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PATNA HIGH COURT
V.Ramaswami and Sarjoo Prasad JJ.
Ajit Kumar Mukherji
Versus
Chief Operating Superintendent, East Indian Railway
Miscellaneous Judicial Case No. 98 of 1952 ; 134 of 1952 ; 135 of 1952 ;
Decided On : DECEMBER 09, 1952
CONSTITUTIONAL LAW - ARTICLE 311(2) AND 320(3) - RAILWAY SERVICES (SAFEGUARDING OF NATIONAL SECURITY) RULES, 1949 - TERMINATION OF SERVICE - WHETHER VIOLATES ARTICLES 311(2) AND 320(3) OF THE CONSTITUTION - INTERPRETATION OF RULES - RATIO DECIDENDI OF HIGH COMMISSIONERS FOR INDIA & PAKISTAN V/S. I. M. LALL (75 IND. APP. 225 (P. C.)) - APPLICABILITY TO THE PRESENT CASE - DISTINCTION BETWEEN TERMINATION OF SERVICE AND DISMISSAL OR REMOVAL OR REDUCTION IN RANK - REQUIREMENT OF SECOND NOTICE - CONSULTATION WITH UNION PUBLIC SERVICE COMMISSION - VALIDITY OF NATIONAL SECURITY RULES.
Fact of the Case:
Petitioners, railway employees, challenged the termination of their services under the Railway Services (Safeguarding of National Security) Rules, 1949, alleging violation of Articles 311(2) and 320(3) of the Constitution.
Finding of the Court:
1. The termination of service under the National Security Rules did not constitute dismissal, removal, or reduction in rank as contemplated under Article 311(2) of the Constitution. 2. The requirement of a second notice, as held in High Commissioners for India & Pakistan v. I. M. Lall (75 Ind. App. 225 (P. C.)), was not applicable to the National Security Rules due to the distinct nature of the proceedings and the absence of a choice of punishment. 3. Consultation with the Union Public Service Commission was not necessary as the termination of service was not a disciplinary action and the President had the power to make regulations exempting certain matters from consultation. 4. The National Security Rules were validly enacted and adapted by the President after the Constitution came into force.
Issues: 1. Whether the termination of service under the National Security Rules violated Article 311(2) of the Constitution. 2. Whether a second notice was required under the National Security Rules, as per the ratio of High Commissioners for India & Pakistan v. I. M. Lall (75 Ind. App. 225 (P. C.)). 3. Whether consultation with the Union Public Service Commission was necessary under Article 320(3) of the Constitution. 4. Whether the National Security Rules were validly enacted and adapted after the Constitution came into force.
Ratio Decidendi: 1. Article 311(2) applies only to cases of dismissal, removal, or reduction in rank, which are technical terms with specific meanings. Termination of service under the National Security Rules is distinct from these actions and is governed by separate provisions in the Railway Establishment Code. 2. The requirement of a second notice under Article 311(2) is not applicable to the National Security Rules because the proceedings under these rules are different from those under Article 311(2). The National Security Rules allow for termination of service based on reasonable suspicion and do not provide for a choice of punishment, making the second notice redundant. 3. Consultation with the Union Public Service Commission under Article 320(3) is not required in this case because the termination of service is not a disciplinary action. Additionally, the President has the power to make regulations exempting certain matters from consultation, and the National Security Rules fall within this exemption. 4. The National Security Rules were validly enacted by the Governor-General under the Government of India Act, 1935, and subsequently adapted by the President after the Constitution came into force. This adaptation was permissible under the proviso to Article 320.
Final Decision: The Court dismissed the petitions, holding that the termination of service under the National Security Rules did not violate Articles 311(2) and 320(3) of the Constitution. The Court found that the termination of service was not a dismissal, removal, or reduction in rank, that a second notice was not required under the National Security Rules, that consultation with the Union Public Service Commission was not necessary, and that the National Security Rules were validly enacted and adapted.
Ramaswami, J.
1. In these applications, which we have heard together, an identical question of law arises, namely, whether the order, terminating the service of the petitioner in each case, violates the provisions of Articles 311(2) and 320(3) of the Constitution of India, and therefore illegal and without jurisdiction.
2. In M. J. C. No. 98 of 1952 the petitioner is Ajit Kumar Mukherji, who was employed as a clerk in the office of the Divisional Superintendent of Transportation at Dhanbad, since July, 1942. On 12-7-1950 the petitioner received a letter No. PC 142 BI (11) which reads as follows:-
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"Whereas in the opinion of the Competent Authority as defined in Rule 2, Railway Service (Safeguarding of National Security) Rules, 1949 who in your case is the Chief Operating Supdt. EIR. Calcutta), you are reasonably suspected to be a member of the Communist party of India and associated with other subversive activities in such a manner as to raise doubts about your reliability, you took very active part in connection with the threatened Railway Strike of March, 1949, organised by the E. I. Railroad workers Union controlled by the Communist party of India whose avowed object is sabotaging the essential supplies and installations including Railway; You were the Secretary of the Dhanbad Branch of the above mentioned Union.
You are hereby required to state within 14 days of the receipt of this Notice whether you accept or deny the accuracy of the above allegation. If you do not reply within that period It will be assumed that you admit the allegation. In either case, you may within the same period submit any representation you wish to make as to why your services should not be terminated under the said Rules.
If after considering your representation the competent authority decides that no further action should be taken against you, you will be informed accordingly.
If after considering your representation the competent authority considers that there are sufficient grounds for taking further action, the materials on record together with your representation will be referred to the Committee of Advisers set up by the Government of India for this purpose. You are further asked to state whether you wish to be heard in person by the Chief Operating Supdt., or by the Committee of Advisers before orders are passed on your case.
If you send no reply within 14 days of the reciept of this Notice, orders will be passed on your case without any further reference to you."
On 22-6-1950, the petitioner made a representation denying the allegation that he was a member of the Communist party of India, or that he took any part in the threatened railway strike of March 1949. The petitioner admitted that he was an ordinary member of the East Indian Railroad Workers Union which was a recognised body and duly affiliated to All India Railway Mens Federation.
3. It is said that in September 1950 the petitioner had an interview with the Chief Operating Superintendent at Calcutta. Thereafter, a notice of termination of service was served on the petitioner which was to the following effect:
"I have considered your representation dated 22-6-50 in repiy to the Charge sheet dated 12-6-50 and am of the opinion that you are associated 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, Railway Services (Safeguarding of National Security) Rules, 1949.
2. You are, therefore, hereby given one months pay in lieu of notice in accordance with the terms of your appointment and your service will terminate on 1-12-1950.
3. You are to hand over to your immediate Superior all Railway property, if any, which is in your possession, and let him know where and how you wish to be settled up and receive payment of your dues.
4. You a
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