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: Civil Appeal No. 83 of 62

Decision Date: 22 November 1962

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

In the matter titled V. S. Menon versus Union of India, the Supreme Court rendered its judgment on 22 November 1962. The opinion was authored by Justice Bhuvneshwar P. Sinha, who sat with Justices P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta and J. C. Shah. The petitioner, V. S. Menon, challenged an order of compulsory retirement issued under rule 3 of the Civil Services (Safeguarding of National Security) Rules, 1949. The order was based on an accusation that the petitioner had associated with communists and others engaged in subversive activities. After an enquiry, the authority retired the petitioner from service, prompting him to file a writ petition under article 226 of the Constitution. The High Court dismissed that petition, and the petitioner argued that the order of compulsory retirement was illegal and that the High Court possessed jurisdiction to set it aside. The Supreme Court examined whether the allegation against the petitioner constituted a charge within the meaning of rule 3. It held that the rule required proof that the public servant himself participated in subversive acts or was suspected of such participation; merely associating with persons who engaged in subversive activities did not satisfy this requirement. The Court further observed that taking an interest in the political activities of the Communist Party, which at the time functioned as a reorganised political party and was not prohibited, did not amount to participation in subversive conduct. Consequently, the Court declared the order of compulsory retirement illegal because the rule contemplated compulsory retirement only where the servant was engaged in, or suspected of, subversive acts. The premature termination of the petitioner’s service, lacking justification under rule 3, amounted to removal by way of penalty and therefore attracted the safeguards of article 311 of the Constitution. The Court distinguished the earlier decision in P. Balakotaiah v. Union of India (1958) SCR 1052, noting that the present facts differed. It concluded that the impugned order could be quashed on a petition under article 226, and that the petitioner was entitled to relief from the illegal retirement order.

This appeal was filed as Civil Appeal No. 83 of 1962 under special leave, challenging the judgment and order dated 6 October 1960 of the Punjab High Court (Circuit Bench) in Delhi, which had dismissed a Letter Patent Appeal against a judgment dated 10 September 1957 of a single Judge of that Court. Counsel appearing for the appellant were R. V. S. Mani, H. C. Mital and P. Kesava Pillai; for the respondents, the Solicitor General of India, C. K. Daphtary, appeared together with R. H. Dhebar and P. D. Menon. The judgment was delivered on 22 November 1962 by Chief Justice Sinha. The Court’s decision addressed the legality of the compulsory retirement order, the applicability of rule 3, and the constitutional protections afforded under articles 226 and 311, thereby setting aside the High Court’s dismissal and providing the petitioner with appropriate relief.

The appeal arose from a dismissal of the appellant’s writ petition under Article 226 of the Constitution. Two respondents were involved: the Union of India and the Director General of Posts and Telegraphs, New Delhi. The factual background was complex. The appellant had been appointed as an Engineering Supervisor by the second respondent in June 1943. On 1 January 1949 he was suspended from service because of certain activities that were deemed objectionable. He received a notice to show cause and his case was later examined by a Committee of Advisers, which advised that he should be retained in service. Following that recommendation, the appellant was reinstated with effect from 26 May 1951. After passing his departmental examination in 1952, he was appointed as an officiating Sub‑Divisional Officer, Telegraphs, and was posted to Nagpur.

