by an order which is attacked in this appeal filed under Clause 10 of the Letters Patent. Tuli, J., held that the Petitioner had contravened the relevant rules in carrying out arbitration work against payment of fees without prior permission of the competent authority and that the Government was, therefore, justified in reverting the Petitioner to his parent Department on the ground that he had not satisfactorily completed the period of his probation.

The main point stressed by learned Counsel for the Petitioner before us is that the contents of the advertisement did not form a part of the appoinment letter, that the terms and conditions of service by which the Petitioner was governed were comprehensively laid down in the appointment letter independently of the advertisement, that they did not envisage any period of probation which, the Petitioner had to go through and that, therefore, his services were liable to termination only on the Government giving him a month''s notice which had admittedly not been given. After hearing learned Counsel for the parties, we find the contention to be unexceptionable. As already stated, the appointment letter did not make any reference at all to the advertisement. It also did not advert to any period of probation such as was mentioned in the advertisement. On the other hand, it stated in explicit terms that the Petitioner was being offered the post of Chief Electrical Inspector "on the following terms and conditions of service". Had a period of probation been envisaged for the Petitioner in the new post, there is no reason why the same would not have been specifically mentioned in the appointment letter just as other conditions of service like the pay scale which appeared in the advertisement were repeated in the appointment letter. In our opinion, the appointment letter contained a comprehensive statement of the terms and conditions of the service of the Petitioner and, in the circumstances of the case, the advertisement cannot be regarded as a part thereof. In this connection we may also note that the giving of a month''s notice on either side would normally be a condition which would rule out a period of probation to be undergone by the appointee. This is not to say that the period of probation and a notice of the type mentioned cannot co-exist, but if that is what is intended, it must be made specific mention of. The learned Single Judge who acted upon the advertisement in holding that the Petitioner had not satisfactorily completed the period of his probation, took the advertisement for granted as a document governing the conditions of the service of the Petitioner without deciding that the appointment letter was issued subject to its contents and that is the error into which, in our opinion, he fell. In this connection he appears to have been influenced mainly by the fact that both the Petitioner and the State Government had in the correspondence which took place between them subsequent to the Petitioner''s appointment, been referring to him as being on probation but that fact is irrelevant to the determination of the question whether the Petitioner actually was on probation which is a matter of interpretation of the appointment letter, and of such interpretation only, so that although antecedent circumstances may perhaps throw light on the intention of the parties, subsequent events would not be germane to the issue.

Faced with the above situation, learned Counsel for the State contended that the impugned order was valid even if the Petitioner was not on probation, inasmuch as he had been found guilty of misconduct and his services had been terminated in accordance with the last sentence of paragraph 1 of the appointment letter. That sentence states:

In case of misconduct, inefficiency, neglect or failure of duty, the service shall be terminable after giving you an opportunity to represent in the matter.

We are asked to interpret this sentence as meaning that all that was necessary for visiting the Petitioner with the punishment of the termination of his services was that he should be given a notice of the misconduct with which he was charged, that he should be asked to submit his explanation and that such explanation should be considered and found to be unsatisfactory. We do not think that the sentence was either intended to rule out a regular enquiry into any charges of misconduct which might be levelled against the Petitioner or that it means any such thing. It does envisage an opportunity to the Petitioner to represent his case and such opportunity would be an empty formality if he is not given a chance to demolish the charges levelled against him either by showing that the evidence relied upon by the Government in support thereof was false and worthless or by contradicting the same independently. Such opportunity must be a real opportunity so that it would be one akin to that envisaged by Clause (2) of Article 311 of the Constitution of India. This is the interpretation we would have placed on the sentence even if it were ambiguous, for, the presumption would be that it was intended to be in conformity with the law and not to contravene it. In fact, learned Counsel for the State does not urge that it derogated from the constitutional provision above cited.

As the Petitioner was not given a month''s notice or a month''s salary in accordance with the terms and conditions of his service as contained in the appointment letter and as no real opportunity to defend himself was afforded to him, the impugned order must be held to be illegal. Accordingly the appeal succeeds and is accepted and the impugned order is quashed. The parties are, however, left to bear their own costs.