vil Appeals Nos 46 to 48 of 1956
Appeals from the judgment and order dated November 16 1951 of the former Nagpur High Court in Misc
Petitions Nos
451568 and 1569 of 1951
H J Umrigar D L Jayawant and Naunit Lal for the appellants in C A Nos 46 and 47 of 56
D L Jayawant and Naunit Lal for the appellant in C A No 48 of 56
1054 R Ganapathi Iyer and R H Dhebar for the respon dent In all the appeals
December 3
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J
These appeals are directed against the orders of the High Court of Nagpur dismissing the writ petitions filed by the appellants herein and as they arise out of the same facts and raise the same points for determination they were heard together and will be disposed of by a common judgment
The facts in Civil Appeal No 46 of 1956 the facts in the connected appeals are similar and do not require to be stated are that the appellant was employed in 1939 in the Bengal Nagpur Railway as a clerk in the workshop at Nagpur
In 1946 when the State took over the administration of the Railway it gave option to the employees to continue in service on the terms set out in a document dated July 5 1946
The appellant accepted those terms and continued in service on the conditions mentioned in that document
Acting in exercise of the powers conferred by sections 2412 247 and 2663 of the Government of India Act 1935 the Governor General promulgated certain rules called the Railway Services Safeguarding of National Security Rules 1949 hereinafter referred to as the Security Rules and they came into force on May 14 1949
It will be convenient at this stage to set out the Security Rules in so far as they are material for the purpose of these appeals as it is the validity of these rules that is the main point for determination by us
Rules 3 4 5 and 7 are as follows 3  A member of the Railway Service 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 manner as to raise doubts about his reliability may be compulsorily retired from service or have his service terminated by the competent authority after he has been given due notice or pay in 1055 lieu of such notice in accordance with the terms of his service agreement Provided that a member of the Railway Service shall not be so retired or have his service so terminated unless the competent authority is satisfied that his retention in public service is prejudicial to national security and unless where the competent authority is the Head of a Department the prior approval of the Governor General has been obtained
Where in the opinion of the competent authority there are reasonable grounds for believing that a member of the Railway Service is liable to compulsory retirement from service or to have his service terminated under Rule 3 it shall a by an order in writing require the said member of Railway service to proceed on such leave as may be admissible to him and from such date as may be specified in the order b by a notice in writing inform him of the action proposed to be taken in regard to him under Rule 3 c give him a reasonable opportunity of showing cause against that action  and d before passing a final order under Rule 3 take into consideration any representation made by him in this behalf
Nothing contained in the Rules in Chapter XVII of the State Railway Establishment Code Volume 1 shall apply to or in respect of any action taken or proposed to be taken under these rules
Any person compulsorily retired from service or whose service is terminated under Rule 3 shall be entitled to such compensation pension gratuity and or Provident Fund benefits as would have been admissible to him under the Rules applicable to his service or post on the date of such retirement or termination of service if he had been discharged from service due to the abolition of his post without any alternative suitable employment being provided
 On July 6 1950 the General Manager of the Bengal Nagpur Railway issued a notice to the appellant 1056 under R 3 of the Security Rules stating that in view of the facts recited therein there was reason to believe that the appellant was engaged in subversive activities and calling upon him to show cause why his services should not be terminated
He was also placed under suspension from that date
On July 29 1950 the appellant sent his explanation denying the allegations contained in the notice dated July 6 1950
The matter was then referred to the Committee of Advisers who held an enquiry on September 81950 and after hearing the appellant found that the charges against him mentioned in the notice were true
Acting on this report the General Manager terminated the services of the appellant on April 3 1951 giving him one month s salary instead of notice
Meantime on February 31951 the appellant had filed the writ petition out of which Civil Appeal No 46 of 1956 arises in the High Court of Nagpur challenging the validity of the notice dated July 6 1950 and the order of suspension following thereon
The order of dismissal dated April 3 195 1 having been passed during the pendency of this Petition the appellant had his petition amended by adding a prayer that that order also was bad
The grounds urged in support of the petition were that the Security Rules under which action was taken were in contravention of articles 14 19 1c and 311 of the Constitution and that in consequence the orders passed in exercise of the powers conferred thereby were void
