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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. K.V Veakatasubramania Aiyar for Messrs. Rao and Reddi for Petr.
  • Mr. O.T.G Nambiar for Messrs. King and Partridge for Respt.
Judges
  • Rajatnannar, C.J
  • Venkatarama Ayyar, J.
Acts
  • rule 2 of the Railway Services (Safeguarding of National Security) Rules, 1919
  • 55 of the Civil Services (Classification Control and Appeal) Rules,
  • National Security Rules and of Art. 311 of the Constitution
  • provisions of S. 240(3) of the Government of India Act, 1935
  • S. 240(3) of the Government of India Act, 193 51
  • S. 240(3) of the Government of India Act, 1935,
  • 240(1) of the Government of India Act, 1935
  • S. 240(3) of the Government of India Act,
  • National Security) Rules, 1349.You
  • National Security Rules, 1949.
  • S. 96-B(1) of the 1919 Act
  • S. 96-B of the 1919 Act.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. K.V Veakatasubramania Aiyar for Messrs. Rao and Reddi for Petr.
  • Mr. O.T.G Nambiar for Messrs. King and Partridge for Respt.
Judges
  • Rajatnannar, C.J
  • Venkatarama Ayyar, J.
Acts
  • rule 2 of the Railway Services (Safeguarding of National Security) Rules, 1919
  • 55 of the Civil Services (Classification Control and Appeal) Rules,
  • National Security Rules and of Art. 311 of the Constitution
  • provisions of S. 240(3) of the Government of India Act, 1935
  • S. 240(3) of the Government of India Act, 193 51
  • S. 240(3) of the Government of India Act, 1935,
  • 240(1) of the Government of India Act, 1935
  • S. 240(3) of the Government of India Act,
  • National Security) Rules, 1349.You
  • National Security Rules, 1949.
  • S. 96-B(1) of the 1919 Act
  • S. 96-B of the 1919 Act.
See more information ...
Smart Summary

Structured Summary of the Opinion (Delivered by Venkatarama Ayyar J.)

Factual and Procedural Background

The petitioner was employed as a wireman in the Marine Department of the South Indian Railway Company. A notice dated 27-02-1950, issued under the Railway Services (Safeguarding of National Security) Rules, 1949, was served on the petitioner (service recorded as 11-03-1950). That notice set out four charges alleging subversive activities, invited the petitioner to accept or deny the allegations within 14 days, permitted submission of representations, and asked whether he wished to be heard in person by the competent authority or by the Committee of Advisers.

The petitioner submitted a written explanation on 16-03-1950. On 06-09-1950 the respondent issued an order stating that, having considered the representation, he was satisfied that the petitioner was engaged in subversive activities and that retention was prejudicial to national security; the order recited prior approval of the President and stated that the petitioner's services should be terminated under Rule 3 of the Safeguarding Rules. The order granted one month's pay in lieu of notice and stated that service would terminate on 16th September 1960 (as recorded in the order text).

The petitioner challenged the validity of the 06-09-1950 order by seeking a writ under Article 226, contending that under the Safeguarding Rules and Article 311 he was entitled to a further notice of the action proposed and that no such notice had been given. The respondent contended that the 27-02-1950 notice satisfied the rules, that pay in lieu of notice meant the services had validly been terminated under ordinary railway rules, and that the petitioner had an alternative remedy by suit, so writ relief was not maintainable.

Legal Issues Presented

  1. Whether the dismissal/compulsory retirement order dated 06-09-1950 complied with the Railway Services (Safeguarding of National Security) Rules, specifically Rules 3 and 4.
  2. Whether the notice dated 27-02-1950 constituted the notice required by Rule 4(b) (informing the servant of the action proposed) and whether the petitioner was given a reasonable opportunity under Rule 4(c) to show cause.
  3. Whether Article 311 (and by analogy Section 240(3) of the Government of India Act, 1935) applies and whether the Safeguarding Rules are compatible with or void under Article 311(2).
  4. Whether, alternatively, the respondent's reliance on Rule 148 of the Indian Railway Establishment Code (termination on notice and pay in lieu) and Article 310 (service held at pleasure) means the order was a simple termination and not dismissal/removal subject to Article 311.
  5. Whether the petitioner should be denied writ relief because an alternate remedy (a suit) was available.

