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PETITIONER: V. S. MENON

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 22/11/1962

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1160            1963 SCR  Supl. (2)  55

ACT: Public  Servant-Disciplinary action- Subversive  activities- charge of associating with communists- compulsory retirement Legality  of-writ  Petition-If  maintainable-Civil  Services (Safeguarding  of  National  Security)  Rules,  1949.  r  3- Constitution of India, Arts. 226, 311.

HEADNOTE: The  appellant,  a public servant, was charged under  r.  3, Civil  Services,(Safeguarding of National  Security)  Rules, 1949, for associating with communists and others engaged  in subversive  activities.   After enquiry, an order  was  made compulsorily retiring the appellant from service.  He  filed a writ petition before the High Court but it, was dismissed. He   appellant  contended  that  the  order  of   compulsory retirement   was  illegal  and  that  the  High  Court   had jurisdiction to quash the same. Held,  that  the  charge against the  appellant  was  not  a charge, under, r. 3 and accordingly the order of  compulsory retirement  was illegal.  The rule  contemplated  compulsory retirement was illegal. The rule contemplated compulsory 405 retirement in cases where the Public servant was engaged  or suspected  to  be engaged in subversive activities,  or  was associated  with  others  in  subversive  activities.    The appellant  was  Only alleged to have, been  associated  with others who were engaged in subversive activities, but it was not  alleged  that  he  had taken  any  part  in  subversive activities  by   himself or  along  with  others.   Taking interest in political activities of the communist party  did not  amount to taking part in subversive activities so  long as the communist party was reorganised-political  party  and was not banned. Held, further, that the impugned order. could be quashed  on a petition under Art. 226.  The premature termination of the service of the appellant, which was not justifiable under r. 3  amounted  to removal from service by way of  penalty  and attracted the application of Art. 311. P. Balakotaiah v. TheUnion, of; India,, [1958] S.  C. R.

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1052, distinguished.

JUDGMENT: CIVIL,  APPELLATE JURISDICTION : Civil Appeal No. 83 of  62. Appeal  by special leave from the judgment and  order  dated October  6, 1960, of the Punjab High Court (Circuit  Bench): Delhi in L.P. A. No. 23-D of 1957. R.V.  S. Mani, H. C. Mital and P. Kesava Pillai, for  the appellant. C. K. Daphtary, Solicitor General of India, R.    H. Dhebar, P. D. Meson, for the respondents. 1962.  November 22.  The judgment of the Court was delivered by SINHA,  C.  J.-This  appeal by  special  leave  is  directed against the judgment and order of the, Punjab High Court, dated  October  6,  1960, dismissing  Letter  Patent  Appeal from,  the judgment of a single Judge of that  Court,  dated September 10, 1957, dismissing the appellant’s writ petition under Art. 226 of   the   Constituton.    There   are    two respondents,  namely,  (I.)  the  Union  of  India  and  (2) Director General, Posts and Telegraphs, New Delhi. 406 This case has had a chequered history as will appear from the following facts.  The appellant was appointed in June 1943 as an Engineering Supervisor by the      second respondent.  In January 1,949, he was      suspended    from service  on account of certain activities of his which  were considered ’to be objectionable.  He was duly served with  a notice  to cause, and his case was in due course  considered by  the  Committee of Advisers, who recommended that  he  be retained in  service.  In pursuance of the recommendation of the  Advisory Committee, the appellant was  reinstated  with effect  from May 26, 1951.  After passing  his  departmental examination   in  1952,  the  appellant  was  appointed   as officiating Sub-Divisional  Officer, Telegraphs.  While  he was so employed at Nagpur, he was served with a notice dated November  3, 1952, from the office of the  Director-General, Posts and Telegraphs, under the provisions of rr. 3 and 4 of Civil  Services (Safeguarding of National  Security)  Rules, 1949-which  hereinafter will be referred to as the Rules  in the following terms "No. Sta 98-10/52              New Delhi, the 3rd November, 1952. Whereas  in  the  opinion of the  "Competent  Authority"  as defined  in  rule 2 of the Civil Services  (Safeguarding  of National  Security)  Rules, 1949. (who in your case  is  the Director General) there are reasonable grounds for believing that after your reinstatement in service on May 26, 1951 you have   continued  to  associate  with  others   engaged   in subversive  activities in such a manner as to  raise  doubts about  your reliability and consequently it is  proposed  to take  action  for your compulsory  retirement  from  service under  rule  3  of the said rules.  The  following  are  the allegations 407 against you:-- "Soon   after  your  arrival  in  ’Nagpur  important   local communists were reported to have contacted you and I  during the  discussions  you  were  reported  to  have   interested yourself  in the political activities of the Communist party               and other political organisations and   groups               in  Nagpur.   You  are  also  reported  to  be               actively,continuing your association with Shri

