V.S. Menon vs Union Of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 22 November, 1962

Coram: B.P. Sinha, J.C. Shah, K.C. Das Gupta, K.N. Wanchoo, P.B. Gajendragadkar

In the matter of V.S. Menon versus the Union of India, decided on 22 November 1962, a bench consisting of B.P. Sinha, J.C. Shah, K.C. Das Gupta, K.N. Wanchoo and P.B. Gajendragadkar delivered the judgment. The case arose on a special leave appeal challenging a decision of the Punjab High Court dated 6 October 1960, which had dismissed a Letters Patent appeal against an order of a single judge of that court dated 10 September 1957. The order of the single judge had dismissed the appellant’s writ petition filed under article 226 of the Constitution. The respondents in the appeal were the Union of India and the Director‑General of Posts and Telegraphs, New Delhi.

The background of the dispute was complex. The appellant, V.S. Menon, had been appointed in June 1943 as an Engineering Supervisor by the second respondent. In January 1949 he was suspended from service because of certain activities that were deemed objectionable. He received a notice requiring him to show cause, and his case was subsequently examined by a Committee of Advisers, which recommended that he be retained in service. Acting on that recommendation, the appellant was reinstated effective 26 May 1951. After passing a departmental examination in 1952, he was appointed as an officiating Sub‑Divisional Officer, Telegraphs, and was posted to Nagpur.

While serving in Nagpur, the appellant received on 3 November 1952 a notice issued from the office of the Director‑General of Posts and Telegraphs, invoking rules 3 and 4 of the Civil Services (Safeguarding of National Security) Rules, 1949 (hereinafter “the Rules”). The notice, numbered 98‑10/52, was addressed to the appellant and stated that the “Competent Authority”, defined in rule 2 of the Rules and identified as the Director‑General, had reasonable grounds to believe that after his reinstatement on 26 May 1951 he had continued to associate with individuals engaged in subversive activities, thereby casting doubt on his reliability. Consequently, the authority proposed to take action for compulsory retirement under rule 3 of the Rules. The notice enumerated specific allegations: that shortly after his arrival in Nagpur, notable local communists had approached him; that during discussions he had expressed personal interest in the political activities of the Communist Party and other political groups; and that he was actively maintaining association with Shri B.N. Mukherjee and other prominent local communists.

The notice required the appellant to take leave, effective from 15 November 1952, and to respond within fourteen days of receipt, indicating whether he accepted or denied the accuracy of the allegations. It further informed him that failure to reply would be deemed an admission of the allegations, and that he could submit any representation as to why he should not be compulsorily retired. The notice also outlined the subsequent procedure for consideration of his representation by the competent authority and possible referral to the Committee of Advisers.

The notice required the respondent to either deny the accuracy of the allegations or, if no reply was received within the prescribed period, the respondent would be deemed to have admitted the allegations. The notice further stated that, regardless of whether the respondent chose to deny the allegations, the respondent was entitled to submit, within the same fourteen‑day period, any representation explaining why compulsory retirement under the applicable Rules should not be imposed. The competent authority was directed to consider any such representation; if, after review, the authority concluded that no further action was warranted, it was to inform the respondent accordingly. Conversely, if the authority determined that the representation did not remove sufficient cause for action, the entire record, together with the respondent’s submission, would be forwarded to the Committee of Advisers established by the Government of India for that purpose. The notice also asked the respondent to indicate whether he wished to be heard personally by the Director General or by the Committee of Advisers before any final order was made. Finally, the notice warned that failure to reply within fourteen days of receipt would result in an order being passed on the case without any further reference to the respondent. The notice was signed by the Director General, Posts and Telegraphs, New Delhi.

On 17 November 1952 the appellant filed his answer to the original show‑cause notice. The answer, consisting of nine typed pages, asserted that the charge was vague, baseless and without foundation, and it requested that a personal hearing be held before the second respondent as well as before the Committee of Advisers. Subsequently, on 23 January 1953 the appellant submitted a letter in which he asked that, at the time of the oral hearing, all the evidence on which the charges set out in the earlier notice dated 3 November 1952 had been based be made available to him so that, after examining that material, he could demonstrate his innocence. On 28 January 1953 the second respondent personally examined the appellant. After this examination, a second show‑cause notice was issued on 19 May 1953. The memorandum, identified as STA‑98‑10/52/SEA, again called Shri V. S. Menon, Sub‑divisional Officer, Telegraphs, Nagpur, upon to answer the same set of allegations regarding his alleged contacts with local Communists and his continued association with Shri B. N. Mukherjee and other prominent Communists. The Committee of Advisers, having reviewed the defence submitted by Shri Menon together with the record of the personal hearing, expressed a provisional opinion that sufficient grounds existed to sustain the charges and to justify his compulsory retirement from service under Rule 3 of the Civil Services (Safeguarding of National Security) Rules, 1949. Accordingly, Shri Menon was again called upon to show cause within fifteen days of receiving the memorandum why he should not be retired compulsorily.

