# P. BALAK-OTAIAH v. THE UNION OF INDlA AND OTHERS

- **Citation:** [1958] 1 S.C.R. 1052
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Bench:** S. R. Das, Venka!Tarama Aiyar, S. K. Das, A. K. Sarkar, Vivian Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-balak-otaiah-v-the-union-of-indla-and-others-1393
- **Pages:** 15

## Headnote

&i.ilway Services-Rules for safeguarding national securityConstitutionality-Employee engaged in subversive activity-Ter.
mination of Service-Validity-.-Railway Services (Safeguarding
of National Security) Rules, 1949 R. 3, 7,-Constitution of India,
Arts. 14, 19(l)(c), 311.
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 follow : -
"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 (COil)munist sponsored) and were
thickly associated with communits 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(J)(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.
Held, that the word 'subversive activities' occurring in Rule
3 of the Railway Services (Safeguarding of National Security)
Rules, 1949, in the context of the objective of natio11al security
which thev have in view, are sufficiently precise in import to
S.C.R.
SUPREME COURT REPORTS
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 oi 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 ftules 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 ngr 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 Lat v. The State of Uttar Pradesh and the Union of India,
[1955] 1 S.C.R. 26 and State of Bombay v. Saubha

## Text

1951
v ... mbua.
1052
SUPREME COURT REPORTS
P. BALAK-OTAIAH
v.
THE UNION OF INDlA AND OTHERS
(and connected appeals)
[1958]
(S. R. DAS, C. J., VENKA!TARAMA AIYAR, S. K. DAS, A. K.
SARKAR AND VIVIAN BOSE JJ.)
&i.ilway Services-Rules for safeguarding national securityConstitutionality-Employee engaged in subversive activity-Ter.
mination of Service-Validity-.-Railway Services (Safeguarding
of National Security) Rules, 1949 R. 3, 7,-Constitution of India,
Arts. 14, 19(l)(c), 311.
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 follow : -
"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 (COil)munist sponsored) and were
thickly associated with communits 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(J)(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.
Held, that the word 'subversive activities' occurring in Rule
3 of the Railway Services (Safeguarding of National Security)
Rules, 1949, in the context of the objective of natio11al security
which thev have in view, are sufficiently precise in import to
S.C.R.
SUPREME COURT REPORTS
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 oi 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 ftules 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 ngr 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 Lat 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
I'he Queen v. Christchurch, [1848] 12 Q. B. 149 referred to.
CIVIL APPELLATE J9RISDICTION: Civil Appeals Nos. 46
to 48 of 1956.
Appeal from the judgment and order dated November
16, 195 I, 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.
1957
P. BaT.akotaiah
v.
The Union of
Indin nncl Others
1967
P. Balako1aiaA
v.
1054
SUPREME COURT REPORTS
[1958]
R. Ganapathi Iyer and R. H.
Dhebar, for the respon·
dent (Ir\ all the appeals).
Ti.. Union•/ India
1957. December 3.
and O#Aera
1.
The following
Judgment of the
_
Court was de 1vered by
Venktltarama
.A.iyar J.
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 ga.ve 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 conti·
nued 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 Na.tional 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 tJiese
appeals, as it is the validity of these rules that is the main
point for determination by us. Rules 3, 4, S 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 doul:>ts about his reliability, may be compulsorily retired from service, or have his service terminated
by the competent authority after he has been given due
S.C.R.
SUPREME COURT REPORTS
1055
notice ·or pay in lieu of such notice in accordance with the
1951
terms of his service agreement:
P. BaWotaiah
Provided _that a membe~ of t~e Railway _Service shall The unZ:.. of Indio
not be so retired or have his service so termmated unless
and OllM!ra
the
competent authority is satisfied that his retention in
public service is prejudicial to national security, and unless, ''A=1'."4
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 termina.ted 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.
S. Nothing cantained 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 rules.
7~ 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 under R. 3
1056
SUPRE:V!E COURT REPORTS
[1958]
1957
of the Security Rules stating that h1 view of the facts recited
P. Ba/.akotaiah
therein. there was reason to believe that the appellant was
Th U ~-
,, 1 a· engaged in subversive activities and calling upon him to
enlonoJ111a...........
,