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             B.N.  Mukherjee   and  other  prominent  local               Communists." 2.   You are hereby required to proceed on such leave as may be admissible to you with effect from November 15, 1952. 3.     You are hereby required to’ state within 14  days  of the  receipt of this notice whether you accept or  deny  the accuracy  of  the above allegations.  If you. do  not  reply within  that period, it will be’ assumed that you admit  the allegations. 4.   In  either case, you may within the same period  submit any representation you wish to make as to why you should not be   compulsorily retired from service under the said  Rules copy attached). 5.   If after considering your representation the  competent authority  decides that’ no further action should  be  taken against you, You will be informed accordingly,, 6.   If after considering your representation the  competent authority  considers that there are sufficient  grounds  for taking  further., action, the materials on  record  together with your 408 representation will be referred to the Committee of Advisers set up by the Government of India for this purpose. 7.   You  are further asked to state whether you wish to  be ’heard  in  person  by-  the  Director  General  or  by  the Committee of Advisers before orders are passed on your case. 8.   If  you send no reply within 14 days of the receipt  of this  notice orders will be passed on your case without  any further reference to you. Sd/ Director General, Posts and Telegrapbs, New Delhi." On November 17, 1952, the appellant submitted his answer  to the  show-cause  notice.   The  answer  runs  into  9  pages typescript to the effect that the charge was value. baseless and  without  foundation,  and  requesting  for  a  personal hearing before the second respondent, as well as before  the Committee of Advisers.  The appellant submitted a letter  on January  23, 1953, requesting that "at the time of the  oral hearing  all the evidence on which the charges mentioned  in your  letter  No.  STA 98-10/52 dated  3.11.1952  have  been framed",   may  be  made  available  to  him  so   that   on scrutinising them he might prove his innocence.  On  January 28,  1953, the second respondent examined the  appellant  in person,  and  thereafter on May 19, 1953, he  was  served  a second show-cause notice, which is in these terms "Memo No. STA-98-10/52/SEA Dated New Delhi, the 19th May, 1953. Shri  V.  S.  Menon,  Sub-divisional  Officer,   Telegraphs, Nagpur, was called upon to answer  409 the following charges:-- "Soon   after  your  arrival  in  Nagpur   important   local Communists  were reported to have contacted you: and  during the discussion you were reported to have interested yourself in the political  activities  of  the  Communist  party  and               other political organisation and Nagpur.   You               are also reported continuing your  association               groups,  in  to be actively with  Shri  B.  N.               Mukherjee  and other’ prominent  local  Commu-               nists. 2.   The  Committee of Advisers have considered the  defence submitted by Shri V. S. Menon and the record of the personal hearing and are provisionally of the opinion that sufficient