Arguments of the Parties

Petitioner's Arguments (as stated in the opinion)

  • Under the Safeguarding Rules and Article 311 of the Constitution (re-enacting S.240(3) of the Government of India Act, 1935), before a final order under Rule 3 could be passed there must be a notice in terms of Rule 4(b) informing the servant of the action proposed and an opportunity under Rule 4(c) to show cause. No such notice (in the required sense) was given.
  • The 27-02-1950 notice was only a call for explanation of charges and did not constitute the post-enquiry notice of proposed action which Rule 4(b) requires.
  • If the Court did not accept that construction of Rule 4, the petitioner relied directly on Article 311(2) which reenacts Section 240(3), rendering the statutory protective procedure binding and making the Safeguarding Rules void to the extent they contravene Article 311(2). (The Court did not need to decide this because it held Rule 4 was equivalent in effect to Section 240(3).)

Respondent's Arguments (as stated in the opinion)

  • The notice dated 27-02-1950 satisfied the requirements of Rule 4 because it stated that the petitioner was liable to have his services terminated under Rule 3; thus no further notice was necessary.
  • The respondent had paid the petitioner one month's wages in accordance with the terms of service; therefore, in substance this was a termination under Rule 148 of the Indian Railway Establishment Code (termination on notice or pay in lieu) and not a dismissal requiring Article 311 protections.
  • The petitioner had an alternative remedy by way of suit, and therefore the writ of certiorari should not be entertained.
  • The respondent also asserted (in affidavit) that action was taken and the procedure followed under the Safeguarding Rules and that those rules were not void under the Constitution.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
High Commissioner for India v. I.M. Lall (Privy Council) Interpreting S.240(3): requirement of a further notice after an inquiry when a definite conclusion and provisional punishment are reached; two-stage protection (inquiry then notice of proposed action and opportunity to show cause). The court found the principles in this decision directly applicable by analogy to Rule 4(b) and (c) of the Safeguarding Rules and held that the present case fell within those principles; accordingly the 06-09-1950 order was illegal for lack of the required post-inquiry notice.
I.M. Lall v. Secretary of State (Punjab High Court) Decision that suit was decreed on ground of no proper inquiry (stage in litigation history of I.M. Lall). Cited as part of the appellate history of the I.M. Lall litigation to show statutory protection and procedural requirements under S.240(3) were enforced by courts.
Secretary of State for India v. I.M. Lall (Federal Court) Majority view that S.240(3) requires a further notice after inquiry informing the civil servant of the proposed punishment and opportunity to show cause. The court quoted and relied on the Federal Court's exposition of the statutory right and used it to construe the analogous provisions of the Safeguarding Rules (Rule 4).
Venkata Rao v. Secretary of State for India Application of the 'held at pleasure' rule: breach of rules did not necessarily create a right of action for damages for wrongful dismissal. Used in the discussion of Art. 310 and the historical background of 'pleasure' tenure to explain limits and exceptions (i.e., that the Constitution creates express exceptions).
Rangachari v. Secretary of State for India An order of dismissal by an authority subordinate to the appointing authority is illegal (statutory constraint on pleasure tenure). Referred to illustrate exceptions to the 'pleasure' rule and the effect of statutory protections.
Shenton v. Smith Early authority applying the rule that public offices are held at the pleasure of the Crown and hence terminable at will without civil action for wrongful dismissal. Referred to in sketching the historical and doctrinal background to Article 310 and the general 'pleasure' principle.
De Doshe v. Reg (Lord Watson quoted) Observation that contracts of Crown servants import the condition that the Crown may dismiss; exclusion of that power by express stipulation would violate public policy. Quoted to support the historical principle that public office tenure is subject to the Crown's power of dismissal and to situate statutory exceptions.
In the matter of the Petitions of Right of Charles Lawrence Hales; Hales v. The King Applied the rule that a premature termination of service under Crown appointment yields no action for damages unless statutory terms provide otherwise. Referred to support the historical rule and its consistent application in Indian contexts.
Denning v. Secretary of State for India in Council Where a contract was for a period, premature termination without misconduct did not give rise to an action for damages against the Crown. Used in the historical discussion of the limits of private contractual remedies against the Crown/government employers.
Gould v. Stuart Where a statute prescribes terms of service and the mode of dismissal, that statutory scheme governs rights of the parties (i.e., statutory exceptions to the 'pleasure' rule). Referred to demonstrate that statutory provisions can and do qualify the general rule of pleasure tenure.
Nagpur Electric Co. v. Anand Vishnu Statement that termination of a contract in due course according to its terms is neither dismissal nor discharge (distinction between termination under contract and dismissal). Cited by respondent and considered by the court; court accepted the distinction but held the question whether termination or dismissal depended on facts and context and found this was a compulsory retirement under the Safeguarding Rules.
Reg. v. Surrey Justices Principle that certiorari should be granted ex debito justiciae when applied for by an aggrieved party even if an alternate remedy exists. Relied upon in concluding that writ relief was appropriate despite the availability of alternative remedies, because the petitioner was an aggrieved party and rights were infringed.
Rashid Ahmed v. Municipal Board, Kairana Observation that the existence of an adequate legal remedy is a factor to be taken into account when granting writs (a discretionary consideration). Used to frame the court's approach to the respondent's contention about alternative remedies; the court treated alternative remedies as a factor but not an absolute bar.
The King v. The Postmaster General, ex parte Carmichael (Avory J.) Authority supporting the proposition that certiorari should be granted to an aggrieved party as a matter of justice even where an appeal or alternate remedy exists. Quoted to strengthen the court's conclusion to grant certiorari in favour of an aggrieved party despite an alternative remedy.

