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CONSTITUTIONAL SAFEGUARDS TO CIVIL SERVANTS
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CONSTITUTIONAL SAFEGUARDS TO CIVIL
SERVANTS
AUTHORED BY
- TARUNA NAYYAR
ABSTRACT
The study contains the concept of
provisions of Article 309, Doctrine of pleasure under Article 310 and 311 of
Indian Constitution.
Article 310 states that the Civil
Servants of the Union or of All-India Services hold office during the pleasure
of the President and member of the State Services hold office during the
pleasure of the Governor. But the rule is qualified with word “except or
“expressly provided by the constitution”. Article 311 provides some
restrictions to the doctrine of pleasure. Researcher has also mentioned some
relevant cases regarding doctrine of pleasure and Article 311.
Article 311 also gives safeguard to
civil servants for protecting their rights so that nobody can do injustice with
them. The ‘Pleasure Doctrine’ is a principle of the common law, the origins of
which may be tracked back to the development of the concept in the United
Kingdom. Similar provisions have been included in the Constitution of India to
protect the interest of civil servants along with the protection of national
security and public interest. The power to dismiss a Government servant at
pleasure is subject to only those exceptions which are specified in the
Constitution itself. It must be ensured that civil servants can’t make mockery
of law if they are guilty and it is precisely for that reason, that the
continued use of Doctrine of Pleasure is required in India.
Doctrine of pleasure does not allowed
anybody to make scoff of the law if civil servant is guilty then he will be
punished for the same.
Key Words – Article
311, Doctrine of Pleasure, Constitutional Safeguards, Civil Servants
INTRODUCTION
Articles 309 to 323 of the
Constitution make elaborate provisions for the Central and Sate services. The
Civil servant is indispensable to the governance of the country in the modern
administrative age. Ministers frame policies and legislatures enact laws, but
the task of efficiently and effectively implementing these policies and laws
falls on the civil servants. The bureaucracy thus helps the political executive
in the governance of the country.
Civil Servants are considered as the
back bone of the administration. In order to ensure the progress of the country
it is essential to strengthen the administration by protecting civil servants
from political and personal influence. So provisions have been included in the
Constitution of India to protect the interest of civil servants along with the
protection of national security and public interest.
The Constitution, therefore, seeks to
inculcate in the civil servant a sense of security and fair play so that he may
work and function efficiently and give his best to the country. Nevertheless,
the overriding power of the government to dismiss or demote a servant has been
kept intact, even though safeguards have been provided subject to which only
such a power can be exercised.
However the service jurisprudence in
India is rather complex, intertwined as it is with legislation, rules,
directions, practices, judicial decisions and with principles of Administrative
Law, Constitutional Law, Fundamental Rights and Natural Justice.
There is a need to ensure that the
disciplinary authorities exercise their powers properly and fairly.
RESEARCH QUESTIONS
I.
Whether
the safeguards enunciated under article 311 of the constitution are adequate to
protect the interest of civil servants.
II.
And
if not, whether the safeguards must be strengthened by adequate measures to
give true protection to the civil servants.
I.
Article 309 empowers
the Parliament and the State legislature regulate the recruitment, and
conditions of service of persons appointed, to public services and posts in
connection with the affairs of the Union or of any State respectively.
II.
Article 310 of the
Constitution of India incorporates the English doctrine of pleasure by clearly
stating that every person who is a member of a defence service or of a civil
service of the Union or of an all India service or 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 or holds any civil post under a State holds office during the
pleasure of the Governor of the State . But this power of the Government is not
absolute.
III.
Article 311 puts
certain restriction on the absolute power of the President or Governor for
dismissal, removal or reduction in rank of an officer.
– ARTICLE
309
Article 309
of the Constitution reads as follows: –
“Recruitment and conditions of service of persons
serving the Union or a State Subject to the provisions of this Constitution,
Acts of the appropriate Legislature may regulate the recruitment, and
conditions of service of persons appointed, to public services and posts in
connection with the affairs of the Union or of any State;”[1]
The above
Article empowers the Parliament to make laws to regulate the recruitment and
conditions of service of persons appointed to public services and posts in
connection with the affairs of the Union [2].
