Full Judgment Text
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PETITIONER:
P. BALAKOTAIAH
Vs.
RESPONDENT:
THE UNION OF INDIA AND OTHERS(and connected appeals)
DATE OF JUDGMENT:
03/12/1957
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
BOSE, VIVIAN
DAS, SUDHI RANJAN (CJ)
DAS, S.K.
SARKAR, A.K.
CITATION:
1958 AIR 232 1958 SCR 1052
ACT:
Railway Services-Rules for safeguarding national
security-Constitutionality-Employee engaged in subversive
activity-Termination of Service-Validity-Railway Services
(Safeguarding of National Security) Rules, 1949, R. 3,
7--Constitution of India, Arts. 14,19(1)(c), 311.
HEADNOTE:
The Services of the appellants who were Railway servants,
were terminated for reasons of national security under S. 3
of the Railway Services (Safeguarding of National Security)
Rules, 1949. Notices served on them under that section to
show cause charged them 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, B. N. Mukherjee, R. L. Reddi, 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". Orders of suspension were passed on them. They
made their representations. The committee of Advisers on
enquiry and after examining them found that the charges were
true and the General Manager acting on its report terminated
the services of the appellants, giving them a month’s salary
in lieu of notice. The appellants moved the High Court
under Art. 226 of the Constitution and contended that the
Security Rules contravened Arts. 14, 19(1)(c) and 311 of the
Constitution and as such the orders terminating their
services were void. The High Court did not decide the
Constitutional validity of the Security Rules and dismissed
the petitions on other grounds.
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Held, that the words ’subversive activities’occurring in
Rule 3 Of the Railway Services (Safeguarding of National
Security) Rules, 1949, in the context of the objective of
national security which they have in view, are sufficiently
precise in import to
1053
sustain a valid classification and the Rules are not,
therefore,invalid as being repugnant to Art. 14 of the
Constitution.
Ananthanarayanan v. Southern Railway, A. I. R. 1956 Mad.
220, disapproved.
The charge shows that action was taken against the
appellants not because they were Communists or trade
unionists but because they were engaged in subversive
activities. The orders terminating their services could
not,. therefore, contravene Art. 19(1)(c) of the
Constitution since they did not infringe any of the rights
of the appellants guaranteed by that Article which remained
precisely what they were before.
Article 311 of the Constitution can apply only when
there is an order of dismissal or removal by way of
punishment. As the terms of employment of the appellants
provided that their services could be terminated on a proper
notice and R. 7 Of the Security Rules preserved such rights
as benefits of pension, gratuities and the like to which an
employee might be entitled under the service rules, there
was neither premature termination nor forfeiture of benefits
already acquired so as to amount to punishment. 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 neither one of
dismissal nor removal within the meaning of Art. 311 of the
Constitution. Article 311 had, therefore, no application.
Parshotam Lal Dhingra v. Union of India, Civil Appeal
No. 65 Of 1957, relied on.
Satish Chandra Anand v. Union of India, [1953] S. C. R.
655, Shyam Lal v. The State of Uttar Pradesh and the Union
of India, [1955] 1 S. C. R. 26 and State of Bombay v.
Saubhagchand M. Doshi, Civil Appeal No. 182 Of 1955,
referred to.
Although the Rules are clearly prospective in character,
materials for taking action against an employee thereunder
may be drawn from his conduct prior to the enactment of the
Rules.
The Queen v. St. Mary, Whitechapel, (1848) 12 Q. B. 120
and The Queen v. Christchurch, [1848] 12 Q. B. 149, referred
to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil 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. 45,1568 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).
1957. December 3. The following Judgment of the Court
was delivered by
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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 ss. 241(2),
247 and 266(3) 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
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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.
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 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.
5. 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.
7. Any person compulsorily retired from service or whose
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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
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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 8,1950, 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 3,1951, 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
Arts. 14, 19 (1)(c) 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. 148(3) 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-r.(3), that they had
been paid one month’s wages instead of notice under sub-
r.(4), and that, accordingly, the impugned orders were intra
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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 orders on
a certificate under Art. 132 (1) and Art. 133(1)(c) 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
Arts. 14, 19(1) (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;
(II)Whether the Security Rules are bad as infringing (a)
Art. 14, (b) Art. 19(1)(c) and (c) Art. 311 of the
Constitution;
(III)Whether the impugned orders are not valid, even
according to the Security Rules; and
(IV) Whether those orders were not passed by the
competent authorities.
(1). 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. Con/T/2 I /MP/82 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 above,the criticism of Mr. Umrigar
for the appellants that the judgment under appeal proceeds
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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. 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 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. 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 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. 148(3). 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
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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 v. General Manager,
S. I. Ry. (1) and Prasadi v. 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
Art. 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 Art. 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 Art.14. 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) I.L.R. [1953] Mad. 229.
(2) A.I.R. 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, B.N. 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
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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 v. 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 Art. 14 as a valid
classification, and on the decision of the Madras High Court
in Ananthanarayanan v. Southern Railway(2), 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 Art. 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 v. The
State of Bihar(3), and there is no need to repeat them. The
only point that
(1) [1952] S.C.R. 284. (2) A.I.R. 1956 Mad. 220.
(3) [1955]1 S.C.R. 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 v.
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 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
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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 Art. 14.
(IIb). It is next contended that the impugned orders are
in contravention of Art. 19(1)(c), 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 Art.
19(1)(c). 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 Art. 19(1)(c) 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 Art. 31 1, 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 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 Art. 311, and that they
are, in consequence, void. But Art. 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 Art. 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 v. Union of India (1), Shyam Lal
v. The State of Uttar Pradesh and the Union of India (2),
State of Bombay v. Saubhagchand M. Doshi (3), and Parshotam
Lal Dhingra v. Union of India (4). The question as to what
would amount to punishment for purposes of Art. 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-
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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 Art. 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) [1953] S.C.R. 655-
(2) [1955] 1 S.C.R. 26,
(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 reason;ably 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 v. St. Mary, Whitechapel (1) and
The Queen v. 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) [1848] 12 Q. B. 120; 116 E.R.811.
(2) [1848] 12 Q.B, 149; 116 E.R. 823, 825.
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