(1) This order will dispose of both these petitions under Art. 226 of the Constitution of India.
(2) The petitioner in Special Civil Application No.22 of 1962, Chintamani Purshottam Neurgaonkar, was appointed as a clerk by the Post-Master, Poona, in 1947 and attached to Bombay Circle. Eventually he was transferred to Nagpur at his own request in the year 1951. At Nagpur he was attached to the G.P.O., Nagpur, as a clerk. Subsequently he was put in independent charge as sub-postmaster at the Netaji Market post office at Nagpur. He worked there for about two years and thereafter was called back at the G.P.O. After working in the G.P.O. for one year and some time in the City Post Officer, Nagpur, the petitioner was entrusted with the Night Mobile post Office as a sub-postmaster, in which post he worked for another year. The petitioner also worked at Nayapura Post Office and some time about the year 1958 he took charge as sub-postmaster at the Tilak Statue Post Office, Nagpur.
(3) On 17th May 1961 the Postmaster General, Central Circle, Nagpur served on that petitioner a notice to the following effect : -
'Whereas for the reasons stated in the annexure it is considered that you are reasonably suspected to the engaged in subversive activities and that your retention in the public service is on that account prejudicial to National Security, and that consequently it is proposed to retire you from service compulsorily under R. 3 of the Central Civil Service (Safeguarding of National Security) Rules, 1953, (copy enclosed) you are hereby directed to submit to the president, through the undersigned, within 14 days of the receipt of this notice, any representation you wish to make against the action proposed to be taken in regard to you. Such representation, if any, will be considered by the President before appropriate orders are passed. If you submit no representation within the time specified, it will be assumed that you have no representation to make against the proposed action and the President will proceed to pass appropriate orders on your case without any further reference to you.
2. If is proposed to place you under suspension, pending the conclusion of these proceedings. However, if you so wish, you will be permitted to proceed on such leave as may be admissible to you, with effect from 22-5-61. You are hereby required to send intimation of your wishes in this behalf, immediately.
3. You are further asked to state whether you wish to be heard in person before orders are passed on your case.'
As an annexure to this notice there is a statement of allegations purporting to show the alleged subversive activities in which the petitioner Chintamani was suspected to be engaged. Those allegations were as follows:-
1. Shri C.P.Neurgaonkar, Sub-Postmaster, Tilak Statue, Nagpur, has been associating and taking active part in the activities of R.S.S.S.
2. He attended the R.S.S.S. trip at Starkey point at Nagpur on the 17th November 1957.
3. He participated in the 'Sankrant Mahotsava' of the R.S.S.S. at Mohite ground, Nagpur, on 14th January 1960.
4. Visited the R.S.S.S. Office at Nagpur on 23rd January 1960.
(4) The petitioner Chintamani submitted his written representation on 31-5-61. He repudiated all these allegations in the annexure to the notice and contended that far from indulging in subversive activities he had rendered loyal and faithful service during the period since 1947. He urged that he held independent charge as sub-postmaster and has done his duty faultlessly and efficiently with sincerity. He expressed an apprehension in his statement that the notice may be the outcome of action taken as a result of general strike by Central Government employees. He denied allegations in the notice and annexure as false and based on reports which are untrue and mischievous. He denied categorically his association with any activities conducts by the R.S.S.S. he desired personal hearing.
(5) Accordingly respondent No.1 gave a personal hearing to Chintamani on 7-7-1961. The record of that hearing was maintained by the A.P.M. G. and it is to be found at Annexure V in Special Civil Application No.22 of 1962. At this hearing the petitioner again reiterated that his services were without blemish, that he was studying privately and that he had just passed B.A. examination for which he had joined college in 1953 with permission. He represented that he rarely found time to indulge in extraneous activities and denied that he was associated with the R.S.S.S. He further represented that he was a poor man with large responsibilities and he could not pay his dues to his co-operative society. He was engrossed in his own difficulties and could have not time to indulge in extraneous activities. He also pointed out that he had no joined in any of the activities of the R.S.S. Prior to this personal hearing respondent No.1 has passed an order on 3rd June 1061 in exercise of the powers under R. 5 of the Central Civil Service(Safeguarding of National Security) Rules, putting the petitioner Chintamani under suspension with effect from 6th June 1961. The petitioner filed this petition in this Court on 23rd December 1961 after awaiting the result of his representation already submitted on 31-5-61.