It also authorities the President to make rules for the above purposes until
provision in that behalf is made by or under an Act of Parliament.
Parliament
has not so far passed any law on the subject. Recruitment and the conditions of
service of Central Government servants in general continue to be governed by
rules made by the President under Article 309. The rules made under the Article
which are relevant for the present purpose are[3]:-
I.
The C.C.S. (Conduct) Rules, 1964.
II.
The C.C.S. (C.C.A.) Rules, 1965.
III.
The Railway (D. & A.) Rules, 1968.
IV.
The C.C.S. (T.S.) Rules, 1965.
According to Art.309, Parliament or a
State Legislature may, subject to the provisions of the Constitution, regulate
the recruitment and conditions of service of persons appointed to the public
services and posts in connection with the affairs of the Union or the State, as
the case may be. Pending such legislation, the President, or the Governor, or
any person authorized by him, may make rules in this respect [Proviso to Art
309]. The rules take effect subject to any legislation that may be enacted for
the purpose. This rule-making power is thus in the nature of an interim power
to be exercised by the Executive so long as the Legislature does not act.
The rule-making power is
characterized as ‘legislative’ and not ‘executive’ power as it is a power which
the legislature is competent to exercise but has not in fact exercised.
Rules made by the Government under this power
are regarded as legislative in character and so these rules can even be made to
take effect retrospectively, but the Supreme Court has said that the
President/Governor cannot make such retrospective rules under Art.309 as
contravene Arts.14, 16 or 311 and “affect vested right of an employee”.[4]
In T. K. Rangarajan V. Government of Tamil Nadu,[5] the Government employees had gone on
strike for their demands. The Government employees had challenged the validity
of the Tamil Nadu act and the Ordinance. The Courts said that “Government
employees cannot hold society to ransom/going on strike”. The Bench said that
if the employees felt aggrieved by any Government action, they should seek
redressal from the statutory machinery provided under different statutory
provisions for redressal of their grievances. The Courts said strike as a
weapon is mostly misused which results in chaos and total mal-administration.
Strike affects the society as a whole and particularly when 2 lakh employees go
on strike the entire administration comes to a grinding halt. The Court also
agreed with the contention of the State government that 90% of the revenue
raised through direct tax was spent on the 12 lakh government employee in the
state. Thus in a society where there is large scale employment and a number of
qualified persons are eagerly waiting for employment strike cannot be justified
on any equitable grounds. The Supreme Court has also held that Government
servant has no right to go on strike, neither moral nor statutory.[6]
DOCTRINE OF
PLEASURE – ARTICLE 310
In England a civil servant holds his
office during the pleasure of the Crown. His services can be terminated at any
time by the Crown without giving any reasons.
Article 310 of the
Constitution of India incorporates the English doctrine of
pleasure by clearly stating that every person who is a member of a defence service
or of a civil service of the Union or of an all India service or 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 or holds any civil post under a State holds office during
the pleasure of the Governor of the State . But this power of the Government is
not absolute. Article 311 puts certain restriction on the absolute power of the
President or Governor for dismissal, removal or reduction in rank of an
officer.[7]
The ‘Pleasure
Doctrine’ is a principle of the common law, the origins of which may be traced
back to the development of the concept in the United Kingdom.[8] It
is a historical rule of common law that a public servant under the British
Crown had no fixed tenure, but held his/her position at the absolute discretion
of the Crown. Such rule had its origin in the Latin phrase “durante bene
placito” (“during good pleasure”), or “durante bene placito regis”
(“during good pleasure of the King”). It was thus affirmed by the Court of
Appeal in Dunn v. R[9]
The scope
of the doctrine was further expanded upon in Shenton v. Smith[10],
where the Privy Council went as far as observing that the pleasure doctrine was
a ‘necessity’ because:
“The
difficulty of dismissing servants whose continuance in office is detrimental to
the State would, if it were necessary to prove some offence to the satisfaction
of a jury, be such as to seriously impede the working of the public service.”