The Director General warned that if Shri Menon failed to file his defence within the prescribed time, the authority would pass orders ex parte. On 28 August 1953 a formal memorandum was issued, bearing the reference STA‑98‑10/52/SEA and dated New Delhi, 28 August 1953. The memorandum recorded that, by reference to an earlier office memo of the Director General, Posts and Telegraphs dated 3 November 1952 (STA‑98‑10/52), Shri V.S. Menon, who was then the officiating Sub‑Divisional Officer for Telegraphs at Nagpur, had been informed of the specific grounds on which his compulsory retirement was being considered under Rule 3 of the Civil Services (Safeguarding of National Security) Rules, 1949. He was invited to submit any representation as to why he should not be retired under those rules. Shri Menon filed a written statement in defence on 17 November 1952, in which he also requested a personal hearing before the Director General. The Director General consequently granted him an oral hearing, which took place on 28 January 1953.

The Committee of Advisers subsequently reviewed the defence submitted by Shri Menon together with the record of the personal hearing and concluded that there were sufficient grounds to justify his compulsory retirement under Rule 3. Accordingly, the Director General, Posts and Telegraphs, issued another memorandum, STA‑98‑10/52‑SEA dated 19 May 1953, calling Shri Menon to show cause why he should not be retired. Shri Menon responded with a further representation on 18 June 1953, which was also examined.

After a careful overall consideration, the competent authority—identified as the Director General, Posts and Telegraphs—opined that Shri Menon had associated himself with others in subversive activities, creating serious doubts about his reliability and rendering his continued service prejudicial to national security. With prior approval of the President, the authority decided, by way of an order signed by H.L. Jerath, that Shri V.S. Menon should be compulsorily retired from service in accordance with the provisions of Rule 3 of the Civil Services (Safeguarding of National Security) Rules, 1949.

Thereafter, the appellant filed a petition in the erstwhile High Court of Judicature at Nagpur under Article 226 of the Constitution. The petition was heard by a full bench comprising three judges: Kaushalendra Rao, V.R. Sen and Bhutt. While the bench agreed that the petition should be dismissed because no writ could be issued against the respondents, the judges differed on the merits. Justice Kaushalendra Rao held that, even on the merits, the court lacked authority to grant any relief.

Sen and Bhutt, JJ., held that the matter did not fall within the scope of Article 310 of the Constitution because the initial show‑cause notice contained only vague allegations and failed to disclose any personal participation by the appellant in subversive activities; consequently they concluded that the requirements of Rule 4 of the Civil Services (Safeguarding of National Security) Rules, 1949, had not been satisfied. After the petition filed under Article 226 of the Constitution in the Nagpur High Court proved ineffective, the appellant sought relief before the Circuit Bench of the Punjab High Court at Delhi, also invoking Article 226. The petition was heard by a learned Single Judge, Falshaw, J., whose judgment dated 10 September 1957 rejected the majority view of the Nagpur Full Bench. Falshaw, J. dismissed the petition on the ground that the charge against the appellant should not be interpreted in a narrow manner and that the appellant’s compulsory retirement pursuant to the Rules did not constitute a dismissal or removal from service within the meaning of Article 311 of the Constitution. From that judgment the appellant appealed under the Letters Patent to a Division Bench comprising Chief Justice Khosla and Justice Shamsher Bahadur. The Division Bench also dismissed the appeal, observing that although the charge‑sheet submitted against the petitioner was not entirely consistent with the language of Rule 3, the inquiry conducted was proper and the petitioner had been afforded a reasonable opportunity to show cause before the proposed action was taken.

The appellant subsequently obtained special leave to appeal before this Court, the leave being granted on 21 February 1961, and the matter now stands for consideration. Counsel for the appellant advanced several points of challenge. First, it was contended that the Rules represented a colourable exercise of the power conferred on the Governor‑General under Section 241(2) of the Government of India Act, 1935, because their purpose extended beyond the regulation of conditions of service. Second, the Rules were alleged to be violative of Section 241(3)(c). Third, the Rules were said to lack any provision for, or authority to, constitute a Committee of Advisors. Fourth, the charge against the appellant was described as falling outside Rule 3, which requires the participation of the officer in subversive activities rather than mere association with persons engaged in such activities. Fifth, it was argued that the appellant was denied a reasonable opportunity to show cause because the charge and accompanying allegations were vague and no particulars were disclosed, while the competent authority withheld all evidentiary material on the ground that it was contained in secret documents. Sixth, the appellant claimed he was not given any hearing before the Committee of Advisors, despite a special request for such a hearing. Seventh, the contention was made that compulsory retirement amounted to premature termination of service, which is a special penalty that cannot be imposed without a proper enquiry and a genuine opportunity to show cause. The Court noted that it is unnecessary to examine every ground raised, because the appeal must succeed on the basis that the charge, as quoted, that the appellant “continued to associate with others engaged in subversive activities,” does not align with the essential requirement of Rule 3.