While serving at Nagpur, the appellant was served on 3 November 1952 with a show‑cause notice issued by the office of the Director‑General of Posts and Telegraphs under Rules 3 and 4 of the Civil Services (Safeguarding of National Security) Rules, 1949 (hereinafter referred to as “the Rules”). The notice, numbered Sta 98‑10/52 New Delhi, 3 November 1952, began by stating that the Competent Authority, defined in Rule 2 of the Rules and identified as the Director‑General, believed there were reasonable grounds to think that, after his reinstatement on 26 May 1951, the appellant continued to associate with persons engaged in subversive activities, thereby casting doubt on his reliability. Consequently, the authority proposed compulsory retirement under Rule 3 of the Rules. The notice listed specific allegations: that soon after his arrival in Nagpur, local communists had approached him, that during discussions he showed interest in the political activities of the Communist Party and other groups in Nagpur, and that he was reported to be maintaining active association with Shri B.N. Mukherjee and other prominent local communists. The notice then set out a series of directives: the appellant was required to take leave admissible to him effective 15 November 1952; he was required to state, within fourteen days of receiving the notice, whether he accepted or denied the accuracy of the allegations, with silence to be deemed an admission; he was invited to submit any representation as to why he should not be compulsorily retired; the competent authority would inform him if no further action was to be taken after considering his representation; and if the authority decided that further action was warranted, the materials on record together with his representation would be referred to the Committee of Advisers established by the Government of India. The notice also asked whether the appellant wished to be heard in person by the Director‑General or by the Committee of Advisers before any order was passed, and warned that failure to reply within fourteen days would result in orders being passed without any further reference to him.

When the authority decided that the circumstances justified further action, it stated that the documents on file together with the employee’s written representation would be sent to the Committee of Advisers that the Government of India had established for this purpose. The notice also asked the employee to indicate whether he wished to appear personally before the Director General or before the Committee of Advisers before any final order was made. It further warned that if no reply was received within fourteen days of the notice, an order would be issued without any additional reference to him. The notice was signed by the Director General of Posts and Telegraphs in New Delhi.

On 17 November 1952 the appellant filed a written answer to the show‑cause notice, producing a nine‑page typed submission in which he contended that the allegations were wholly unfounded and begged a personal hearing before the second respondent as well as before the Committee of Advisers. On 23 January 1953 he sent a letter requesting that, at the time of the oral hearing, all the material on which the accusations dated 3 November 1952 were based be placed before him so that he could examine them and demonstrate his innocence. The Director General personally examined the appellant on 28 January 1953, and subsequently, on 19 May 1953, the appellant was served with a second show‑cause notice. That memorandum, dated 19 May 1953, recited two charges: first, that shortly after his arrival in Nagpur, local Communists had approached him and that he had shown interest in their political activities; second, that he continued his association with Shri B. N. Mukherjee and other prominent local Communists. The memorandum recorded that the Committee of Advisers, after reviewing the appellant’s defence and the record of the personal hearing, was provisionally of the view that sufficient cause existed to support the charges and to justify his compulsory retirement under Rule 3 of the Civil Services (Safeguarding of National Security) Rules, 1949. Consequently, the appellant was directed to show cause within fifteen days why he should not be retired, and a copy of the hearing record was attached. The notice warned that failure to file a defence within the prescribed period would result in an ex parte order, and it was signed by the Director General.

On 28 August 1953 an order was issued in the form of a memorandum numbered ST‑A‑98‑10/52/SEA, dated 28 August 1953. The order referenced the earlier office memorandum dated 3 November 1952 addressed to Shri V. S. Menon, who was then the officiating Sub‑Divisional Officer, Telegraphs, Nagpur, and it reiterated the grounds on which the authority proposed to proceed with his compulsory retirement under Rule 3 of the Civil Services (Safeguarding of National Security) Rules, 1949.

The Officer of Telegraphs in Nagpur was officially notified of the reasons for which his compulsory retirement was being considered under Rule 3 of the Civil Services (Safeguarding of National Security) Rules, 1949, and he was invited to present any representation as to why he should not be retired under those rules. On 17 November 1952, Shri V. S. Menon submitted a written statement in defence of himself and also requested a personal hearing before the Director General. The Director General accordingly accorded an oral hearing on 28 January 1953. After examining Shri Menon’s defence and the record of the hearing, the Committee of Advisers concluded that there were sufficient grounds to justify his compulsory retirement under Rule 3. Consequently, the Director General, Posts and Telegraphs issued a memorandum identified as S T A 98‑10/52‑SEA dated 19 May 1953, directing Shri Menon to show cause why he should not be retired. Shri Menon filed his further representation on 18 June 1953, and that representation was also taken into consideration. The competent authority, namely the Director General of Posts and Telegraphs, after a careful review, formed the opinion that Shri Menon had been involved with others in subversive activities in a manner that cast doubt on his reliability and that his continued service would be detrimental to national security. With prior approval of the President, the competent authority decided that Shri 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, as signed by H. L. Jerath, Director General, Posts and Telegraphs.