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grounds  exist  to bring home these charges to  Shri  Menon, justifying his compulsory retirement from service under Rule 3  of the Civil Services (Safeguarding of National Security)               Rules, 1949. 3.   Shri  Menon  is, therefore, called upon to  show  cause within  15  days of the receipt of this Memorandum,  why  he should not be compulsorily retired from service. 4.   A copy of the record of personal hearing granted to him is forwarded herewith. 5.   If  Shri Menon fails to submit his defence  within  the period stipulated above, orders will be passed ex Parte.                             Sd/.                     Director General." On  August 28, 1953, the following order was passed  against him: "Memorandum  No.  ST- A. 98-10/52/SEA Dated New  Delhi,  the 28th Aug. 53. 410 In  the  office Memo"’ of the Director Genera),,  Posts  and Telegraphs  No. STA. 98-10/52 dated tile 3rd November  1952, Shri  V.  S.  Menon, Officiating  Sub  ]Divisional,  Officer Telegraphs, Nagpur,was           informed of the grounds  on which  it  is proposed to take I action for  his  compulsory retirement from service under Rule, 3 of the Civil  Services               (Safeguarding  of  National  Security)  Rules,               1949,  and  was  called  upon  to  submit  any               representation  he  wished to make as  to  why               should   not  be  compulsorily  retired   from               service  under  the said  rules.   Shri  Menon               submitted his statement in defence on November               17, 1952, in which he also expressed a desire for a personal hearing by the Director General.  He was  accordingly  granted an oral hearing  by  the  Director General on January 28, 1953. (2) The Committee of Advisers having considered the  defence submitted      by  Shri  V. S. Menon, and the record  of  the               personal hearing, were    of the opinion  that               sufficient grounds exist  justifying      Shri               Menon’s  compulsory  retirement  from  service               under  Rule 3 of the said rules.   Shri  Menon               was thereupon called upon in Director General,               Posts  and I Telegraphs Memo No. S T  A."  98-               10/52- SEA, dated May 19., 1953, to show cause               why he should not be compulsorily retired from               service.     Shri    Menon    submitted    his               representation   on  June   18,  1953.    This               representation has also been considered. 3.  The  competent  authority  (who  in  this  case  is  the               Director, General, Posts and Telegraphs) after               careful  consideration  of this case   of  the               opinion that Shri V. S. Menon has been associ-               ated  with others in subversive activities  in               such  a manner, as to raise doubts  about  his               reliability.,  411 and is satisfied that his retention in the public service is prejudicial to national security.  Shri V.   S.   Menon   is hereby informed that the competentauthority has accordingly decided, with the prior approval  of the President      that Shri V. S. Menon should be compulsorily retired from service               in accordance with the provisions of the  Rule               3  of Civil Service (safeguarding of  National               Security) Rules, 1949. (H. L. jerath)