(6) Special Civil Application No.23 of 1962 is filed by the petitioner Kashinath Devidas Didolkar. Kashinath was appointed as a clerk by the Postmaster, Nagpur, in May 1952 at Nagpur. At the time action was taken against him, he was acting as sub-postmaster at the Cotton Market Post Office at Nagpur. He had also worked for some time as a supervisor in 1957 and according to service record it was without any blemish till action was taken against him under the impugned order. On 19th May 1961 Kashinath also received a notice from the respondent more or less identical in terms and contents as the notice received by the petitioner Chinatamani. Annexed to this notice also there was a statement of allegations against kashinath to the following effect:-
1. Shri K.D. Didolkar, Sub-postmaster, Cotton Market, Nagpur, has been associating and taking an active part in the activities of the R.S.S.
2. He attended the R.S.S.S. trip at Starkey point at Nagpur on 17th November 1957.
3. He visited the R.S.S. Office at Nagpur on 13th July 1959, 15th July 1959 and 8th January 1960.
4. He attended a Private meeting of R.S.S. at Nagpur on 14th July 1959.
(7) Kashinath submitted a detailed explanation on 1-6-61 addressed to the President through proper channel. In this representation the petitioner Kashinath has denied as untrue the allegations in the annexure to the notice charging him of association with and taking part in the activities of the R.S.S. He has denied the allegations as absolutely false and frivolous. He stated that he never attended the meeting of the R.S.S. nor visited the R.S.S. office, nor had he taken any part, much less any active part, in any of the activities of the R.S.S. He also pointed out that the R.S.S. was not declared an unlawful organisation, nor any of its activities declared as subversive. He denied any association with the R.S.S. It was also pointed out that that institution has been working openly and none of its activities were declared illegal. He also urged that there was no complaint against him by any member of the public. He also urged that he was a poor man and that such reports as seem to have been received against him are the outcome of mischievous minds. A personal hearing was granted to the petitioner Kashinath on 7-7-61. Therein he reiterated has innocence and again protested that he had never been associated with the R.S.S. He claimed that he had a good past record of 19 years service and that no action is called for. Kashinath also was suspended under R. 5 of the Rules from 3rd June 1961 by the respondent. Kashinath filed his petition in this Court on the same date.
(8) Identical contentions are raised on behalf of the petitioners in both these petitions. The petitioner's case is that no action could be legally taken against them under R. 3 of the Central Civil Service (Safeguarding of National Security) Rules, 1953, in as much as neither of the petitioners has in fact engaged himself in subversive activities, nor can they reasonably be suspected to have been engaged in subversive activities by reference to the allegations in the annexures filed with the notices. It is further contended that under R. 3 action can be taken only by the President and not by any other authority but the notice issued to both the petitioners does not disclose that an opinion that either of the petitioners is reasonably suspected to be engaged in subversive activities in entertained by the President. It is further contended that under R. 4, the respondent No.1, as competent authority, was bound to give a reasonable opportunity to the petitioners to make their representation against any adverse action and they have been denied this opportunity because the allegations on which the proposed action is founded cannot possibly from the basis of any such action. Moreover, the allegations are extremely vague and do not indicate how and in what manner the petitioner could be reasonably suspected to be engaged in subversive activities. The petitioners have therefore come to this Court for quashing of these notices issued to them.