and Otha•
show cause why his services should not be terminated. He
l"enkatamma
was also placed under suspension from that date. On July
Aiya, J.
19.
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
M4nager 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, 1951, 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 a.ttack.
The petition was heard along with others, in which,
the same questions were raised, and by their judgment dated
November I 6, 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:
S.C.R.
SUPREME COURT REPORTS
1057
R. 148(3): Other (non-pensionable) railway servants:
1957
"The service of other (non-pensionable) railway servants P. Balakomiah
v.
shall be liable to termination on notice on either side for The Union of India
I
"d
h
bl
Sh
·
·
h
andOthers
t le per10 s s own
e.ow.
uc
notice 1s not,
owever, re_
quired in cases of summary dismissal or discharge under the
Ven~tarama
provisions of service agreements, retirement on attaining the
Aiyar J.
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 Administration to
terminate the service of a Railway servant by paying him the
pay for the period of notice".
The learned Judges held that the appeJlants 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
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. 13'3(l)(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 ac~ually in issue, it
should have been held that the Security Rules were repugnant to Arts. 14, 19(l)(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 tha.t 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
SUPREME COURT REPORTS
[1958]
1957
The points for decision in these appeals are:
P. BalakotawA
'!·
.
(I) Whether the orders terminating the services of the
Ti.. ~a;;.:{ 1"'""appellant can be upheld under R.
148 of the Railway
a
'
Establishment Code;
(II) Whether the Security Rules are bad as infringing
(a) Art. 14, (b) Art. 19(l)(c) and (c) Art. 311 of the Constition;
(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.
(I). 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
termina.ting 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/21/MP/82 dated 6-7-1950
and am of the opinion that you are engaged and associa.ted
with others in subversive activities in such manner 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 action was taken under R.
S.O.R.
SUPREME COURT REPORTS
1059
148 of the Railway Establishment Code. They only contend1951
ed that the Security Rules were valid. In view of the above, P. Balakotaiah
the criticism of Mr. Umrigar for the
appellants
that the The uJ;.o/ I"'1ia
judgment under appeal proceeds on a ground which was,
an4 DIMr•
not merely, not in the contemplation of the authorities when
VenhJtarama
they passed the orders in question, but was not even raised
Aiyar J.
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 provision 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 tha.t rule, and were liable to be discharged in accordance therewith. But this reasoning ignores
tha.t under cl. 00) 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 dispute that the action was
1060
SUPREME COURT REPORTS
[1958]
19$7
really taken under R.
3 of the Security Rules, but they
p, Balakotaiak argued that the power to terminate the service under r. 3
,
v.
was not something different from and independent of the
ifhe Union o/ 1.,Ua power to discharge, conferred by R. l 48, and that an order
a~ Othm
passed under R. 3 was, on its own terms, one made under
Venkatorama
R. 148(3). The basis for this contention is the provision in
AiyarJ.
R. 3 that the service may1be terminated in accordance wfth
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 agree·
ment 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 argu·
ment 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 mention 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 diffi·
cult 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 pur·
pose, 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
S.C.R.
SUPREME COURT REPORTS
1061
give validity to such order. Indeed, that has been held in
l9S7
Sambandam v. General Manager, S. I. Ry.(') and Prasadi P. Balakvtaiah
v. Works Manager, Lillooah(') and that is also conced-p11e Uni:,.· of Inl.ia
ed by Mr. Ganapathy Iyer. If then the power to termiand ®w•
nate the service under the Security Rules is different from
Ven/;;;rama
the power to discharge under R. 148 when the procedure
.A.iyar J.
prescribed ,therein is not followed, it must be equa11y 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 tha.t
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.
(Ha). 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 prescribed a spedal 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 activi-
(1) I.LR [1953] Mad. 229.
(') A.I.R. 1957 Cal. 4.
1062
SUPREME COURT REPORTS
[1958)
1967
ties could be brought under the impugned rules. The notice,
P. Balakataiah
so far as it is material, runs as follows: -
v.
"Wh
.
h
. .
h
The Unim> of ln4i4