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Director General, Post and Telegraphs" The  appellant moved the erstwhile High Court of  Judicature at Nagpur under Art. 226 of the Constitution.  ’The case was heard  by  a  Full  Bench  of  three  judges  consisting  of Kaushalendra  Rao, V. R. Sen and Bhutt, JJ.  The  Court  was agreed  as  to the order to be passsed ,  namely,  that  the petition should be dismissed on th ground that no writ could issue  against  the  respondents  though  the  judges   were Kaushalendara  Rao,  J.- was of the view that  even  on  not agreed, on the merits of the controversy merits the  Court could not grant any relief, whereas Sen and Bhutt, JJ., took the  view  that  it  was not covered  by  Art.  310  of  the Constitution,  and  that the Allegations in  the  initial  , show-cause  notice,  were vague, nor did they  disclose  any personal  association on the part of the Appellant  in  any subversive  activities,  and that, therefore, there  was  no compliance with r. 4 of the Rules. As  the petition under Art. 226 of the Constitution  in  the Nagpur  High Court proved infructuous, the  appellant  moved the  Circuit Bench of the Punjab High Court at  Delhi  under the  same  Article.   The petition was heard  by  a  learned Single  judge  (Falshaw, J.) who by his judgment  and  order dated September 10, 1957, disagreeing with the views of  the majority of judges of the Nagpur High Court 412 dismissed the petition holding that the charge laid  against the appellant should not be too strictly construed, and that his compulsory retirement under the Rules did not amount  to dismissal  or  removal from service under Art.  311  of  the Constitution.   From  the  judgment of  the  learned  Single judge,  the  appellant preferred a  Letters  Patent  appeal, which  was heard by a Division Bench consisting  of  Khosla, C.J.,  and  Shamsher  Bahadur, J. The  Bench  dismissed  the appeal, though in their view also the charge-sheet submitted against the Petitioner was "not entirely in accordance  with the  terms  of  rule 3".  In their  view,  the  enquiry  was proper, and reasonable opportunity had been, afforded to the petitioner  to show cause against the proposed action.   The appellant  moved  this  Court for special  leave  which  was granted on February 21, 1961, and that is how the matter  is before us. Learned  Counsel  for the appellant has raised a  number  of contentions’  namely,  that (1) the Rules are  a  colourable exercise  of the power conferred on the Governor-General  to make rules under s. 241 (2). of the Government of India Act, 1935, because the purpose of the Rules is not regulation  of conditions of service; (2) the Rules violate s. 241 (3) (c): (3)  the  Rules,  do  not  provide  for  or  authorise   the constitution  of  Al Committee of Advisors; (4)  the  charge against  the petitioner is outside the provisions of  r.  3, which  requires the participation of the  officer  proceeded against  in  subversive activities and  not,his  association with persons who are concerned with such activities; (5) the appellant  was not given reasonable opportunity  of  showing cause  because,  in the first instance, the charge  and  the allegations were vague without any particulars, and secondly because the ",competent authority’ withheld all evidence, on the  ground that it was contained in secret  documents;  (6) the  appellant was not given any opportunity of  hearing  by the Committee of Advisors, for which he                             413 had made I a special request; and (7) compulsory  retirement means premature termination of service, and is’,  therefore, a  special  penalty  which could not  be  inflicted  without

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appropriate enquiry and proper opportunity to show cause. It  is not necessary to consider all the grounds  of  attack raised on behalf of, the appellant because, in our  opinion, the  appeal  must  succeed on the  ground  that  the  charge against  the appellant, as quoted above, is that  "you  have continued to associate with others is engaged in  subversive activities",  which  is not the gravamen of  the  charge  as contemplated by r. 3, which is in these terms: "3,  A  Government  servant  who,  in  the  opinion  of  the Competent authority is engaged in or is reasonably suspected to be engaged in subversive activities or is associated with               others  in  subversive activities  in  such  a               manner   as   to  raise   doubts   about   his               reliability  may be compulsorily retired  from               service; Provided that a Government servant shall not be so  retired, unless  the  competent  authority  is  satisfied  that   his retention  in the public service is prejudicial to  national security and unless. where the competent authority is a head of a department, the prior approval of the Governor  General has been obtained." That  rule contemplate,% compulsory retirement from  service of  a  government servant who (a) is engaged  in  subversive activities, or (b) is reasonably suspected to be engaged  in subversive activities, or (c) is associated with others in subversive   activities.    If  any  one  of   those   three alternative  conditions  is fulfilled,  then  the  competent authority  has also to be satisfied that the manner  of  his activities is such as to raise doubts about his reliability, as  also  that  his  retention  in  the  public  service  is prejudicial to 414 national  security.   And, finally, where such an  order  is passed by a competent authority in his capacity as the  head of  department, the prior approval of  the  Governor-General (now the President) has to be’ obtained.  It is manifest  on the  charge,,  as framed against appellant that he  was  not even alleged  to  have been engaged or  to  be  reasonably suspected  to have been engaged in subversive activities  or to be engaged in such activities in association with others. It  was  only alleged against him that  he  associated  with others  who were engaged in subversive activities.  That  is not  a  charge which could be subtained under r. 3.  As  the rule  is  of a penal character, it has to be  very  strictly construed.  If the appellant was even suspected to have been engaged in subversive activities, the charge could have been in  those  terms.  But it is not even, alleged that  he  was suspected  to be engaged in subversive activities, far  less to have been engaged in such activities either by himself or in,  association  with others.  As-the  charge  against  the appellant did not strictly come within the purview of r.  3, there was no basis for the procedure adopted in pursuance of r. 4. It is not, therefore, necessary to pursue the  enquiry as  to whether the procedure actually adopted complied  with that laid down in r. 4. Apart  from  the initial serious defect in the  charge  laid against the appellant, even in the allegations made  against him  it  was  only said that after  his  arrival  in  Nagpur important  local communists were reported to have  contacted him,  and that he was interested in political activities  of the  Communist party and other political  organisations  and groups  in Nagpur, and finally, that he was reported  to  be continuing  his association with Shri B Mukherjee and  other prominent  local  communists.  But no where it  is,  alleged that  the  appellant  had  taken  any  part  in   subversive

