V. S. Menon Vs. Union of India [1962] INSC
332 (22 November 1962)
SINHA, BHUVNESHWAR P.(CJ) 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 actionSubversive
activitiescharge of associating with communistscompulsory retirement Legality
of-writ Petition-If maintainable-Civil Services (Safeguarding of National
Security) Rules, 1949. r 3Constitution 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 reorganized-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. The Union, of; India,,
[1958] S. C. R. 1052, distinguished.
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 organizations and groups
in Nagpur. You are also reported to be actively, continuing your association
with Shri 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 bythe 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
Communists.
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 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. STA. 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." 9810/52SEA, 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 associated 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) 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 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 sustained 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 activities by
himself or along with 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 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 (1). That was 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 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.
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