It is thus
not surprising that the doctrine was imported into the legal system of
pre-partition Indian subcontinent, by virtue of the Government of India Act,
1935. Recognition of such may be found in pronouncements of the Apex Courts of
both India and Pakistan, to that effect.
In Britain, traditionally, a servant
of the crown holds office during the pleasure of the crown. This is the common
law doctrine. The tenure of office of a civil servant, except where it is
otherwise provided by a statue, can be terminated at any time at will without
assigning any cause, without notice. The civil servant has no right at common
law to take recourse to the courts, or claim any claim any damages for wrongful
dismissal. He cannot file a case for
arrears of his salary. The crown is not bound even by any special contract
between it and a civil servant for the theory is that the crown could not
fetter its future executive action by entering into a contract in matters
concerning the welfare of the country.
The justification for the rule that
the crown should not be bound to continue in public service any person whose
conduct is not satisfactory. The doctrine is based on public policy, the
operation of which can be modified by an Act of parliament. In practice,
however, things are different as many inroads have been made now into the
traditional system by legislation relating to the employment, social security
and labour relations. As De Smith observers: “the remarkably high degree of
security enjoyed by established civil servant surpassed only by judiciary, was
not recognized by rules applied in the courts”.
A similar rule is embodied in article
310 (1) which lays down that the defence personnel and civil servant of the
Union and the members of an All-India service, hold office during the ‘Pleasure
of the President’. Similarly, a civil servant in a state holds office ‘during
the pleasure of the Governor’.[11]
The Constitution lays down the
following limitations on the exercise of the doctrine of pleasure.
I.
The
pleasure of the president or governor is controlled by provisions of Article
311, so the field covered by article 311 is excluded from the operation of the
doctrine of pleasure.[12]
The pleasure must be exercised in accordance with the procedural safeguards
provided by article 311.
II.
The
tenure of the following Services have been expressly excluded by the
Constitution from the rules of pleasure under Article 310. They are not
dependent on the pleasure of the president or the governor, as the case may be.
These posts are expressly excluded from the operation of the doctrine of
pleasure. [13]
i.
The
Supreme Court Judges [Art. 124],
ii.
Auditor-General
[Art.148],
iii.
High
Court Judges [Arts, 217, 218],
iv.
Chairman
and members of a Public Service Commission [Art 317],
v.
And
the Chief Election Commissioner [14]
III.
The
doctrine of pleasure is subject to the fundamental rights. [15]
SERVANTS –
ARTICLE 311
The procedure laid down in Article
311 is intended to assure –
I.
First,
a measure of security of tenure to government servants, who are covered by the
Article.
II.
Secondly,
to provide certain safeguards against arbitrary dismissal or removal of a government
servant or reduction to a lower rank.
These provisions are enforceable in a
court of law. Where there is an infringement of Article 311, the orders passed
by the disciplinary authority are void ab initio and in the eye of law “no more
than a piece of waste paper” and the government servant will be deemed to have
continued in service or in the case of reduction in rank, inn his previous post
throughout. Article 311 is of the nature of a proviso to Article 310. The
exercise of pleasure by the President under Article 310 is thus controlled and
regulated by the provisions of Article 311.
Article 311 is applicable only to one
class of public officers i.e. those who hold a civil post under the Union or
States. The term civil post means an appointment, or office or employment on
the civil side of the administration.[16]
Following persons may claim the
safeguards –
i.
Members
of the civil services of the union
ii.
Members
of All- India Services
iii.
Members
of the Civil services of the states
iv.
Persons
holding civil posts under the union or states
Members of the defence services are
thus excluded from the scope of Article 311. They cannot claim the protection
of Article 311.