The appellant subsequently filed a petition before the then High Court of Judicature at Nagpur under Article 226 of the Constitution. The petition was heard by a Full Bench comprising three judges, namely Justice Kaushalendra Rao, Justice V. R. Sen and Justice Bhutt. The Bench unanimously agreed on the order to dismiss the petition on the ground that no writ could issue against the respondents. Justice Kaushalendra Rao expressed the view that, even if the merits of the controversy were considered, the Court could not grant any relief. In contrast, Justices Sen and Bhutt observed that the matter did not fall within the scope of Article 310 of the Constitution and that the allegations contained in the initial show‑cause notice were vague and failed to disclose any personal involvement of the appellant in subversive activities; consequently, they found that Rule 4 of the Rules had not been complied with. Because the petition under Article 226 in the Nagpur High Court was dismissed as futile, the appellant proceeded to move the Circuit Bench of the Punjab High Court at Delhi, invoking the same constitutional provision.

In this case the appellant filed a petition in the Punjab High Court at Delhi invoking the same constitutional article that had been relied upon before the Nagpur High Court. The petition was assigned to a learned single judge, Falshaw, J., who on 10 September 1957 issued a judgment and order dismissing the petition. In doing so he disagreed with the majority opinion of the Nagpur judges and held that the charge made against the appellant should not be interpreted in a strict manner, and that the appellant’s compulsory retirement under the applicable Rules did not constitute a dismissal or removal from service within the meaning of Article 311 of the Constitution. Following that decision the appellant appealed by way of a Letters Patent appeal to a division bench comprising Chief Justice Khosla and Justice Shamsher Bahadur. That bench also dismissed the appeal; although it observed that the charge‑sheet presented against the petitioner was “not entirely in accordance with the terms of rule 3,” it nonetheless found that the inquiry was proper and that the petitioner had been afforded a reasonable opportunity to show cause in relation to the proposed action. The appellant subsequently sought special leave to appeal to this Court, and such leave was granted on 21 February 1961, bringing the matter before the present Court. Counsel for the appellant advanced a series of contentions. First, it was asserted that the Rules represented a colourable exercise of the power conferred on the Governor‑General under section 241 of the Government of India Act, 1935, because their purpose was not the regulation of conditions of service. Second, it was contended that the Rules contravened section 241(c). Third, the Rules were said to lack any provision for, or authority to constitute, a Committee of Advisors. Fourth, the charge against the petitioner was characterized as falling outside the scope of rule 3, which, the counsel argued, requires the participation of the officer in subversive activities rather than mere association with persons engaged in such activities. Fifth, the appellant claimed he had not been given a reasonable opportunity to show cause because the charge and accompanying allegations were vague and lacked particulars, and because the competent authority allegedly withheld all evidence on the ground that it was contained in secret documents. Sixth, it was asserted that the appellant was denied a hearing before the Committee of Advisors despite having made a special request for such a hearing. Seventh, the appellant maintained that compulsory retirement amounted to premature termination of service, a special penalty that could not be imposed without an appropriate inquiry and a proper opportunity to show cause. The Court observed that it was not necessary to examine each of these grounds in detail, because the appeal would succeed on the foundation that the charge against the appellant – that “you have continued to associate with others engaged in subversive activities” – does not satisfy the essential requirement of rule 3. Rule 3, as quoted, provides that 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 such activities, may be compulsorily retired, provided the authority is satisfied that his continued service would be prejudicial to national security and, where the competent authority is the head of a department, that prior approval of the Governor‑General has been obtained.

In this case the Court examined the provision that a government servant “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 rule contemplated compulsory retirement of a government servant who (a) was engaged in subversive activities, or (b) was reasonably suspected to be engaged in subversive activities, or (c) was associated with others in subversive activities. If any one of those three alternatives was satisfied, the competent authority also had to be convinced that the manner of the servant’s activities raised doubts about his reliability and that his continued service was prejudicial to national security. Finally, where the competent authority acted in the capacity of a department head, prior approval of the Governor‑General (now the President) was required.