The respondents resisted the application on the ground that the rules in question were valid and that the orders passed thereunder were not open to attack
The petition was heard along with others in which the same questions were raised and by their judgment dated November 16 1951 the learned Judges held that it was unnecessary to decide whether the Security Rules were void as assuming that they were the orders terminating the services of the petitioners could be sustained under R 148 of the Railway Establishment Code
Sub rules 3 and 4 of R 148 which bear on this point are as follows 1057 R 1483 Other non pensionable railway servants  The service of other non pensionable railway servants shall be liable to termination on notice on
either side for the periods shown below
Such notice is not however required in cases of summary dismissal or discharge under the provisions of service agreements retirement on attaining the age of superannuation and termination of service due to mental or physical incapacity
4 In lieu of the notice prescribed in this rule it shall be permissible on the part of the Railway Admi nistration to terminate the service of a Railway servant by paying him the pay for the period of notice The learned Judges held that the appellants were non pensionable railway servants within sub r3 that they had been paid one month s wages instead of notice under sub r4 and that accordingly the impugned orders were intra vires the powers of the respondents under R 148 sub r
In the result the petitions were dismissed and the present appeals have been preferred against these orders on a certificate under article 132 1 and article 1331c of the Constitution
The appellants complain that the ground on which the judgment proceeds was not put forward by the respondents in their pleadings and should not have been allowed to be taken by them and that on the points actually in issue it should have been held that the Security Rules were repugnant to articles 14 191 c and 311 of the Constitution and therefore void
They further contend that even if the Security Rules were valid the orders terminating the services were not justified by them and that further those orders were bad for the reason that they had not been made by the competent authorities
The appellants also sought to raise the contention that the enquiry conducted by the authorities was defective and that there was no proper hearing as provided by the rules but we declined to hear them on that point as that was not raised in their petitions
1058 The points for decision in these appeals are I Whether the orders terminating the services of the appellants can be upheld under R 148 of the Railway Establishment Code IIWhether the Security Rules are bad as infringing a article 14 b article 191c and c article 311 of the Constitution IIIWhether the impugned orders are not valid even according to the Security Rules and IV Whether those orders were not passed by the competent authorities
On the first question it appears clearly from the record that the authorities purported to take action only under the Security Rules
The notice dated July 6 1950 was avowedly issued under R 3 of those rules
It was in the scrupulous observance of the procedure prescribed therein that the explanations of the appellants in answer to the charges were taken and the matters were referred to the Committee of Advisers for enquiry
And above all the orders terminating the services of the appellants in terms recite that they were made under R 3 of the rules as for example the notice dated April 3 1951 given to the appellant in Civil Appeal No 46 of 1956 which runs as follows I have considered your representation to me in reply to this office letter No ConT2 I MP82 dated 6 7 1950 and am of the opinion that you are engaged and associated with others in subversive activities in such mariner as to raise doubts about your reliability and am satisfied that your retention in public service is prejudicial to national security
I have decided with the prior approval of the President that your services should be terminated under Rule 3 of the Railway Services Safeguarding of National Security Rules 1949
 It should be added that while the appellants stated in their petitions that action had been taken against them under the Security Rules and that those rules were ultra vires the respondents did not plead that 1059 action was taken under R 148 of the Railway Establishment Code
They only contended that the Security Rules were valid
In view of the abovethe criticism of Mr Umrigar for the appellants that the judgment under appeal proceeds on a ground which was not merely not in the contemplation of the authorities When they passed the orders in question but was not even raised in the pleadings in Court is not without substance
It is argued that when an authority passes an order which is within its competence it cannot fail merely because it purports to be made under a wrong pro
vision if it can be shown to be within its powers under any other rule and that the validity of an order should be judged on a consideration of its substance and not its form
No exception can be taken to this proposition but it has not been the contention of the respondents at any stage that the orders in question were really made under R 1483 of the Railway Establishment Code and that the reference to R 3 of the Security Rules in the proceedings might be disregarded as due to mistake
In the Court below the learned Judges rested their conclusion on the ground that cl