Article 311 provides the following
safeguards to civil servants against any arbitrary dismissal from their posts:
(1) No person holding a civil post under the Union or the States shall be
dismissed, or removed by authority subordinate to that by which he was
appointed.[17]
This does not mean that the removed
or dismissed must be by the same authority who made the appointment or by his
direct superior. It is enough if the removing authority is of the same or
co-ordinate rank as the appointing authority.[18]
For the purposes of Clause (1) of
Article 311, the post which the government servant holds substantively is to be
taken into consideration. The temporary or quasi – permanent appointment of the
government servant earlier to his appointment to the susbordinate post, cannot
be taken into consideration.[19]
It is the authority who actually appointed
person to the post who shall be the “appointing authority” and not the
authority empowered under the rules to make such appointment. [20]
In Mahesh v. State of Uttar Pradesh[21]
The person appointed by the Divisional Personnel Officer, E.I.R., was dismissed
by the Superintendent, Power, E.I.R. the Court held the dismissal valid as both
the officers were of the same rank. [22]
(2) No such person shall be “dismissed”, “removed” or “reduced” in rank
except after an inquiry in which he has been informed of the charges against
him and given a reasonable opportunity of being heard in respect of those
charges.[23]
DISMISSED,
REMOVED OR REDUCED
The protection under Article 311 (2)
is available only where dismissal, removal or reduction in rank is proposed to
be inflicted by way of punishment and not otherwise. ‘Dismissal’ and ‘removal’
are synonymous terms but in law they acquired technical meanings by long usage
in Service Rules. There is, however, one distinction between the ‘dismissal’
and ‘removal’, that is, while in case of ‘dismissal’ a person is debarred from
future employment, but in case of ‘removal’ he is not debarred from future
employment.
I.
Termination of Service when amounts
to punishment –
The protection of Art.311
is available only when ‘the dismissal, removal or reduction in rank is by way
of punishment’. The main question, therefore, is to determine as to when an
order for termination of service or reduction in rank amounts to punishment.[24]
In Parshottam Lal Dhingra V. Union of India[25] the Supreme Court has laid down two tests to
determine whether the termination is by way of punishment-
i.
Whether
the servant had a right to hold the post or the rank;
ii.
Whether he has been visited with evil
consequences.
If a Government servant
had a right to hold the post or rank either under the terms of any contract of
service, or under any rule, governing the service, then the termination of his
service or reduction in rank amounts to a punishment and he will be entitled to
the protection of Art. 311.
The Supreme Court held
that the appellant had no right to the post as he was merely officiating in the
post and the implied term of such appointment was that it was terminable at any
time on reasonable notice by the Government. The appellant was not reduced in
rank by way of punishment and, therefore, he cannot claim the protection of
Art.311 (2). In a case where a Government servant has no right to hold the post
or rank his termination from service or reversion does not amount to
punishment, since it does not forfeit any right of the servant to hold the post
or rank as he never had that right.[26]
II.
Suspension is not punishment –
The suspension of a
Government servant from service is neither dismissal or removal nor reduction
in rank; therefore, if a Government servant is suspended he cannot claim the
constitution guarantee of reasonable opportunity. When, the services of a
Government servant are terminated for bonafide reasons as a consequence of the
abolition of the post held by him, Art. 311(2) need not be complied with.
In Divisional Personnel Officer. Western Railway V. Sunder Das,[27] where
an employee is suspended during the disciplinary inquiry but the dismissal
order is set aside by the court and a fresh inquiry is ordered against him on
the same charge it was held that the initial suspension continued till the
final order of dismissal was passed and the employee was entitled to
subsistence allowance only and not full wages.[28]
III.
Compulsory retirement simpliciter not
punishment –
A premature retirement of
a Government servant in ‘public interest’ does not caste a stigma on him and no
element of punishment is involved in it and hence the protection of Art. 311
will not be available. The expression in the context of premature retirement
has a well settled meaning and refers to cases where the interest of public
administration require the retirement of a Government servant who with the
passage of years has prematurely, ceased to possess the standard of efficiency,
competence and utility called for by the Government service to which he
belongs. The power to compulsorily retire a government servant is one of the
face of the doctrine of pleasure incorporated in Art.310 of the Constitution.
The object of compulsory retirement is to weed out the dead wood in order to
maintain efficiency and initiative in the service and also to dispense with the
services of those whose integrity is doubtful so as to preserve purity in the
administration.
In State of Gujarat v. Umedbhai M. Patel,[29] the Supreme Court has laid down following
principles governing compulsory retirement-
i.
When
the services of a public servant are no longer useful to the general
administration, the officer can be compulsorily retired for the sake of public
interest.
ii.