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activities  by himself or alongwith others with whom  be  is said to have been associated 415, Taking interest in a political activities of, the, Communist party  would  not  amount  to  taking  part  in   subversive activities so long as the Communist party continued to be  a recognised  political.   Organisation, which  has  not  been banned.   It  cannot be asserted that,  Simply  taking  with members  of  the Communist party or  associating  with  such members would amount to engaging, in subversive, activities. Subversive activity, in order to bring  the person  within the purview of the, rule mustamount  to  actively  pursuing such activities as are calculated to subvert the  government established by law, No such allegations appear to have  been made against the appellant. The question remains whether in the facts and  circumstances disclosed  in  this  case,  the  appellant  has,  any   just grievance  which could be remedied by the, High Court  under Art.  226.  The, judgment, under appeal has taken  the  view that this case is governed by the decision of this Court. in P.   Balakotaiah v. The Union of India (1).  That wascase in  which the services of the appellants who  were,  railway servants  had  been  terminated  for  reasons  of   national security under r. 3 of the Railway; Service (Safeguarding of National  Security)  Rules, 1949.  Rule 3 in that  case  was practically in the same terms as r. 3 in this case.  Rule  3 in  that case was held to be constitutionally valid  as  not being repugnant to Art. 14 of the Constitution.  But, in our opinion,  the  High Court was in error in holding  that  the decision  of this Court in Balakotaiah’s case  (1)  governed the  present  case also.  This Court held further  that  the charge  drawn  up  against the  railway  servants  concerned showed not only that they were communists or trade unionists but that they were engaged in subversive activities.  Hence, it  could  not  be said that the  orders  terminating  their services  contravened Art. 19 (1) (c) of  the  Constitution. It  was  also  held  by this Court  that  Art.  311  of  the Constitution was not attracted to the case because (1)  [1958] S.C.R. 1052. 416 that was not a case of dismissal or removal from service by way  of punishment.  It was also held in that case that  the order  terminating the services under r. 3 of  the  Security Rules  stood  on the same footing as an order  of  discharge under  r.  148 of the Railway Establishment  Code  and  was, therefore,   outside  the  purview  of  Art.  311   of   the Constitution.  It is not disputed that there is no provision in  the  Rules  relating to  Posts  and  Telegraphs  Service corresponding  to r. 148 of the Railway Establishment  Code. In the instant case, therefore, the premature termination of service before the age of superannuation could be  justified only by virtue of r.     3.  As r. 3 had not been  attracted to   the   appellant’s  case  for   reasons   given   above, it   follows      at  the  premature  termination   of   the appellant’s  service  would be tantamount  to  removal  from service by way of penalty.  In that view of the matter,  the appellant certainly had a grievance which he could ventilate under  Art.  226 of the Constitution, and  on  the  findings arrived at by us on the main question he is entitled to  the declaration  that his service was not legally terminated  in accordance  with r. 3 of the Security Rules.  The appeal  is accordingly allowed with costs. Appeal allowed.  417

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