(9) The respondent No.1, i.e. the competent authority which has issued the noticed in the instant cases, has opposed the petition, firstly on the ground that no final action is taken against the petitioners and the petitioners have prematurely come to this Court. It is also urged that it is for the President to form an opinion whether the petitioners can or cannot be said to be reasonably suspected to have been engaged in subversive activities, and it is the President alone who has been invested with the powers to come to this opinion. It is therefore urged that no action having been taken and an exclusive authority being created in the President to form an opinion about the nature of the activities being subversive activities requiring action being taken against the petitioner this Court should not interfere in the manner stated by the petitioners.
(10) As regards the first contention, viz. the premature filing of the petition, we would only refer the another decision of the Court in which an identical contention was raised and negatived. That decision is Special Civil Application No. 317 of 1961 (Bom), decided by a Division Bench of this Court, of which one of the (Abhyankar j.) was a member. Action was taken by the Accountant -General against the petitioners in that case. The petitioners had asked for some specific details and information as the allegations made were quite vague. No such information was given and it was contended that the Accountant-General in that case had no other authority the Accountant-General in that case had no other authority except forwarding the representation. As the representation was pending for consideration by the President, the objection regarding the petition being premature was pressed. In repelling this contention it was observed that rules did not indicate that action was to be initiated by the President, nor had it been shown as a fact in that case that the action was initiated by the President. Even though there was an averment in the return to the contrary, the notice and the annexure themselves showed that it was the competent authority, namely the Account-General in that case, who had initiated the action. In our opinion, the facts in the instant case are more or less identical. In both the notices received by the petitioners what is stated is that 'Whereas for the reasonably suspected to be engaged in subversive activities...........'. The notices nowhere state that the president has formed an opinion that the petitioner is reasonably suspected to be engaged in subversive activities; for all one knows, and as the notice shows it is the respondent who has taken the initiative to issue such notices, and who had initiated action against both case petitioners. We have made enquiries from the learned Government Pleader whether there are any rules framed by the Government showing how action is to be taken under those rules. But none have been placed before us. We must therefore go by the record and hold that the action in the instant cases has been initiated by respondent No.1 and the wording of the notices also shows that the president nowhere appears in the picture, at least this stage.
(11) Moreover, it would appear that R. 4 itself postulates the competent authority to issue a notice in writing and the action which the President can take under R. 3 must necessarily be consequential to such a notice. The mere fact that the ultimate order is require to be passed by the President after taking into consideration the representation of the Government servant concerned, does not come in the way of the petitioner seeking relief in this Court if he can show that the notice under R. 4 is bad on any valid ground. The notice has admittedly emanated from the respondent of allegations. The validity of the notice therefore is certainly justiciable before this Court if it is shown that the notice could not have been sent on a proper interpretation of the rules. We, therefore propose to examine the validity of the notice along with annexures which contained statement of allegations.
(12) The Civil Services (Safeguarding of National Security) Rules undoubtedly authorise penal action in the interest of national security provided certain conditions president to come to a conclusion or opinion as to whether or not a Government servant is engaged or is reasonably suspected to be engaged or associated with others in subversive activities, and further the President has to come to an opinion whether his retention in the public service is, on that account, prejudicial to national securities. The crucial words, however, which indicate certain basic facts necessary to be established, are (1) that the servant is engaged in subversive activities, or (2) that subversive activities, or (3) that the servant is associated with others in subversive activities. Unless one or the other of these basic conditions is satisfied, further action of removal of the public servant from service on account of such activities being prejudicial to the national security may not be possible. So far as the third condition is concerned, it is to be remembered, as is now judicially held, that the association of the delinquent servant must be in the subversive activities of others. It is not mere association with others who may be indulging in subversive activities that could be a ground of action under third category. In the instant case, as far as the notice shows, what is alleged against each petitioner is that each one is reasonably suspected to be engaged in subversive activities. Therefore the statement of allegations should show prima facie that the activities which are indicated in the allegations are capable of being interpreted as subversive activities. Now, it has not been possible for the learned Additional Government Pleader to indicate how any one of the allegations against either of the petitioners can be reasonably considered as a subversive activity.