Ordinarily
the order of compulsory retirement is not to be treated as a punishment under
art.311 of the Constitution.
iii.
For
better administration, it is necessary to chop off wood but the order of
compulsory retirement can be based after having due regard to entire service
record of the officer.
iv.
Any
adverse entries made in the confidential record shall be taken note of and be
given due weightage in passing such order.
v.
Even
uncommunicated entries in the confidential record can also be taken into
consideration.
vi.
The
order of compulsory retirement shall not be passed as a short cut to avoid
departmental inquiry when such course is more desirable.
vii.
If
the officer is given promotion despite adverse entries made in the confidential
record that is a fact in favour of the officer.
viii.
Compulsory
retirement shall not be imposed as punitive measure.[30]
Originally, the opportunity to defend
was given to a civil servant at two stages:
I.
At
the enquiry stage, and this is an accord with the rule of natural justice that
no man should be condemned without hearing;
II.
At
the punishment stage, when as a result of enquiry the charges have been proved
and any of three punishments, i.e. dismissal, removal or reduction in rank were
proposed to be taken against him.
The Constitution (42nd Amendment)
Act, 1976, has abolished the right of the Government servant to make
representation at the second stage of the inquiry. The newly added proviso to
Art.311 (2) makes it clear that if after inquiry it is proposed to impose upon
a person any of the three punishments, i.e., dismissal, removal or reduction in
rank, they may be imposed on the basis of the evidence given during such
inquiry and he shall not be entitled to make any representation. The above
mentioned punishments will be imposed on the basis of the evidence adduced
during the time of inquiry of charges against the Government servant.[31]
In Khem Chand V. Union of India,[32] The
Supreme Court held that the ‘reasonable opportunity envisaged by Art.311
includes:
I.
An
opportunity to deny his guilt and establish his innocence which can be only
done if he is told what the charges against him are and the allegation on which
such charges are based;
II.
An
opportunity to defend himself by cross-examining the witnesses produced against
him and by examining himself or any other witnesses in support of his defence;
and also
III.
An
opportunity to make his representation as to why the proposed punishment should
not be inflicted on him, which he can only do so if the competent authority,
after the enquiry is over and after applying his mind to the gravity of the
charges, tentatively proposes, to inflict one of the three major punishments
and communicates the same to the Government servant. [33]
In Managing Director, ECIL v. B. Karunakar,[34] the Supreme Court has held that when
the enquiry officer is not disciplinary authority, the delinquent employee has
a right to receive the copy of the enquiry officer’s report so that he could
effectively defend himself before the disciplinary authority. A denial of the
enquiry officer’s report before the disciplinary authority takes its decision
on the charges is a denial of the principles of natural justice.[35]
The second proviso to Art 311 (2), in
Clauses (a), (b) and (c): lays down three situations with Art 311 (2) does not
apply. These clauses are as follows:
I.
Where a civil servant is dismissed or
removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.[36]
II.
Where an authority empowered to
dismiss or remove a civil servant or reduce him in rank is satisfied that, for
some reason to be recorded by it in writing, it is not reasonably practicable to hold such inquiry.[37]
III.
Where the President or the Governor,
as the case may be, is satisfied that in the interest of the security of the state, it is not expedient to give
to a civil servant such an opportunity.[38]
One of the circumstances
excepted by clause (a) of the provision is when a person is dismissed or
removed or reduced in rank on the ground of conduct which has laid to his
conviction on a criminal charge. The rationale behind this exception is that a
formal inquiry is not necessary in a case in which a court of law has already
given a verdict. However, if a conviction is set aside or quashed by a higher
court on appeal, the Government servant will be deemed not to have been
convicted at all. Then the Government servant will be treated as if he had not
been convicted at all and as if the order of dismissal was never in existence.
If the appointing authority were aware of the conviction before he was
appointed, it might well be expected to refuse to appoint such a person but if
for some reason the fact of conviction did not become known till after his
appointment, the person concerned could be discharged from service on the basis
of his conviction under clause (a) of the proviso without following the normal
procedure envisaged in Article 311.