The Court observed that the charge framed against the appellant did not allege that he was engaged in, or even reasonably suspected of, subversive activities, nor that he participated in such activities in association with others. The only allegation was that he “associated with others who were engaged in subversive activities.” Because the charge did not fall within any of the three conditions enumerated in rule 3, it could not be sustained under that rule. The Court stressed that the rule was of a penal character and therefore had to be construed very strictly. Had the appellant even been suspected of engaging in subversive activities, the charge would have been framed in those terms; however, the charge made no such suggestion, let alone any allegation that he himself had taken part in subversive conduct.

Consequently, the Court concluded that the charge did not strictly come within the scope of rule 3, and therefore there was no basis for applying the procedure prescribed in rule 4. The Court held that it was unnecessary to pursue an enquiry as to whether the procedure actually adopted complied with rule 4. Apart from this fundamental defect in the charge, the allegations against the appellant were limited to the following facts: after his arrival in Nagpur, important local communists were reported to have contacted him; he was said to have shown interest in the political activities of the Communist Party and other political organisations and groups in Nagpur; and he was reported to be continuing his association with Shri B Mukherjee and other prominent local communists. Nowhere in the charge was it alleged that the appellant had taken any part in subversive activities either by himself or together with the persons with whom he was said to have associated.

In the present case, the Court observed that merely taking an interest in the political activities of the Communist Party does not constitute participation in subversive acts as long as the Party remains a recognised political organisation that has not been prohibited. The Court further stated that simply meeting members of the Communist Party or associating with them cannot be said to amount to engagement in subversive activity. For conduct to be described as subversive and therefore bring a person within the operation of the rule, the conduct must involve active pursuit of actions calculated to overthrow the law‑established government. No such allegation of active subversion was made against the appellant. The Court then turned to the remaining issue of whether the appellant possessed any legitimate grievance that the High Court could entertain under Article 226 of the Constitution. The judgment that is being appealed held that the case was governed by the decision of this Court in P. Balakotaiah v. Union of India (1). That earlier decision involved railway servants whose services were terminated on the ground of national security under Rule 3 of the Railway Service (Safeguarding of National Security) Rules, 1949, a provision that was essentially identical to the Rule 3 applicable in the present matter. The Court in that precedent had upheld the constitutional validity of Rule 3 as not violative of Article 14 of the Constitution.

However, the Court found the High Court’s reliance on Balakotaiah’s case to be mistaken. In Balakotaiah’s case, the Court had observed that the charge against the railway employees demonstrated that they were not merely communists or trade‑unionists but were actively involved in subversive activities; consequently, the termination of their services did not infringe Article 19(1)(c) of the Constitution. The Court also ruled that Article 311 did not apply because the termination was not a dismissal or removal as punishment, and it treated the order issued under Rule 3 of the Security Rules as equivalent to a discharge under Rule 148 of the Railway Establishment Code, placing it outside the scope of Article 311. In the present matter, there is no equivalent provision in the Posts and Telegraphs Service Rules corresponding to Rule 148 of the Railway Establishment Code. Therefore, the premature termination of the appellant’s service could be justified only by invoking Rule 3. Since Rule 3 does not pertain to the appellant’s situation for the reasons previously explained, the early termination amounts to removal from service by way of penalty. In that regard, the appellant indisputably has a grievance that he may raise before the High Court under Article 226, and the Court concluded that he is entitled to a declaration that his service was not lawfully terminated pursuant to Rule 3 of the Security Rules.

Exercising the jurisdiction conferred upon it by article 226 of the Constitution, the Court examined the matter and, based on the conclusions it reached on the principal issue, determined that the petitioner was entitled to a formal declaration that his service had not been terminated lawfully pursuant to rule 3 of the Security Rules. Accordingly, the Court ruled that the appeal should be upheld. In addition, the Court ordered that the costs of the proceedings be awarded to the petitioner. The final order therefore permitted the appeal and directed the payment of costs.