V. S Menon v. Union of India

May HJ, 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.

¶3The competent authority (who in this case is the Director General, Posts and Telegraphs) after careful consideration of this case is of the opinion that Shri V. S. Menon has been associ-ated with others in subversive activities 1n such a manner as to raise doubts about his reliability,

and is satisfied that his retention in the public 1912 service is prejudicial to national security. Shri t'.S.M-V. S. Menon is hereby informed that the compe-v. tent authority has accordingly decided, with the l!aiM ef Ill& prior approval of the President, that Shri V. S. Sia'-, J. Menon should be compulsorily retired from service in accordance with the provisions of the Rule 3 of Civil Services (Safeguarding of National Security) Rules, 1949.

(H. L. Jerath) 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 Kausltalendra Rao, V. R. Sen and Bhutt, .IJ. The Court was agreed as to the order to be passed, namely, that the petition should be dismissed on the ground that no writ could issue against the respondents, though the Judges were not agreed on the merits of the controversy.

Kaushalendra Rao, J.-was of the view that even on merits the Court could not grant any relief whereas Sen and Bhutt, JJ., took the view ~t 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 activi-ties, and that, therefore, there was no compliance with r. 4 of the Rules.

As the petition under Art. 226 of the Constitu - tion 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 ~tition was heard by a learned Single Judge (1''alshaw, .J.), who by his judgment and order dated September 10, 1957, disagreeing with the views of the majority of the Judges of the Nagpur High Court,

412 SUPRE1\-1E COURT REPORTS [1963] SUPP.

1962 dismissed the petition holding that the charge laid V.S. M'no1t against the app.ellant should not be too strictly cons-

v. trued, and that his compulsory retirement under the U11ion o/ /11ida Rules did not amount to dismissal or removal from Sinha, 0. J. service under Art. 311 of the Constitution. From

the judgment of the learned Single Judge, the appel-lant 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 a 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 associa-tion with persons who are concerned with such activi-ties; (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 hear· ing by the Committee of Advisors, for which he had made a special request; and (7) compulsory 1~2 retirement means premature termination of service, J!.S. •• Mmon and is, therefore, a special penalty which could not •f be inflicted without appropriate enquiry and proper Union India opportunity to show cause. SinM, J.

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 asso-ciate with others engaged in subversive activities", which is not the gravamen of the charge as contemp-lated 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 com-pulsorily 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."

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That rule contemplates compulsory retirement from service of a government servant who (a) is en-gaged in subversive activities, or (b) is reasonably L 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 rdiability, as also that his retention in the public service is prejudicial to 1962 national security. And, finally, where such an order I'.~- Alf!I'" is passed by a competent authority in his capacity as

v. ,r the head of dt>partment, the prior approval of the Uni,. l•4i4 Governor-General (now the President) has to be

SilAo, C. J. 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 activi-ties 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 acti-vities 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 wns no basis for the procedure adopted in pursuance of r. 4. J t 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 alle-gations 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 conti· _ nuing his association with Shri B. N. Mukherjee and other prominent local communists. But no where it is alleged that the appellant had taken any part in subversive activities by himself or alongwith others with whom he is said to have been associated. Taking interest in political activities of the Commu· 1961 nist party would not amount to taking part in subver-v. s. ,,,_ sive activities so long as the Communist party conti-v. 1rim. nued to be a recognised political organisation, which u.;.. •f has not heed banned. It cannot be asserted that Sinlto, J. simply talking 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, must amount 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 ('). That was a case 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 tht;: same terms as r. 3 in this case. Rule 3 in that case was held to be constitutionally valid as not being repuimant to Art. 14 of the Constitution. But, in our opinion, the High Court was in error in holding el that the decision of this Court in Balakotaiah's case govemed 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 orden; 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

(I) (1!158J l.C.R, ION.

1962 that was not a case of dismissal or removal from Y.S. service by way of punishment. It was also held in

M11111ri ••

that case that the order terminating · the services Union of lntli.J under r. 3 of the Security Rules stood on the same Sinlz•, C. J. footing as an order of discharge under r. 148 of the

Railway Establishment Code, and was, therefore, outside tht> purview of Art. 3ll 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 Establish-ment 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 that 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.