In Shankar Dass V. India[39]
Where the order imposing the penalty of dismissal was set aside as the court
found that in the fact-situation, the penalty of dismissal from service was
whimsical. The Supreme Court emphasized that the power under cl. (a) of the
second proviso to Art. 311 (2) must be exercised “fairly, justly and
reasonably” and that “right to impose a penalty carries with it the duty to act
justly”.[40]
In Dy. Director of Collegiate education, Madras
v. S. Nagoor Meera[41] The Supreme Court held that Art.311 (2) (a)
speaks of “conduct which has led to his conviction on a criminal charge”. It
does not speak of sentence or punishment awarded. The court has ruled that the
appropriate course in such cases would be to take action as soon as a
government servant is convicted of a criminal charge and not to wait for the
appeal or revision against conviction. If however he is acquitted on appeal or
other proceeding, the order can always be revised. If the government servant is
reinstated, he will be entitled to all the benefits to which he would have been
entitled to, had he continued in service.[42]
Clause (b) of the
proviso provides that where the appropriate disciplinary authority is
satisfied, for reasons to be recorded by that authority in writing that it does
not consider it reasonably practicable to give to the person an opportunity of
showing cause, no such opportunity need be given. The satisfaction under this
clause has to be of the disciplinary authority that has the power to dismiss,
remove or reduce the Government servant in rank. As a check against an
arbitrary use of this exception, it has been provided that the reasons for
which the competent authority decides to do away with the prescribed procedures
must be recorded in writing setting out why it would not be practicable to give
the accused an opportunity. The use of this exception could be made in case,
where, for example a person concerned has absconded or where, for other
reasons, it is impracticable to communicate with him.
The important thing
to note is that this clause applies only when the conduct of the government
servant is such as he deserves the punishment of dismissal, removal or
reduction in rank. Before denying a government servant his constitutional right
to an inquiry, the paramount consideration is whether the conduct of the
government servant is such as justifies the penalty of dismissal, removal or
reduction in rank.
In Union of India V. Tulsiram Pate,l[43]
explaining the scope of the clause, the Supreme Court has said, whether it was
practicable to hold the inquiry or not must be judged in the context of whether
it was reasonably practicable to do so. It is not a total or absolute
impracticability which is required by clause (b). What is requisite is that the Holding of the
inquiry is not practicable in the opinion of a reasonable man taking a
reasonable view of the prevailing situation. [44]
The decision of the
disciplinary authority is final [Art. 311 (3)], provided it records the reasons
in writing for denying the inquiry to the concerned civil servant. But a
disciplinary authority is not expected to dispense with a disciplinary inquiry
lightly or arbitrarily, or out of ulterior motives, or merely in order to avoid
the holding of an inquiry, or because the department’s case against the
government servant is weak and must fail.
In such a case, the court can strike down the order dispensing with the
inquiry as also the order imposing penalty.
The Tulsiram Patel
ruling has been applied in the following fact-situations under Art. 311(2)(b):
In Satyavir Singh V. Union of India[45]
The Supreme Court upheld the impugned order of dismissal saying that clause (b)
of the second proviso to Art.311 was properly applied in the facts of the case.
As held in Tulsiram Patel, “it will not be reasonably practicable to hold an
inquiry where an atmosphere of violence or of general indiscipline and
insubordination prevails.” In the situation then prevailing, prompt and urgent
action was required to bring the situation under control.
People’s Union for Civil Liberties V. Union Of India,[46]
A sub-inspector of police was dismissed by the Senior Superintendent of Police
after dispensing with the inquiry invoking proviso (b) to clause (2) of
Art.311. The order of dismissal was challenged but the same was upheld by the
Supreme Court. After going through the facts of the case, the Court concluded
that the Senior Superintendent of Police “cannot be said to be not justified in
holding that it is not reasonably practicable to hold an inquiry against the
sub-inspector.”