Court's Reasoning and Analysis

The court proceeded in a structured manner:

  1. Identification of the governing rules: The court noted that Rules 3 and 4 of the Railway Services (Safeguarding of National Security) Rules were the provisions relevant to compulsory retirement (Rule 3) and to the procedure to be followed where reasonable grounds exist (Rule 4).
  2. Interpretation of Rule 4 vis-à-vis authority on S.240(3): The court examined the principles laid down in the I.M. Lall line of authorities interpreting S.240(3) of the Government of India Act, 1935, and accepted the two-stage approach: (a) an inquiry into charges, and (b) after the inquiry, if a punishment is tentatively decided, a further notice informing the civil servant of the action proposed with an opportunity to show cause. The court held that Rule 4(b) and (c) of the Safeguarding Rules embodied the same protection.
  3. Application to the present notice and order: The court analysed the notice dated 27-02-1950 and concluded it was a preliminary call for explanation of the charges (i.e., an antecedent stage) rather than the post-inquiry notice of proposed action that Rule 4(b) requires. Paragraphs 3, 4 and 5 of the notice showed that no final action had been decided upon and that representations might be referred to advisers; the notice did not communicate a provisional decision to impose compulsory retirement nor did it present the findings of an inquiry as the basis for a further representation.
  4. Conclusion on procedural compliance: Because the procedural step required by Rule 4 (a specific written notice of the action proposed and an opportunity to show cause after a conclusion/provisional decision) had not been taken, the final order of 06-09-1950 (expressly purporting to be passed under Rule 3) violated the procedural prescription and was illegal and inoperative.
  5. Consideration of alternative characterization (termination under R.148): The court examined the respondent's contention that the effect of payment of one month's pay was to treat the matter as a simple termination under Rule 148 of the Indian Railway Establishment Code (termination on notice / pay in lieu). The court found the record showed the action was consistently taken under the Safeguarding Rules (the notice and final order both invoked the Safeguarding Rules; charges were framed and referred to a committee). The court concluded the order was not a mere contractual termination under R.148 but an order of compulsory retirement under Rule 3; the one month's pay was payable under Rule 7 of the Safeguarding Rules as compensation/solatium when a final order under Rule 3 is made.
  6. Interaction with constitutional doctrine (Article 310 and Article 311): The court recited the historical doctrine that public offices are held at the pleasure of the Crown (and its statutory/constitutional successors) but observed that Article 310 is subject to express exceptions in the Constitution. Article 311 (and Article 311(2) in particular) prescribes a procedure protecting civil servants from summary dismissal; since Rule 4 of the Safeguarding Rules carried the same protection, there was no necessary conflict to decide; in any event the court found Rule 4 to be consistent with the protective requirement.
  7. On alternative remedy and writ relief: The court acknowledged that the existence of an adequate alternative remedy is a discretionary factor against granting a writ, but relied on established authorities to hold that where an aggrieved party's statutory procedural rights have been infringed, certiorari is properly granted. Applying that principle, the court exercised its discretion to issue the writ.
  8. Relief and costs: On these bases, the court set aside the 06-09-1950 order and awarded costs and an advocate's fee of Rs. 100 to the petitioner.

Holding and Implications

CORE HOLDING: The order dated 06-09-1950 purporting to terminate the petitioner's service under Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949, was held to be illegal and inoperative and was set aside.

Implications and Consequences

  • Direct effect on the parties: The final order of 06-09-1950 was quashed. The petitioner was awarded costs and an advocate's fee of Rs. 100.
  • Reasoning-based consequence: The court treated the 27-02-1950 notice as preliminary and required a further post-inquiry notice under Rule 4(b) and an opportunity under Rule 4(c) before a final compulsory retirement order under Rule 3 could be validly made. Because that procedure was not followed, the compulsory retirement order failed.
  • Broader precedent: The decision applied and followed the established line of authority (notably High Commissioner for India v. I.M. Lall) concerning statutory protection against dismissal and the two-stage procedural requirement; the opinion does not purport to create a new rule beyond applying those authorities to the Safeguarding Rules. The judgment therefore resolves the dispute between the parties by applying existing principles rather than announcing a novel doctrine.

Note: This summary is restricted strictly to the content of the provided opinion and does not add information that is not contained in the original text.

Show full summary ...

    G. Sambandam v. The General Manager, South Indian Railway, Tiruchirapalli.

    (Delivered by Venkatarama Ayyar J.)

    The petitioner was employed as a wireman in the Marine Department of the South Indian Railway Co. On 11-3-1950 he was served with a notice dated 27-2-1950 issued by the respondent under the Railway Services (Safeguarding of National Security) Rules, 1949. The contents of that notice so far as they are material for purposes of this petition are as follows:

    “Whereas in the opinion of the ‘competent authority’ as defined in rule 2 of the Railway Services (Safeguarding of National Security) Rules, 1919 (who in your case is the Chief Mechanical Engineer, S. I. Railway, Golden Rock) there are reasonable grounds (which are given below) for believing that your are engaged in subversive activities and that consequently you are liable to have your services terminated under R. 3 of the said rules;

    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 would be assumed that you admit the allegation. In either case, you may within the same period, submit any representation you wish to make an to why your services should not be terminated under the said rules, (copy attached).

    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 me or by the Committee of Advisers before orders are passed on your case.”

    Four charges were set out in this notice. On 16-3-1950 the petitioner sent a written explanation to the several charges. On 6-9-1950 the respondent passed the following order:

    “I have considered your representation ill reply to my letter No. 8 37/3 dated the 27th February 1950 and am of the opinion that you are engaged in subversive activities in such a 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 R. 3 of the Railway Services (.Safeguarding of National Security) Rules, 1349.

    You are, therefore, given a month's pay in lieu of notice in accordance with para 6 of your service agreement dated 6-2-1942 and your service will terminate on the 16th September 1960.”

    It is the validity of this order that is the subject matter of this application. The contention of the petitioner is that on a proper construction of the Safeguarding of National Security Rules and of Art. 311 of the Constitution he was entitled to a further notice of the action proposed to be taken against him and as none such was given the order of dismissal dated 6-9-1950 is illegal. He accordingly prays that a writ might be issued under Art. 226 quashing the order dated 6-9-1950. The contention of the respondent is that the notice dated 27-2-1950 given to the petitioner was a sufficient compliance of the requirements of the law and that further the services of the petitioner were terminated by payment of a month's wages in accordance with the terms of the services and that consequently the order dated 6-9-1950 was not open to question under Art. 311 of the Contitution. It was also urged that the petitioner had a remedy by way of a suit and that, therefore, the application for the issue of a writ of certiorari was not maintainable.

    The first question that arises for determination is whether the order dated 6-9-1950 is in accordance with the provisions of the Safeguarding of National Security Rules. Rr. 3 and 4 which alone are relevant for the present purpose are as follows:

    “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 a manner as to raise doubts about his reliability may be compulsory retirement from service;

    Provided that a member of the railway service 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.

    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 under R. 3 it shall—

    (a) by order in writing, require the Government servant to proceed on such leave as may be admissible to him and from such date as may be specified in the order;

    (b) by notice in writing inform him of the action proposed to be taken in regard to him under R. 3;

    (c) give him a reasonable opportunity of showing cause against that action; and

    (d) before passing a final order under R. 3 take into consideration any representation made by him in this behalf.”

    The contention of Mr. K.V Venkatasubramania Aiyar the learned Advocate for the petitioner is that before a final order could be passed under R. 3 there must be a notice in terms of R. 4 Cl. (b) informing him of the action proposed to be taken against him and giving him an opportunity under R. 4(c) for showing cause against the proposed action and as that had not been done, the order of dismissal dated 6-9-1950 was in contravention of the rules and, therefore, illegal and he relies on a decision of the Privy Council reported in High Commissioner for India v. I.M Lall(1) in support of this proposition. That was a case in which the validity of an order of the Punjab Government dismissing an officer of the Indian Civil Service came up for consideration. On 2-9.1937 the Punjab Government framed a number of charges against one Mr. Lall, a District Judge belonging to the Indian Civil Service and gave intimation to him that a departmental enquiry would be held in respect of those charges. He was asked to furnish a written statement of defence which he did on 9-1-1938. Then there was an enquiry and acting on the report of the enquiry, the Government removed Mr. Lall from service by an order dated 31-8-1939, He then filed a suit challenging the validity of the order of dismissal on the ground inter alia that no notice had been given to him of the proposed action and no opportunity afforded to show against the same as required by S. 240(3) of the Government of India Act, 193 51 and that the procedure was illegal and the order was vitiated thereby. S. 240(3) is in these terms:

    “No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing case against the action proposed to be taken in regard to him.”

    The suit was decreed by the Punjab High Court on the ground that there was no proper inquiry. Vide I.M Lall v. Secretary of State(2). The matter was taken on appeal to the Federal Court. The learned Judge disagreed with the finding of the High Court that there was no proper enquiry but held by a majority that on a proper construction of S. 240(3) of the Government of India Act, 1935, there must have been a further notice to the Civil Servant informing him of the order proposed to be passed, that an opportunity should have been given to him to make representation against the proposed action and that final order could be passed only thereafter and as that was not done the order was illegal. The learned Judges observed as follows:

    “But the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions, on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed That in our judgment involves in all oases where there is an enquiry and as a result there of some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or in adequately summarised form, the results of that enquiry, and the findings of the enquiring officer, and be given an opportunity of showing cause with that information why he should not suffer the proposed dismissal or reduction in rank” Vide Secretary of State for India v. I.M Lall(3).

    Against this decision there was a further appeal to the Privy Council. In affirming the judgment of the Federal Court, Lord Thankerton observed that there was a distinction between giving information to the civil servant about the “grounds on which it is proposed to take action” and giving an opportunity of “showing cause against the action proposed to be taken in regard to him”; that the former would be appropriate in a stage anterior to the enquiry, the object being to afford adequate opportunity of defending oneself while the latter would arise only after the enquiry was held and punishment decided on; and further observed “In the opinion of their Lordships no action is proposed within the meaning of sub-section until a definite conclusion has been come to on the charges and actual punishment to follow is provisionally determined on. Prior to that stage the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub-S. (3) makes provision. Their Lordships would only add that the/see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an inquiry under R. 55 of the Civil Services (Classification Control and Appeal) Rules, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry”, vide High Commissioner for India v. I.M Lall, .

    In other words, in a case governed by S. 240(3) there will be two stages; firstly an inquiry after notice into the charges against the civil servant and this is the rule of natural justice that no person should be condemned without a hearing and secondly after the enquiry is over and a punishment decided on a further notice in terms of Sub-S. (3) informing the’ civil servant of the action proposed to be taken and giving him an opportunity to show cause against that action and this is a statutory requirement.

    It is argued for the petitioner that this decision will govern the present case because R. 4(b) of the Safeguarding of National Security Rules provides that the servant should be informed in writing “of the action proposed to be taken in regard to him under R. 3” that “reasonable opportunity of showing cause against that action” ought to be given under R. 4(c) and that under R. 4 any representation made by him in that behalf should be taken into consideration before final order is passed under R. 3. Mr. Nambiar the learned Advocate for the respondent could not convincingly assail the soundness of this contention but he argued that the notice dated 27-2-1950 satisfies the requirements of R. 4 because it stated that the petitioner was liable to have the services terminated under R. 3 but this is merely a statement of the effect of R. 3 and not any intimation of a decision by the authorities that the petitioner's services would be terminated. Reliance was also placed on paragraph 3 of the notice but this must be read along with paragraphs 4 and 5 and they clearly show that no action had been decided on. Indeed when it is remembered that a proper notice under R. 4(b) can only be after an inquiry is held and a punishment tentatively proposed, the notice dated 27-2-1950 calling upon the petitioner to give his explanation for the charges can in no manner be regarded as falling under R. 4(b). In our opinion the present case falls directly within the principles laid down by the Privy Council in High Commissioner for India v. I.M Lall and the order dated 6-9-1950 must be held to be illegal.

    Mr. K.V Venkatasubramania Aiyar also argued that in case his construction of R. 4 of Safeguarding of National Security Rules was not accepted he would rely on Art. 311(2) which reenacts the provisions of S. 240(3) of the Government of India Act, 1935 and contends that the Safeguarding of National Security Rules would be void as against Art. 311(2). As we have held that R. 4 of the Safeguarding of National Security Rules does not differ from S. 240(3) or Art. 311(2) on this point it is unnecessary to discuss this aspect any further.

    A further point was taken by Mr. Nambiar that questions relating to the propriety of the notice and the legality of dismissal did not arise in this case because under the rules applicable to railway establishment the services of the petitioner could be terminated on a month's notice; that under the notice dated 6-9-1950 a month's pay in lieu of notice was given to him, that in substance it was a case of termination of services and not of dismissal or removal and that accordingly Art. 311 did not apply. He referred to R. 148(3) and (4) of the Indian Railway Establishment Code which run as follows:

    “(1) 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 oases 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:—

    (a) Probationary officers and officers on probation other than those in the medical department—3 months' notice:

    (b) Officers on probation in the Medical department—one month's notice;

    (c) Permanent gazetted officers—six months' notice;

    (d) Permanent Non-gazetted employees—one months' notice.

    4. In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the services of a railway servant by paying him the pay for the period of notice.”

    It is common ground that the petitioner is a permanent non-gazetted employee falling within Cl. (d) of R. 3 and it is accordingly contended that his services could be validly terminated under that rule and must be taken to have been in fact so terminated. Reliance was also placed on Art. 310 of the Constitution which generally enacts that civil posts under the Union or State are held on pleasure and it is argued that R. 148 is in accordance with Art. 310 and is, therefore, valid. Mr. K.V Venkatasubramania Aiyar contends in reply that Art. 310 and R. 148 must both be read subject to the statutory rights declared in Art. 311 that the respondent took action avowedly only under the Safeguarding of National Security Rules, that the order is one of compulsory retirement under those rules and not a termination of service under R. 148; and that its validity must be judged by the provisions of R. 4 and of Art. 311.

    Art. 310 has a long history behind it. It has its origin in the rule well established in British Jurisprudence that all public Offices are held at the pleasure of the Crown. Two consequences result from this rule. The services of the civil servant can be terminated without assigning any reason and even in the case of wrongful dismissal no action could be maintained at law for damages, the theory being that the King can do no wrong. In Shenton v. Smith, this rule was applied to an appointment made by the Government of Western Australia and it was held that the office was held at pleasure and could be terminated at will and no action for damages would lie for wrongful dismissal. Lord Hobhouse in delivering the judgment of the Judicial Committee observed that “Neither principle nor authority has been adduced to show that in the employment and dismissal of public servants the colonial Government stands on any different footing than the Home Government.” In Dunn v. The Queen, it was held that even if there was a contract of employment for a period and it was terminated before the period without cause, no action for damages will lie. The following observations of Lord Watson in De Doshe v. Reg, were quoted and followed:

    “In the second place I am of opinion that such a concluded contract if it had been made, must have been held to have imported into it the condition that the Crown has the power to dismiss. Further I am of opinion that, if any authority representing the Crown were to exclude such a power by express stipulation, that would be a violation of the public policy of the country and could not derogate from the power of the Crown.”

    This decision was followed in In the matter of the Petitions of Right of Charles Lawrence Hales(4), where there was again a special agreement and this decision was affirmed on appeal in Hales v. The King(5). In Denning v. Secretary of State for India in Council(6), the plaintiff was employed by the Secretary of State for India on a contract for a period of five years. There was a premature termination of the services and there was no misconduct. It was held that the plaintiff could not maintain an action for damages. In Gould v. Stuart(7), the Judicial Committee, while affirming the general rule that Crown servant could be dismissed at pleasure, held that where there was a statute prescribing terms of services and mode of dismissal that would govern the rights of the parties. The law is thus summed up in Halsbury's Laws of England, Vol. VI, p. 608 para 782:

    “Except where it is otherwise provided by statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown and all in general, are subject to the dismissal at any time without cause assigned; nor will an action for wrongful dismissal be entertained even though a special contract be proved.”

    In India, these rules had been applied to offices held under the Government of India. Mr. Ilbert states the law in the following terms: (Vide Ibert's Government of India, 1916 Edn):

    “The tenure of persons serving under the Government of India or under a local Government is presumably tenure during the pleasure of the Crown.”

    This principle has been affirmed in all the statutes relating to the Government of India. S. 96-B(1) of the Act of 1919 runs as follows:

    ‘Subject to the provisions of this Act and of Rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed and the Secretary of State in Council may, (except so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed.”

    Section 240(1) of the Government of India Act, 1935 is in these terms:

    “Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, holds any civil post under the Crown in India, holds office during His Majesty's pleasure.”

    This provision is even more emphatic than S. 96-B(1) of the 1919 Act because the qualifying words “And of rules made thereunder” occurring in S. 96-B(1) on which it was possible to contend that the power of dismissal at pleasure could be controlled by the rules, have been omitted. Art. 310(1) of the Constitution re-enacts this principle with verbal alterations not affecting the substance of the matter. It is as follows:

    “Except as expressly provided by this Constitution, every person who is a member of the defence service or of a civil service of the Union or of all India service holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State holds any civil post under a State holds office during the pleasure of the Governor or, as the case may be, the Rajpramukh of the State.”

    Thus the rule that civil posts under the Government are held at pleasure is part of the law of this country and it involves the consequence that there can be termination of service at will. Art. 310 provides that this rule is subject to the “exceptions expressly provided by this Constitution.” Such exceptions are provided in Art. 310(2) which provides for compensation being paid when a contract for a period is terminated for no misconduct of the civil servant; in Art. 311(1) which enacts that a person cannot be dismissed by an authority subordinate to that by which he is appointed; and in Art. 311(2) which prescribes that a particular procedure should be followed before a person is dismissed or removed from service. Subject to these statutory restrictions the general rule embodied in Art. 310(1) that all offices under the Government are held at pleasure will govern the lights of the parties. In Venkata Rao v. Secretary of State for India the facts were that a civil servant was dismissed without there having been a proper enquiry in accordance with the rules framed under S. 96-B of the 1919 Act. He filed a suit for damages for wrongful dismissal. It was held by the Judicial Committee that as the office was held at pleasure the breach of the rules would, not confer a right of action on the civil servant for damages for wrongful dismissal. The decision in Shenton v. Smith was followed. In Rangachari v. Secretary of State for India a police officer was dismissed by an authority subordinate to one which appointed him and it was held that the order of dismissal was illegal as being in contravention of the statutory provision enacted in proviso to S. 96-B. In High Commissioner for India v. I.M Lall already referred to it was held that the dismissal was illegal and inoperative because it contravened the statutory prescription laid down in S. 240(3) of the Government of India Act, 1935.

    It will follow from the above that the Government has a right to terminate the services of a civil servant at will and the only restrictions on this power are those expressly enacted in the Constitution. There is accordingly considerable force in the argument of the respondent that he has a right to terminate the services of the employee under R. 148 of the Indian Railway Establishment Code and that there is nothing in the Constitution which restricts such a right.

    The question still remains whether this is a case of termination of service under R. 148 of the Indian Railway Establishment Code. The contention of the learned Advocate for the petitioner is that the order dated 6th September, 1950 is one passed only under the Safeguarding of National Security Rules and its validity must accordingly be determined with reference to those rules. We think that this contention is well founded. The notice dated 27th February, 1950 is expressly issued under R. 2 of the Safeguarding of National Security Rules, 1949. It purports to follow the procedure prescribed in R. 4. Four charges are framed against the petitioner. He is asked to submit his explanation and he is told that his representations would be referred to a committee of advisers set up by the Government of India for this purpose. The order dated 6th September, 1950 also expressly recites that the services are terminated under R. 3 of the Railway Services Safeguarding of National Security Rules. In the counter affidavit filed by the General Manager it is again expressly stated that action against the petitioner had been taken under the Railway Services Safeguarding of National Security Rules that the procedure prescribed by the rules had been properly followed, and that the rules have not become void under the Constitution. It is not pleaded anywhere that any action was taken under R. 148 of the Indian Railway Establishment Code. If action was intended to be taken under that rule then there was no need to frame charges, call for explanation and send it for consideration by a special committee. Even the service agreement of the petitioner has not been produced before us.

    It appears to us to be amply clear from the record that the respondent did only what he purported to do under the notice and that was to take action against the petitioner under the Security Rules. Reliance was also placed by Mr. Nambiar on the fact that a month's salary was paid to the petitioner, but under R. 7 of the Safeguarding of National Security Rules, it is provided that compensation should be paid when final orders are passed under R. 3. The payment is, therefore, a solatium offered under the above rules under which the petitioner has been removed from service. Mr. Nambiar relied on the following observations occurring in Nagpur Electric Co. v. Anand Vishnu:

    “The termination of the contract in due course, according to its terms is neither discharge, dismissal or release nor leaving employment”

    We agree that when the services of an employee are terminated he cannot be held to have been dismissed. But whether in fact it was a case of termination of services or dismissal is a question of fact and that must be determined on a consideration of the circumstances of the case.

    We are of opinion that the order dated 6-9-1950 is not one terminating services but one of compulsory retirement falling within R. 3 of the Safeguarding of National Security Rules and as the procedure prescribed in R. 4 has not been followed, it is illegal and inoperative.

    Mr. Nambiar finally contended that this application is not maintainable as the petitioner can enforce his rights in a regular suit and that where there is another remedy open no relief should be granted in a writ of certiorari. It is true that this Court will not ordinarily interfere with an order where there is another adequate remedy available to the party. This, however, is a rule of discretion for the guidance of the Court and not a limitation on its powers. As observed by Das J. in Rashid Ahmed v. Municipal Board, Kairana., Kairana, the “existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs.” In the King v. The Postmaster General, exparte Carmichale Avory J. dealing with this very contention observed as follows:

    “But even if that remedy is open to her, it is undoubtedly good law that if the application for a certiorari is made by a party aggrieved, then it ought to be granted ex debito justiciae and the Court has not the general discretion which it would have when the application is made by one of the public who is not personally concerned. That was decided long ago in the case of Reg. v. Surrey Justices, and on that principle, even though she has a remedy by appeal in this case, I am prepared to agree that the certiorari should go, seeing that the application is being made by the applicant as the party aggrieved.”

    The law is thus stated in Halsbury's Laws of England, Vol. 9, page 878 para 1481:

    “Although the writ is not of course it will nevertheless be granted ex debito justiciae to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief, and this is the case even though certiorari is taken away by statute and although there is an alternative remedy,”

    As the question involved is one of right procedure to be followed in exercise of the powers conferred under the Safeguarding of National Security Rules and as the rights of the petitioner have been clearly infringed, this is a fit case in which the writ must issue. The order dated 6-9-1950 is accordingly set aside. The petitioner will be entitled to his costs, Advocate's fee Rs. 100.

    V.C.S

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    G. Sambandam v. The General Manager, South Indian Railway, Tiruchirapalli.
    (Nov 13, 1951)