10 of the service agreement dated July 5 1946 provided that in respect of matters other than those specifically dealt with therein discharge is one of such other matters the Railway rules applicable to persons appointed on or after October 1 1946 were applicable that R 1483 was one of such rules and that the appellants who were non pensionable railway servants were governed by that rule and were liable to be discharged in accordance therewith
But this reasoning ignores that under cl
10 of the service agreement the Security Rules stand on the same footing as the rules in the Railway Establishment Code and constitute equally with R 148 the conditions of service on which the appellants held the employment and there must be convincing reasons why orders passed statedly under R 3 should be held not to have been passed under that rule
Before us a different stand was taken by the respondents
They did not 1135 1060 dispute that the action was really taken under R 3 of the Security Rules but they argued that the power to terminate the service under r 3 was not something different from and independent of the power to discharge conferred by R 148 and that an order passed under R 3 was on its own terms one made under R 1483
The basis for this contention is the provision in R 3 that the service may be terminated in accordance with the service agreement after giving due notice or
pay in lieu of such notice
The appellants controvert this position
They contend that the power to terminate the service under the Security Rules is altogether different from the power to discharge under R 148 that the reference in R 3 to the service agreement is only in respect of the notice to be given there being different periods fixed under the rules in relation to different classes of employees and that in other respects the Security Rules run on their own lines and that action taken thereunder cannot be shunted on to R 148
We find considerable difficulty in acceding to the argument of the respondents
The Security Rules apply to a special class of employees those who are engaged or are likely to engage in subversive activities and in conjunction with the instructions which were issued when they were promulgated they form a self contained code prescribing a special and elaborate procedure to be followed when action is to  be taken thereunder
We see considerable force in the contention of the appellants that the of the service agreement in R 3 has reference only to the nature of the notice to be given
If the interpretation which the respondents seek to put on the Security Rules is correct then it is difficult to see what purpose at all they serve
Mr Ganapathy Iyer for the respondents argues that they are intended to afford protection to persons who might be charged with being engaged in subversive activities
If that is their purpose then if action is taken thereunder but the procedure prescribed therein is not followed the Order must be held to be bad as the protection intended to be given has been denied to the employee 1061 and R 148 cannot be invoked to give validity to such order
Indeed that has been held in Sambandam vs General Manager section I Ry
1 and Prasadi vs Works Manager Lillooah 2  and that is also conceded by Mr
Ganapathy Iyer
If then the power to terminate the service under the Security Rules is different from the power to discharge under R 148 when the procedure prescribed therein is not followed it must be equally so when as here it has been followed for the complexion of the rules cannot change according as they are complied with or not
That means that the Security Rules have an independent operation of their own quite apart from R 148
We do not however desire to express any final opinion on this question as Mr Ganapathy Iyer is willing that the validity of the orders in question might be determined on the footing that they were passed under R 3 of the Security Rules without reference to R 148
That renders it necessary to decide whether the Security Rules are unconstitutional as contended by the appellants
Ila
The first ground that is urged against the validity of the Security Rules is that they are repugnant to article 14
It is said that these rules prescribe a special procedure where action is proposed to be taken against persons suspected of subversive activities and that when the services of an employee are terminated under these rules the consequence is to stamp him as unreliable and infamous and there is thus discrimination such as is hit by article 14
It is admitted that if the persons dealt with under these rules form a distinct class having an intelligible differentia which bears a reasonable relation to the purposes of the rules then there would be no infringement of Art14
But it is argued that the expression  subversive activities which forms the basis of the classification is vague and undefined in that even lawful activities could be roped therein and that such a classification cannot be said to be reasonable
Reference was made to the charges which were served on the appellant in Civil Appeal No 46 of 1956 as showing how even lawful activities 1 ILR 2 AIR 1957 Cal
4 1062 could be brought under the impugned rules
The notice so far as it is material runs as follows  Whereas in the opinion of the 
General Manager you are reasonably suspected to be a member and office secretary of the B N Rly