ereas m t e opm1on of t e ..................... General
and Otht"
Manager, you are reasonably suspected to be a member and
VtnkatarGma office secretary of the B. N. Rly. Workers' Union (Commu-
..tiyar J.
nist 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 Staie 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 dassification 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('), 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 wilh the object of ensuring "speertv
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('), wherein it was
held 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 Chaudhry and others v. The
State of Bihar('), and there is no need to repeat them. The
only point that calls for decision in these appeals is whether
(') [1952] S.C.R. 284.
(') A.LR. 1956 Mad. 220.
(') [1955] 1 S.C.R. 1045, 1049.
S.C.R.
SUPREME COURT REPORTS
1063
the classification of persons on the basis of subversion acti1957
vities is too vague to be the foundation of a valid classificaP. Balakotaiah
tion. Mr. Umrigar insists that it is, but his elaborate argu- The unio;. of India
ment amounts to no more than this that the expression
and Others
"subversive activities" may take in quite a variety of activiVenkatarama
ties, and that its contents are therefore wide. It may be that
Aiyar J •
the connotation of that expression is wid~. but that is not
to say that it is vague or indefinite. But whatever the position
if the words "subversive activities" had stood by themselves,
they are sufficiently qualified in the Security Ru!es to be
definite. Tqose 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 na.tional 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 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,
1064
SUPREME COURT REPORTS
[1958]
1957
but because he was engaged in subversive activities. We hold
P. Balakotaiah
that Security Rules are not illegal as being repugnant to
The Uni:;. of India Art. 14·
and Others
(llb.) It is next contended that the
impugned
orders
v.nbllarama
are in contravention of Art. 19( I )(c), and are therefore void .
.Aiyar J.
The argument is that action has been taken against the
appellants under the rules, because they arc 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 guaranteed 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. l 9(1)(c) has
been infringed. The orders do not prevent them from continuing to be Communists or trade unionists. Their rights in tha.t
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. 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
rejected.
(Ile). It is then contended that the procedure prescribed 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 qf 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, and that it is only when the order is by way of
$.C.R.
SUPREME COURT REPORTS
10Gi5
punishment that it is one of dismissal or removal under that
Article. Vide Satish Chandra Anand v. Union of India('),
Shyam Lal v. The State of Uttar Pradesh and the Union of
India('), State of Bombay v. Saubhagchand M. Doshi('), and
Parshotam Lal Dhingra v. Union of India('). The question
as to what would .amount to punishment for
purposes of
Art. 311 was also fully considered in Pa_r$botam Lal Dhingra's
ca.re (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 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 Art. 311. This contention also
must be .overruled.
(Ill) It is next contended by Mr.
Umrigar that the
charges which were made against the appellant in Civil
Appeal No. 46 of I 956 in the notice dated July 6, 1950, have
reference to events which .took place prior to
t11~ coming
into force of the Security Rules, which was on May 14, 1949,
and that the order terminating the services of the appellant
based ther~on is bad as giving retrospective operation to the
<'.) [1953] · S.C.R. 655.
(') Civil Appeal No. 182 of 1955.
(-) [1955] 1 S.C.R. 26.
(') Civil Appeal No 65 of 1957
L/P(
).~SCI- 3
.
•
1957
P. Balttkotaialt
v.
Tlie Union qf Indi1
and Otliers
v enkatarama
Aiyar J.
1066
SUl'REME COUR~' ItEl'OR'.I.'S
[1958)
w•·1
rules, and that the same is not warranted by the terms there1'. 11 .. 1ni-.4";,,,,
of. Now, the rules provide that action can be taken under
n,. Uni:~ n/ bvli" them, if the employee is engaged or is reasonably suspected
''1ul Otlu-,·8
to be engaged in !'!ubversive activities. Where an authority
Vrnm'a"''"''
has to form an opinion that an employee is likely to be en-
.!iynrJ.
gaged 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 e.1·se
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 docs
not render their operation retrospective. Vide the observations of Lord Denman C. J. in J'he Queen v. St. Mary,
IVhiteclwpel (') and The Queen v. Christchurch ('). 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 appellanK 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 forina pauperi.1· will also pay the court fees payable to the
Government.
A ppt:als disn1isse<f.
1
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