- (1.) 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.
(2.) 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.
(3.) 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.;