(13) In the case of the petitioner Chintamani the first allegation is that he has been associated and taking active part in the activities of R.S.S.S Though Chintamani has denied this allegation we may assume that the allegation is true according to the respondent. But the R.S.S. is not an organisation which is declared unlawful. The allegations also does not disclose what are the activities of the R.S.S., participation in which or association with which is considered subversive. To that extent the averment is extremely vague. Unless a person is reasonably suspected of being engaged in doing something unlawful, or ex facie prejudicial to public security, it is difficult to countenance the suggestion that mere association with an institution which is neither declared as unlawful nor is alleged or shown to be indulging in any anti-social or treasonable activities or activities leading to breach of the peace, can form a foundation for action under R. 3.
(14) The next allegation is that Chintamani attended the trip organised by R.S.S. at a point called Starkey point, on 17th November 1957. Here again we fail to see, in the absence of any indication as to what was the objection of the trip and what was the achievement of this trip, how attending or associating with a picnic, or mere visiting the Starkey Point, would amount to a subversive activity. The third ground is that he participated in the 'Sankrant Mohotsav' of the R.S.S. on 14th January 1960 at Mohita ground, Nagpur. Prima facie every Hindu generally celebrates or participates in this social gathering. For all one knows, this is a most secular type of gathering that is observed amongst Hindus, in which persons belonging to other communities also take part. It is really difficult to understand how and why participation in such an innocuous social function should be invested or associated with a subversive motive.
(15) The last ground is that he visited the R.S.S. office at Nagpur on 23rd January 1960. How a mere visit to an office on an institution should lead to an inference that one is participating in subversive activity is again difficult to understand.
(16) Similarly, in the case of petitioner Kashinath allegation No.1 is a general statement that he takes active part in the activities of R.S.S., again without any indication as to the nature of the activities of the institution. Allegation No.2 is that he attended a trip to the Starkey Point, which must merit the same criticism as in the case of Chintamani. The third allegation is that he visited the R.S.S. office at Nagpur on three occasions, which again cannot by itself amount to a subversive activity, and the fourth allegation is that Kashinath attended a private meeting of R.S.S. at Nagpur on 14th July 1959. Unless purpose of the meeting, which he attended, or what transpired in the meeting is disclosed, mere attendance at a meeting of the institution cannot by itself lead to any inference that the petitioner could be reasonably suspected of indulging in subversive activities.
(17) Another feature of these allegations is that they pertain to a period long prior to the actual issuing of the notices in 1961. They ranged from 1957 and the last so called subversive activity was attendance at a meeting in 1960. This itself will show that the authority which is charged with initiating action by issuing notice under R. 4 does not seem to have considered whether there is any rational nexus between the activities charged as subversive and the action proposed to be taken. It is contended on behalf of the respondent that this Court is not entitled to adjudicate whether or not the allegations could lead reasonably to an inference of being engaged in subversive activities. It is not possible to accept this bald contention. The action that is permitted to be taken under R.3 as a result of notice under R. 4, infringes on the normal, right of the public servant to continue in service till the end of his tenure. The action is admittedly taken in the interests of national security, and to that extend is immune from challenge on merits. But what is immune is the decision of the President that it is necessary in the interests of national security to terminate the services of the public servant concerned, but it has still to be established that the subversive activities of which the delinquent servant is charged are in fact subversive and to that extent the opinion of the President must be grounded on material which has a rational probative value. For instance, it could not be reasonably contended that action could be taken against a person because he belonged to a particular class, or is of particular complexion or a particular height. Similarly, actions which are normally innocent or innocuous as belonging to an association of to an institution. Which has not given any cause for any adverse action or criticism of Government or which is not declared an unlawful association cannot be said to be an activity which raises a reasonable suspicion about the person being engaged in subversive activities. In the instant case, neither of the petitioners are charged of having themselves done any subversive act. What is charged is that they are reasonably suspected to be engaged in subversive activities. Thus, the action proposed to be taken is founded on mere suspicion but even that suspicion is not related to any subversive activities as such either on their part or on the part of others with whom they are associated. One could well understand an association with persons having known antecedents, indulging in violence or being wedded to the doctrine of violent activities or agitation; and if that be the case, it is possible that allegations to that effect may be well founded. But the allegations which have been annexed to the petitions in either of these two cases do not at all disclose any subversive activity either on the part of the petitioner or on the part of the institution, association with which is attributed to the petitioners. In fact, visiting an office of the institution or participation in 'Sankrant' function, or attending a picnic at Starkey Point can hardly be called subversive activities even of the association. In this aspect of the case, therefore, in our opinion, respondent has not made out even prima facie that the action under R. 4 taken by the respondent No.1 could be taken by him on the basis of the allegations in the Annexures to both these notices.