Under proviso (c) to
Article 311 (2), where the President is satisfied that the retention of a
person in public service is prejudicial to the security of the State, his
services can be terminated without recourse to the normal procedure prescribed
in Article 311 (2).The satisfaction referred to in the proviso is the
subjective satisfaction of the President about the expediency of not giving an
opportunity to the employee concerned in the interest of the security of the
State. That indicates that the power given to the President is unfettered and
cannot be made a justifiable issue, as that would amount to substituting the
satisfaction of the court in place of the satisfaction of the President.[47]
While under clause (b) above, the
satisfaction has to be that of the disciplinary authority, under clause (c) it
is that of the President or the Governor, as the case may be. The satisfaction
of the president or the Governor must be with respect to the security to the
expediency or in expediency of holding and inquiry in the interest of the
security of the state. Security of state, being paramount all other interests
are subordinated to it.
The satisfaction mentioned here is
subjective and is not circumscribed by any objective standards. Whereas under
Art 311 (2) (b) as stated above, the competent authority is required to record
in writing the reason for its satisfaction that it is not reasonably
practicable to hold an inquiry, there is no such requirement for recording the
reason in Cl. (c).
In BK Sardari Lal V. Union of India,[48] the Supreme Court ruled that under this
constitutional provision, ‘satisfaction’ must be that of the President of or
Governor personally and that function could not be allocated or delegated to
anyone else. But this view was overruled in Shamsher Singh, and Sripati Ranjan.
Thus, ‘personal satisfaction’ of the President or the Governor is not necessary
to dispense with the inquiry. Such ‘satisfaction’ may be arrived at by anyone
authorized under the Rules of Business. It is the satisfaction of the president
or the Governor in the constitutional sense.
“If in respect of any such person as aforesaid, a question arises whether
it is reasonably practicable to hold such inquiry as is referred to in Clause
(2), the decision thereon of the authority empowered to discuss or remove such
person or to reduce him in rank shall be final.”[49]
This finality clause refers mainly to
the situation covered by Art.311 (2) (b), proviso II, mentioned above. The
Supreme Court has however ruled that Art. 311(3) does not completely bar
judicial review of the action taken under Clause 2(b) of Art.311, second
proviso.
In Union of India V. Tulsiram Patel,[50] the Supreme Court held that: “the
finality given by clause (3) of Art.311 to the disciplinary authority’s
decision that it was not reasonably practicable to hold the inquiry is not
binding upon the Court. The Court will also examine the charge of mala fides,
if any, made in the writ petition. In examining the relevancy of the reasons,
the Court will consider the situation which according to the disciplinary
authority made it come to the conclusion that it was not reasonably practicable
to hold the inquiry. If the Court finds that the reasons are irrelevant then
the recording of it satisfaction by the disciplinary authority would be an
abuse of power conferred upon it by clause (b) and would take the case out of
the purview of that clause and the impugned order of penalty would stand
invalidated. In considering the relevancy of the reasons given by the
disciplinary authority, the Court will not however, sit in judgment over them,
like a court of first appeal.”
In Jaswant Singh V. State of Punjab,[51]the
Supreme Court has reiterated the proposition that in spite of Art. 311(3) the
“finality can certainly be tested in a court of law and interfered with if the
action is found to be arbitrary or mala fide or motivated by extraneous
consideration or merely a ruse to dispense with the inquiry.
Even the President’s satisfaction
under Cl. (c) mentioned above, can be examined by the court on such grounds as
mala fides, or being based wholly on extraneous and/or irrelevant grounds.
ARE ARTICLES 310 AND 311 CONTRARY TO ARTICLE 20
(2) OF THE INDIAN CONSTITUTION OR TO THE PRINCIPLES OF NATURAL JUSTICE?
When a
government servant is punished for the same misconduct under the Army Act and
also under Central Civil Services (Classification and Control and Appeal) Rules
1965 then the question arises that can it be brought the ambit of double
jeopardy. The answer was given by the Honourable Supreme Court in the case
of UOI v. Sunil Kumar Sarkar,[52] in
which it was held that the court martial proceedings is different from that of
central rules, the former deals with the personal aspect of misconduct and
latter deals with disciplinary aspect of misconduct.
Ordinarily,
natural justice does not postulate a right to be presented or assisted by a
lawyer, in departmental inquiries but in extreme or particular situation the
rules of natural justice or fairness may require that the person should be
given professional help.
