Case: P. Balakotaiah Vs. The Union Of India And Others(And Connected Appeals)

2. The facts in Civil Appeal No. 46 of 1956- the facts in the connected appeals are similar and do nor 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 have option to the employees to continue in service on the terms set out in a document 5-7-1946. The appellant accepted those terms and continued in service on the conditions mentioned in that document. Acting in exercise of the powers conferred by Ss. 241 (2), 247 and 266 (3) of the Government of India Act, 1933. 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 lieu of such notice in accordance with the terms of his service agreement;4. 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 R. 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 R. 3;(c) give him a reasonable opportunity of showing cause against that action; and5. Nothing contained in the Rules in Chapter XVII of the State Railway Establishment Code, Volume I, shall apply to or in respect of, any action taken or proposed to be taken under these rules6. The petition was heard along with others, in which the same questions were raised and by their judgment dated 16-11-1951, 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.:Rule 148 (3): Other (non-pensionable) railway servants:4. In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a Railway servant by paying him the pay for the period of noticeThe learned Judges held that the appellants were non-pensionable railway servants within sub-r. (3), that they had been paid on months wages instead of notice under sub-r. (4) and that, accordingly, the impugned orders were intra vires the powers of the respondents under R. 148, sub-r (3). In the result, the petitions were dismissed, and the present appeals have been preferred against these order on a certificate under Art. 132 (1) and Art. 133 (1) (c) of the Constitution.

Reasoning:
it has not been the contention of the respondents at any stage that the orders in question were really made under R. 148 (3) 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 5-7-1946, 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 1-10-1946 were applicable, that R. 148 (3) 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 stately under R 3 should be held not to have been passed under that rule. Before us a different stand was taken by the respondentsWe see considerable force in the contention of the appellants that the mention of the service agreement in R.3 has reference only to the nature of the notice to be given.It 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. Gannapathy Iyer for the respondents argued 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, and R. 148 cannot be invoked to give validity to such order. Indeed, that has been held in Sambandam v. General Manager, S. I. Rly., ILR (1953) Mad 229: (AIR 1953 Mad 54  ) (A); and Prasadi v. Works Manager, Lillooah, AIR 1957 Cal 4   (B); 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. 14Those 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 v. Southern Railway(D), (supra) at p. 223 that the language of R. 3 is indefinite, even when read with the words national securityalso 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 6-7-1950, 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 Art. 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 Communist or a trade unionist, but because he was engaged in subversive activities. We hold that he Security Rules are not illegal as being repugnant to Art. 14we do not see how any right of the appellants under Art. 19 (1) (c) had 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 served have been terminated; but that involves, apart from Art. 311, no infringement of any of their Constitutional rights. The appellants have no doubt a fundamental right to form associations under Art. 19 (1) (c), 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 Art. 311 arises.This contention of the appellants must also be rejectedNow, 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 Art. 311, 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 v. Union of India, 1953 SCR 655  : (AIR 1953 SC 250  ) (F); Shyam Lal v. State of Uttar Pradesh and the Union of India, 1955-1 SCR 26  : (AIR 1954 SC 369  ) (G); State of Bombay v. Saubhagchand M. Doshi, Civil Appeal No. 182 of 1955: ((S) AIR 1957 SC 892  ) (H); and Parshotam Lal Dhingra v. Union of India, Civil Appeal No. 65 of 1957: (AIR 1958 SC 36  ) (I). The question as to what would amount to punishment for purposes of Art. 311 was also fully considered in Parshotam Lal Dhingras case (I) (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 premature termination of his service 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 premature termination arises. Rule 7 of the Security Rules preserves the rights of the employees 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 reemployment, and that that was punishment. But the appellants are unable to pint 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 Art. 311. This contention also must be overruledNow, 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 retrospectiveLastly, is 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.