Workers  Union Communist sponsored and were thickly associated with communists such as Om Prakash Mehta BN Mukherjee R L Reddy etc in subversive activities in such manner as to raise doubts about your reliability and loyalty to the State in that though a Government employee you attended private meetings of the Communists carried on agitation amongst the Railway workers for a general strike from November 1948 to January 1949 evidently to paralyse communication and movement of essential supplies and thereby create disorder and confusion in the country and that consequently you are liable to have your services terminated under rule 3 of the said Rules
 It is argued that it is not unlawful to be a member of the Communist Party or to engage in trade union activities and if this could form the basis of action under the rules the classification must be held to be unreasonable
Reliance was placed on the decision of this Court in The State of West Bengal vs Anwar Ali Sarkar 1 wherein it was held that a power conferred on the executive to select cases for trial by special courts under a procedure different from that of the ordinary courts with the object of ensuring  speedy trial  could not be upheld under article 14 as a valid classification and on the decision of the Madras High Court in Ananthanarayanan vs Southern Railway2 wherein it was hold that the words  subversive activities  in R 3 lacked definiteness
Now the principles applicable for a determination whether there has been a proper and valid classification for purposes of article 14 have been the subject of consideration by this Court in a number of cases and they were stated again quite recently in Budhan Choudhry and others vs The State of Bihar3 and there is no need to repeat them
The only point that 1  2 AIR 1956 Mad 220
3 19551 SCR 1045 1049
1063 calls for decision in these appeals is whether the classi fication of persons on the basis of subversive activities is too vague to be the foundation of a valid classification
Mr Umrigar insists that it is but his elaborate argument amounts to no more than this that the expression  subversive activities  may take in quite a variety of activities and that its contents are therefore wide
It may be that the connotation of that expression is wide but that is not to say that it is vague or indefinite
But whatever the position if the words subversive activities  had stood by them selves they are sufficiently qualified in the Security Rules to be definite
Those rules have for their object the safeguarding of national security as recited in the short title
That is again emphasised in R 3 which provides that a member of the Railway service is not to be retired or his services terminated unless the authorities are satisfied  that his retention in public service is prejudicial to national security 
In our judgment the words  subversive activities  in the context of national security are sufficiently precise in their import to sustain a valid classification
We are unable to agree with the opinion expressed in Ananthanarayanan vs Southern Railway supra at p 223 that the language of R 3 is indefinite even when read with the words  national security
We are also unable to agree with the argument of the appellants based on the charges made against the appellant in Civil Appeal No 46 of 1956 in the notice dated July 6 1950 that the expression subversive activities  is wide enough to take in lawful activities as well and must therefore be held to be unreasonable for purposes of classification under article 14
The notice it is true refers to the appellant being a member of the Communist Party and to his activities in the trade union
It is also true that it is not unlawful to be either a Communist or a trade unionist
But it is not the necessary attribute either of a Communist or a trade unionist that he should indulge in subversive activities and when action was taken against the appellant under the rules it was not because he was a 1064 Communist or a trade unionist but because he was engaged in subversive activities
We hold that the Security Rules are not illegal as being repugnant to a article 14
IIb
It is next contended that the impugned orders are in contravention of article 191c and are therefore void
The argument is that action has been taken against the appellants under the rules because they are Communists and trade unionists and the orders terminating their services under R 3 amount in substance to a denial to them of the freedom to form associations which is guaranted under article 191c
We have already observed that that is not the true scope of the charges
But apart from that we do not see how any right of the appellants under article 191c has been infringed
The orders do not prevent them from continuing to be Communists or trade unionists
Their rights in that behalf remain after the impugned orders precisely what they were before
The real complaint of the appellants is that their services have been terminated but that involves apart from article 31 1 no infringement of any of their Constitutional rights
The appellants have no doubt a fundamental right to form associations under article 191c but they have no fundamental right to be continued in employment by the State and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights when no question of violation of article 311 arises
This contention of the appellants must also be rejected
IIc
it is then contended that the procedure pres cribed by the Security Rules for the hearing of the charges does not satisfy the requirements of article 311 and that they are in consequence void