(18) That such action is not immune from judicial review is held in some decisions of Courts. The learned Counsel for the petitioner has relied on a decision of the Nagpur High Court which is reported in D.S. Rajratnam v. Commissioner of Income-tax 1957 Nag LJ 75. In that case action was taken by the Commissioner of Income-tax against one of his employees, on the allegation that he was a member of the Communist Party, that he attended a private meeting of the party, that he associated with two named person who were communist and that he was actually engaged in communist activities at Sagar. None of these allegations were held to the sufficient to indicate either that the activities themselves were subversive or that the public servant in that case could be reasonably suspected to be engaged in subversive activities themselves. To the same effect is that decision of the Madras High Court reported in Ananthanarayanan v. General Manager, Southern Railway, P.T. Madras, (S) AIR 1956 Mad 220. It is true that the action in the Madras case was taken under the Railway Services (Safeguarding of National Security) Rules, 1954, but the rules are pari materia and the order was stuck down firstly because the allegations were very vague, and secondly because it was not established that any of the allegations could reasonably be said to lead to an inference of association with subversive activities or indulging in subversive activities. In coming to that conclusion the learned judge also referred to two decisions of this Court, namely, In re, Rajdhar Kalu AIR 1948 Bom 334 and Manohar V. Government of Bombay, : AIR1950Bom210 .
It has been held in this Court that if action under the Preventive Detention Act is taken, founded on grounds which are altogether extraneous to the provisions of the statute, then the whole order is bad and cannot be sustained. There is some analogy between the action taken under the Preventive Detention Act and the action that is permissible under the Safeguarding of National Security Rules in respect of Government servants. The only safeguard that is available to the Government servant is an insistence that the activities of which he may be charged namely, that he was engaged or was reasonably suspected to be engaged must be subversive activities and the rule does not commit to the exclusive satisfaction of the President the decision as to what a subversive activity is. In fact, the use of the words 'reasonably suspected' itself postulates that the term is capable of an objective assessment as to whether an activity could be called a subversive activity. None of the activities which are attributed to the petitioners in either of these two cases before us can be called subversive activities and no action is possible unless a person is or is reasonably suspected to be engaged in subversive activities. Once a conclusion is reached that the allegations do not disclose any activity which can be reasonably called subversive activity, in our opinion, the petitioner is entitled to the relief of quashing of the notice under R. 4 of the Central Civil Service (Safeguarding of National Security) rules.
(19) We therefore hold that the respondent No.1 was not entitled to issue the notice on the basis of the allegations annexed to the notices because none of the allegations amount to either engagement or a reasonable suspicion of being engaged in a subversive activity. As the respondent No.1 could not issue notices on the basis of the allegations annexed thereto, the notices are invalid and are liable to be quashed. We therefore, quash the notices dated 17-5-61 issued to the petitioners, and declare that no action is liable to be taken against the petitioners on the basis of these notices. The petitioners are allowed with costs.
(20) Petitions allowed.