In this case, the Court observed that the appeal should succeed because the charge framed against the appellant—“you have continued to associate with others engaged in subversive activities”—did not correspond to the essential element required by rule 3. Rule 3, as quoted, stated: “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.” The Court explained that the rule contemplated compulsory retirement only when a servant (a) was engaged in subversive activities, (b) was reasonably suspected of such engagement, or (c) was associated with others in subversive activities, and that any one of those alternatives required the authority to be convinced that the manner of the activities raised doubts about the servant’s reliability and that his continued service would prejudice national security. Moreover, where the authority acted as head of a department, prior approval of the Governor‑General (now the President) was mandatory. On examining the charge against the appellant, the Court found that it alleged merely that the appellant associated with persons who were engaged in subversive activities; it did not allege that the appellant himself was engaged in, reasonably suspected of being engaged in, or associated with subversive activities in a manner that raised reliability doubts. Consequently, the charge could not be sustained under rule 3. Because the rule had a penal character, the Court stressed that it must be construed strictly; if the appellant had even been suspected of personal involvement, the charge would have been phrased accordingly. Since no such allegation of suspicion or personal participation was made, the charge fell outside rule 3’s scope, rendering the procedure under rule 4 inapplicable. The Court therefore concluded that it was unnecessary to examine whether the procedure prescribed by rule 4 had been observed. Additionally, beyond the fundamental defect in the charge, even the accompanying allegations merely stated that after his arrival in Nagpur, the appellant had been reported to have contracted with local communists and shown interest in political activities of the Communist Party, without any claim that he personally participated in subversive acts.

It was reported that important local communists in Nagpur had approached the appellant, that he expressed interest in the political activities of the Communist Party as well as other political organisations and groups in Nagpur, and that he continued to associate with Shri B.N. Mukherjee and other prominent local communists. However, nowhere in the charge was it alleged that the appellant himself had taken part in any subversive activity either alone or together with the persons with whom he was said to have been associated. Merely taking an interest in the political activities of the Communist Party did not, by itself, constitute participation in subversive activity so long as the Communist Party remained a recognised political organisation and had not been banned. The charge could not be said to arise simply because the appellant talked with members of the Communist Party or maintained associations with such members. For conduct to fall within the scope of the rule, subversive activity must involve an active pursuit of actions that are intended to subvert the government established by law. The record contained no allegation that the appellant had engaged in such active, calculated conduct. Consequently, the factual allegations did not satisfy the requirement that the appellant’s conduct be characterised as subversive.

The remaining issue was whether, based on the facts and circumstances disclosed, the appellant possessed a valid grievance that could be addressed by the High Court under Article 226 of the Constitution. The judgment under appeal held that the present case was governed by the decision of this Court in P. Balakotaiah v. Union of India [1958] S.C.R. 1052, where the services of railway employees were terminated for reasons of national security under Rule 3 of the Railway Service (Safeguarding of National Security) Rules, 1949. Rule 3 in that earlier case was essentially identical to Rule 3 in the present matter and had been upheld as constitutionally valid, not contravening Article 14. The Court, however, found that the High Court erred in applying the Balakotaiah precedent to the present facts. In Balakotaiah, the charge against the railway servants explicitly indicated that they were not only communists or trade‑unionists but were actively engaged in subversive activities, and therefore the termination of their services did not infringe Article 19(1)(c). Moreover, the Court held that Article 311 was inapplicable because the termination was not a dismissal or removal as punishment, and that an order issued under Rule 3 of the Security Rules was equivalent to a discharge under Rule 148 of the Railway Establishment Code, placing it outside the scope of Article 311. It was undisputed that the Rules relating to Posts and Telegraphs contained no provision comparable to those in the railway rules.

The service in question fell under rule 148 of the Railway Establishment Code, which governs the conditions of appointment and discharge of railway employees. In the present matter, the termination of the appellant’s service occurred before he reached the statutory age of superannuation, and therefore such premature termination could be justified only by invoking rule 3 of Security Rules. However, as explained earlier, rule 3 could not be applied to the appellant’s situation for the reasons set out in the preceding discussion, and consequently the termination amounted to removal from service as a penalty. Because the termination was effectively a penal removal, the appellant possessed a legitimate grievance that he could have raised under article 226 of the Constitution, which permits judicial review of administrative actions. On the basis of the findings that the Court reached on the principal issue, the appellant is entitled to a declaration that his service was not terminated in accordance with rule 3 of Security Rules. Accordingly, the Court allowed the appeal, ordered that the appellant’s service be considered not properly terminated, awarded costs to the appellant, and consequently the appeal was therefore allowed. The decision underscores that termination of a railway employee’s service without following the specific provisions of rule 3 is deemed punitive and cannot be sustained under constitutional safeguards.