But article 311 has application only when there is an order of dismissal or removal and the question is whether an order terminating the services of the employees under R 3 can be said to be an order dismissing or removing them
Now this Court has held in a series of decisions that it is not every termination of the services of an employee that falls within the operation of article 311 1065 and that it is only when the order is by way of punishment that it is one of dismissal or removal under that Article
Vide Satish Chandra Anand vs Union of India 1 Shyam Lal vs The State of Uttar Pradesh and the Union of India 2 State of Bombay vs Saubhagchand M Doshi 3 and Parshotam Lal Dhingra vs Union of India 4
The question as to what would amount to punishment for purposes of article 311 was also fully considered in Parshotam Lal Dhingra s case supra
It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement a permature termination of his services would be a punishment
And likewise if the order would result in loss of benefits already earned and accrued that would also be punishment
In the present case the terms of employment provide for the services being terminated on a proper notice and so no question of permature termination arises
Rule 7 of the Security Rules preserves the rights of the employee to all the benefits of pension gratuities and the like to which they would be entitled under the rules
Thus there is no forfeiture of benefits already acquired
It was stated for the appellants that a person who was discharged under the rules was not eligible for re employment and that that was punishment
But the appellants are unable to point to any rule imposing that disability
The order terminating the services under R 3 of the Security Rules stands on the same footing as an order of discharge under R 148 and it is neither one of dismissal nor of removal within the meaning of article 311
This contention also must be overruled
111 It is next contended by Mr Umrigar that the charges which were made against the appellant in Civil Appeal No 46 of 1956 in the notice dated July 6 1950 have reference to events which took place prior to the coming into force of the Security Rules which was on May 14 1949 and that the order terminating the services of the appellant based thereon is bad as giving retrospective operation to the rules I  2   3 Civil Appeal No 182 Of 1955
4 Civil Appeal No 65 of 1957
1066 and that the same is not warranted by the terms there of
Now the rules provide that action can be taken under them if the employee is engaged or is reasonably suspected to be engaged in subversive activities
Where an authority has to form an opinion that an employee is likely to be engaged in subversive activities it can only be as a matter of inference from the course of conduct of the employee and his antecedents must furnish the best materials for the same
The rules are clearly prospective in that action thereunder is to be taken in respect of subversive activities which either now exist or are likely to be indulged in in future that is to say which are in esse or in posse
That the materials for taking action in the latter case are drawn from the conduct of the employees prior to the enactment of the rules does not render their operation retrospective
Vide the observations of Lord Denman C J in The Queen vs St Mary Whitechapel 1 and The Queen vs Christchurch 2
This contention must also be rejected
IV Lastly it was contended that the impugned orders were not passed by the competent authorities under the Security Rules and that they were therefore void
This contention is based on the fact that the authority competent to pass the orders under R 3 is as regards the present appellants the General Manager and that the impugned orders were actually communicated to them by the Deputy Manager
But it has been found as a fact that the orders had been actually passed by the General Manager and that finding must be accepted
In the result the appeals fail and are dismissed with costs
The appellants who were permitted to file the appeals in forma pauperis will also pay the court fees payable to the Government
Appeals dismissed
1   116 ER811
2    825


Summary:
The Hindu Law of Inheritance Amendment Act Act II of 1929 which introduced the son s daughter daughter s daugh ter sister and sister s son between the grandfather and the paternal uncle in the order of succession applies only to the separate property of a Hindu male who dies intestate
It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all
The Act cannot therefore be invoked to determine the heirs of a Hindu female in respect of her stridhan property
The property of a Hindu female who dies as a maiden goes in the first place to her uterine brothers then to the mother and then to the father and on failure of the mother and father it goes to the nearest relations that is to say to the sapindas of the father and in their default the sapindas of the mother both in the order of propinquity
Under the Mitakshara law of succession as well as the Mayukha law the paternal uncle s son is entitled to succeed to the property of a Hindu in preference to sister s sons
Manda Mahalakshmamma vs Mantravadi ILR 1947 Mad 23 Shakuntala Bai vs Court of Wards ILR 1942 Nag
629 Taluhraj Kuar vs Bacha Kuar ILR 28 Pat
150 Kuppuswami vs Manickasari AIR approved
Shamrao vs Raghunandan ILR  Mst
Charjo vs Dinanath AIR  Kehar Singh vs Attar Singh AIR  Indra Pal vs Humangi Debi ILR 1949 All
816 not approved