A five
Judge Constitution Bench comprising the C. J.: M. N. Venkatachaliah and B. B.
Sawant, K. Ramaswamy, S. Mohan and B. P. Jeevan Reddy, JJ., held in a case that
since the denial of the report of the enquiry officer First Schedule reasonable
opportunity to the employee to prove his innocence and a breach of principles
of natural justice, it follows that the statutory rules if any, which deny the
report to the employee, are against the principles of natural justice and,
therefore, invalid. The delinquent employee will therefore be entitled to a
copy of the report even if the statutory rules do not permit the furnishing of
the report or are silent on the subject. The reason why the enquiry officer’s
report is considered an essential part of the reasonable opportunity at the
first and also a principle of natural justice is that the findings recorded by
the enquiry officer form an important material before the disciplinary
authority which along with the evidence is taken into consideration by it to
come to its conclusions.[53]
The mandate
of ‘reasonable opportunity of being heard’ in departmental inquiry encompasses
the Principles of Natural Justice which is a wider and elastic concept to
accommodate a number of norms on fair hearing. Violation of Principles of
Natural Justice enables the courts to set aside the disciplinary proceedings on
grounds of bias and procedural defects.[54]
CONCLUSION
The
Constitution of India through Article 311 thus protects and safeguards the
rights of civil servants in Government service against arbitrary dismissal,
removal and reduction in rank. Such protection enables the civil servants to
discharge their functions boldly, efficiently and effectively. The public
interest and security of India is given predominance over the rights of
employees. So conviction for criminal offence, impracticability and
inexpediency in the interest of the security of the State are recognized as
exceptions. The judiciary has given necessary guidelines and clarifications to
supplement the law in Article 311. The judicial norms and constitutional
provisions are helpful to strengthen the civil service by giving civil servants
sufficient security of tenure. But there may arise, instances where these
protective provisions are used as a shield by civil servants to abuse their
official powers without fear of being dismissed.
Disciplinary
proceedings initiated by Government departments against corrupt officials are
time consuming. The mandate of ‘reasonable opportunity of being heard’ in
departmental inquiry encompasses the Principles of Natural Justice which is a
wider and elastic concept to accommodate a number of norms on fair hearing.
Violation of Principles of Natural Justice enables the courts to set aside the
disciplinary proceedings on grounds of bias and procedural defects.
Now days we
see so many of corruptions appear which is done by civil servants and other
government official and it is interesting to know what procedure has been
provided in the constitution of India to punish them. In one of recent case it
was held that Pradeep Sharma who was the encounter specialist of Mumbai police
has links with underworld and other charges of corruption was lead to his
dismissal from his post which vindicates that civil servants can’t make scoff
of law if they are guilty then they will be punished and no matter what
position they held. Thus, the main reason for which Articles 310 and 311 has
been brought in the constitution by the makers of constitution is still working
today but it is interesting to note that the framer of the constitution had an
insight of corruption in near future that’s why such provisions were included.
The purpose
for which Articles 310 and 311 were made in the Constitution is still relevant
in the light of recent instances including the case of Pradeep Sharma, the
encounter master from Mumbai Police who has links with underworld and faces
other charges of corruption and was dismissed from his post. It must be keep in
mind that civil servants can’t make scoff of law if they are guilty and it is
precisely for that reason, that the continued use of Doctrine of Pleasure is
required in India.
[1] Article 309 of The Constitution of
India 1950
[2] State
of Karnataka & Ors. v. Ameerbi & Ors., 2006 (13) SCALE 319
[3] Doctrine
of Pleasure – An Analytical Study, Available at https://www.lawctopus.com/academike/doctrine-of-pleasure/#_ednref8 ( Last
Accessed on 18th April 2019)
[4] Prof M P JAIN Indian Constitutional
Law (LEXISNEXIS Butterworths Wadhwa Nagpur Fifth Ed.2008) at 1428
[5] T. K. Rangarajan V. Government of
Tamil Nadu, AIR 2003 SC 3032
[6] Ibid
[7] Constitutional Protection to Civil
Servants, By Dr. A. Prasanna
[8] Radin, Anglo- American Legal History,
228 (1936)
[9] