Ramaswami, J.:— 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 I 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, 1912. On 12-7-1950 the petitioner received a letter no. PC 142 BI(11) which reads as follows:—
“Whereas in the opinion of the ‘Competent Authority’ as defined in R. 2, Railway Service (Safeguarding of National Security) Rules, 1949 (who in your case is the Chief Operating Supdt. FIR. Calcutta), you are reasonably suspected to be a member of the Communist party of India and associated with other subversive activities in such a mariner 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 receipt of this Notice, orders will be passed on your case without any further reference to you.”
3. On 22-6-1950, the petitioner made a representation denying the allegation that he was a mem-1 her 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. 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 22-8-50 in reply to the Charge sheet dated 12-6-50 and I am of the opinion that you are associated with others in subversive activities in such manner as to raise doubts about your reliability and I 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 month's 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 are required to vacate Railway quarters, if any, at once and if you, fail to vacate railway quarters you will be treated as a trespasser and dealt with accordingly”.
4. It is alleged on behalf of the petitioner that the action of the Chief Operating Superintendent in terminating his service was illegal and without jurisdiction and the High Court ought to grant a writ of certiorari quashing the order passed by the Chief Operating Superintendent on 27-11-1950, terminating the petitioner's service.
5. The facts alleged in the affidavits filed by the petitioners in M.J.C Nos. 134 and 135 of 1952 are in similar terms.
6. The first question is whether the order passed by the respondent terminating the service of the petitioner in each case violates the provisions of Article 311(2) of the Constitution. It was contended by Mr. B.C Ghosh in support of the rules that Article 311(2) required that no person should be dismissed or removed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. In other words, the contention is that, the respondent ought to have served on the petitioner two notices, one notice asking him to show cause why action should not be taken on the ground that the petitioner took part in subversive activities and the second notice requiring the petitioner to show cause why the proposed action viz., termination of service should not be taken in his case.
7. Article 311(1) states that:
“No person who is a member of a civil service of the Union or an All India Service or a Civil Service of a state or holds a civil post under the Union or State shall be dismissed or removed by any authority subordinate to that by which he was appointed”.
8. Article 311(2) provides that:
“No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him”.
9. The whole argument of Mr. B.C Ghosh is based on the express terms of Article 311(2). Reference was made by the learned counsel to — ‘High Commissioners for Inida & Pakistan v. I.M Lall, 75 Ind. App. 225 (P.C) in which the Judicial Committee construed a corresponding section in the Government of India Act, namely, section 240(3) to mean that the civil servant who is proceeded against should have an opportunity of snowing cause against the action proposed to be taken. Even it the civil servant had notice of the allegation and even though a complete enquiry had been held as to the truth of those allegations, the civil servant was still entitled to represent against the punishment proposed as a result of the findings of the enquiry.
10. Merely because the civil servant had notice of the main proceedings, that circumstance did not in itself exhaust his statutory right and he was still entitled to a notice from the authorities concerned in order to enable him to make a representation against the punishment proposed as a resuit of the findings of the first enquiry. The argument of Mr. B.C Ghosh would be well founded if Article 311(2) applies to this case. For applying the principle of Lall's case, 75 Ind. App. 225 (P.C), it is manifest that the petitioners should be entitled not only to a notice of the charges or the allegations made by the Department against them but also a subsequent notice requiring them to show cause why the proposed punishment should not be meted out. But the assumption upon which the argument of the petitioner rests is not correct. From the facts disclosed in the affidavit, it is clear that the present case is not a case of dismissal or removal or reduction in rank. It is argued by Mr. B.Q Ghosh that “termination of service” was only another name for “removed from service”. In support of his argument the learned counsel referred to — ‘Shambhu Dayal v. Patiala & East Punjab states Union’, A.I.R 1952 Pepsu 152. With great respect, I am unable to accept the argument of Mr. B.C Ghosh as correct.
11. In my opinion, the terms “dismissal”, ‘removal’ and ‘reduction in rank’ are all technical terms employed in the Article, and it is not permissible to construe these terms in a popular sense. It is important to note that the Indian Railway Establishment Code, which governs the contract, of service of these petitioners, makes a clear distinction between a case of termination of service and a case of dismissal or removal or reduction in rank. Rule 1702 at page 177 deals with the penalties which may be imposed upon railway servants. Item No. 8 of Rule 1702 refers to removal from the service and item No. 9 to dismissal from the service. The whole paragraph is entitled as “Penalties” and occurs in Chap. 17 which bears the heading “Conduct and Discipline”. It should be noted also that Rule 1709 prescribes the procedure for the removal of a railway servant from service, and Rule 1708 similarly describes the procedure as to how a railway servant should be dismissed. Rule 148 which deals with termination of service' and periods of notice occurs in the chapter on ‘General conditions of service’. Rule 148(3) states that in the case of non-pensionable railway servants their services shall be liable to termination on notice on either side for the periods mentioned in the rule. 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 Sub-rule (3) cl. (d) states that in case of permanent non-gazetted employees the service shall be liable to termination on one month's notice. It is not disputed in the present case that the petitioners had been granted one month's pay in lieu of notice. Rule 3 of the Railway Services (Safeguarding of National Security) Rules under which the authorities have acted itself provides that a railway servant may be compulsorily retired from service or have his services terminated after he has been given due notice or pay in lieu of such notice in accordance with terms of his service agreement. If Rule 3 of the Railway Services-(Safeguarding of National Security) Rules is read in context of Rule 148 of the Railway Establishment Code. It is manifest that there has been no removal or dismissal or reduction in rank within the meaning of Article 311(2) of the Constitution, and the argument of Mr. B.C Ghosh on this part of the case must fail.
12. The next question is whether the Railway Services (Safeguarding of National Security) Rules, should be construed to mean that the competent authorities ought to have given the petitioners a second notice stating what was the punishment proposed. It was contended by Mr. Ghosh that the language of Rule 4(b), National Security Rules was almost identical with the language used in Article 311(2) of the Constitution. It was contended by the learned counsel that the provisions ought to be construed in ‘pari materia’ and upon the authority of High Commrs. for India & Pakistan v. I.M Lall, 75 Ind. App. 225 (P.C) it ought to be held that the petitioners ought to have been given notice by the competent authorities to show cause against the punishment proposed. It was argued that in the absence of such notice the order of the competent authorities terminating the services of the petitioners was illegal and without jurisdiction.
13. The argument is attractive but on a closer examination I think Rule 4(b), National Security Rules cannot be construed in the manner contended for on behalf of the petitioners. It is true that the language employed in Rule 4(b) bears similarity to the language used in Article 311(2) of the Constitution but that is no warrant for reaching the conclusion that the provision must be similarly construed. For it is a familiar principle of construction that the provision of an enactment ought to be construed in its particular context. A particular word or a particular phrase in an enactment takes its colour and meaning from the context in which it is placed. Examined from this standpoint, there are vital differences between the provisions made under Article 311(2) of the Constitution and the National Security Rules framed by the Governor-General and subsequently adopted by the President of India. In the first place, there is the significant fact that Article 311(2) applies only when a measure of punishment is taken against a civil servant. The article applies to a case of dismissal or removal or reduction in rank. The article contemplates, as explained by the Judicial Committee in Lall's case that there should be charges framed and proceedings drawn against the Government servant concerned on the basis of those charges. The civil servant is required to put in written defence and if an enquiry is held by a competent authority into the truth of the charges, the civil servant is entitled to cross-examine witnesses and it is required that the proceedings should contain a sufficient record of the evidence, a statement of the findings and the grounds thereof. This requirement is imposed under Rule 55, Civil Service (Classification, Control and Appeal) Rules which were framed under the Government of India Act, 1919. In the background of Rule 55 which applied in — ‘I.M Lall's case’, the provision of section 240(3), Government of India Act was construed by the Judicial Committee to mean that after a definite conclusion is reached by the enquiring authority on the charges levelled against the civil servant, a second notice should be given mentioning what was the punishment proposed to be inflicted. At page 242 the Judicial Committee states:
“In their opinion, sub-s. (3) of Section 240 was not intended to be, and was not, a reproduction of Rule 55, which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed of the grounds on which it is proposed to take action, and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of reasonable opportunity of showing cause against the action proposed to be taken in regard to him. In the opinion of their Lordships no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges and the actual punishment to follow is provisionally determined on. Before 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 they 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 Rule 55, 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”.
14. This procedure is in distinct contrast to the procedure which is required to be followed under the National Security Rules. Rule 3 states that a railway servant who, in the opinion of the competent authority, is engaged in or is reasonably suspected to be engaged in subversive activities or is associated with others in subversive activities in such a manner as to raise doubts about his reliability may be compulsorily retired from service, or have his service terminated by the competent authority. Rule 4 provides that 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. It is manifest, therefore, that the competent authority may proceed against a railway servant on mere suspicion that the latter is engaged in subversive activities or that he is associated with others in subversive activities in such a manner as to raise doubts about his reliability. There is no requirement that the railway servant should produce evidence in support of his defence, nor is there any requirement that the allegations must be proved by evidence or there should be cross-examination on behalf of the railway servant. It is open to the competent authority to act on reasonable suspicion, and there is no condition precedent that the allegations must be proved. In the second place, there is the important fact that there is no choice of punishment open to the competent authority. It is open to them either to make any order for compulsory retirement from service or to make an order terminating the service of railway servant. There is no practical difference in the effect of these two orders for Rule 7 provides that any person compulsorily retired from service or whose service is terminated under Rule 3 shall be entitled to such compensation, pension, gratuity 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. The question of second notice becomes irrelevant in view of the consideration that there is no choice of punishment or no gradation of penalty under the National Security Rules.
15. It is important further to remember that the National Security Rules were enacted as a security measure and there is a provision for compulsory retirement or termination of service merely for the purpose of carrying out the object of these rules, namely to ensure public security in the railway service by the termination of service of a railway servant whose activities are suspected to be subversive. In the light of these considerations, it is obvious that the ratio of — ‘I.M Lall's case’, 75 Ind. App. 225 (P.C), cannot be applied to the interpretation of Rule 4, National Security Rules. It follows as a necessary consequence that no second notice is required under the National Security Rules requiring a railway servant to show cause why the particular action, namely termination of service should not be taken by the competent authority. The argument of Mr. B.C Ghosh on this part of the case cannot be accepted as correct.
16. The next point argued by the learned counsel is that Article 320 of the Constitution requires that the Union Public Service Commission should be consulted before the services of the petitioners were terminated. Admittedly the Union Public Service Commission was not consulted in the present case, & on this basis it is argued by the learned counsel that the order passed by the respondent terminating the service of the petitioner in each case was unconstitutional & void. Article 320(3)(c) enacts that the Union Public Service Commission or the State Service Commission, as the case may be, shall be consulted…… (c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. In my opinion, the argument of the learned counsel is not valid for two reasons. In the first place the orders passed by the respondent terminating the services of the petitioners do not constitute disciplinary action in view of the considerations I have set out above while dealing with the argument of the learned counsel on the previous point Secondly, the proviso to Article 320 states that
“the President as respects the all India services ……. may make regulations specifying the matters in which either generally or in any particular class of case or in any particular circumstances, it shall not be necessary for a public Service Commission to be consulted”.
17. It is pointed out by the learned Government Pleader that the National Security Rules which were enacted by the Governor-General in exercise of the powers conferred by sub-s. (2) of S. 241. Section 247 and sub-section (2) of Section 266 of the Government of India Act, 1335, have been adapted by the President after the Constitution of India came into force. In view of the circumstance it was rightly argued by the learned Government pleader that the proviso to Article 320 will operate, and there is no need that the respondent should consult the Union Public Service Commission before terminating the services of the petitioners. In my opinion this point of view is correct and there is no basis (for the argument addressed by Mr. B.C Ghosh that Article 320(3)(c) has been violated in this case.
18. It remains to state that in the course of argument Mr. B.C Ghosh strongly relied upon the decision of the Madras High Court in — ‘Sambandam v. General Manager, South Indian Railway”, (1952) 1 Mad LJ 540. Learned counsel rightly stressed the circumstance that the present case is very similar to the facts presented in the Madras case. With very great respect I am unable to hold that the decision reached by the Madras High Court is correct. At page 545 Venkatarama Ayyar, J. dealing with the argument of Mr. Nambiar that the Railway authorities had a right to terminate the services of the employee under Rule 148, Tlailway Establishment Code remarked that there was considerable force in the argument. But the learned Judge after examining the materials furnished in that case held that it was not a case of termination of service but one of the compulsory retirement falling within Rule 3, National Security Rules. At p. 545 the learned Judge states:
“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 service or dismissal is a question of fact and that must be determined on a consideration of the circumstances of the case”.
19. It was observed by the learned Judge that the service agreement of the petitioner was not produced in that case.
20. But there is no reference in the judgment to the provisions of the Railway Establishment Code, in particular R. 148 which relates to termination of service and R. 1702 which enumerates the penalties which may be imposed upon a railway servant. These rules, as I have already pointed out, occur in separate chapters of the Railway Establishment Code which are statutory rules made by the Governor General under sub-section (2) of Section 241 of the Government of India Act. It is, therefore, with great respect that I differ from the view taken by the Madras High Court in the case referred to.
21. On the contrary, the correct principle has been laid by the Allahabad High Court in — ‘Jayanti Prasad v. State of Uttar Pradesh’, AIR 1951 All 793 in which it was held by a Division Bench of that Court that Article 311 applied only to a case in which a person was dismissed removed or reduced in rank, that those were technical words used in cases in which person's services were terminated for misconduct, that they did not apply to cases in which a person's period of service is determined in accordance with the conditions of his service, e.g where it has been terminated by one month's notice in accordance with the contract of the employment. A similar view has been taken by the Nagpur High Court in two unreported decisions — ‘Heeraman v. Deouty General Manager (Staff) of B.N Rly. Calcutta D/-. 18-11-1951; & —‘Shriram v. Union of India’, (Ministry of Railways) through the General Manager B.N Rly. Administration, Calcutta, D/- 8-1-1952. I have already indicated the reasons why the view taken by the Allahabad High Court and the Nagpur High Court is correct.
22. For the reasons I have expressed I think that all these applications should be dismissed with costs. Hearing fee five gold mohars in each case.
23. Sarjoo Prosad, J.:— I agree to the order proposed. I confess I have not found it easy to distinguish the principles laid down by the Judicial Committee in its decision in the ‘High Commissioners for India and Pakistan v. I.M Lall’, 75 Ind App 225 (PC) in interpreting Rr. 4 and 5, Railway Service National Security Rules. It is true that words or phrases used in a particular context take their colour from the context itself. I find, however, that the words in R. 4(b) “by a notice in writing inform him of the action proposed to be taken…………” are not only similar to the words used in Section 240(3) of the Government of India Act, 1935, and Article 311 (2) of the Constitution but also the context is substantially identical of course; with the difference that the rules in question relate to compulsory retirement from service or termination of service, whereas Section 240 of the Government of India Act deals with dismissal from service or reduction in rank and Article 311 of the Constitution not only with dismissal or reduction in rank but also with removal from service. I, therefore, prefer to rest my decision on a shorter ground. Even if all the arguments of the learned counsel for the petitioners bearing on the interpretation of these rules and Article 311 of the Constitution are accepted, the only position is that an additional notice, which the petitioners claim ought to have been served upon them on the authority of the Privy Council decision was not served on them. I do not consider that under Article 226 of the Constitution we should interfere on this technical ground alone. If the fact is what is stated to be that the petitioners were associated with subversive activities so as to raise doubt about their reliability, and the authorities, therefore, thought it fit to terminate their services, we cannot at this stage hold that their decision to act in the manner they thought proper was absolutely without jurisdiction. If the petitioners have any grievance on the point they could have the matter investigated in a regular suit. The notices terminating their services appear to have been served on them as early as November, 1950. There is nothing to show that after that they made representations to the authorities asking for a review of recall of the order on the ground set forth in their petitions; and they seem to have waited all this while and did not think of moving this Court until some similar question as they state in their petitions was decided by a Bench of the Madras High Court. In the absence of any evidence to the contrary and in dealing with these applications for certiorari it is not possible for us to go into evidence. We cannot hold that there was no justification for the termination of the services of these petitioners in accordance with the rules. I, therefore, agree that these applications should fail and costs should be awarded against the petitioners.
A/R.G.D
24. Application dismissed.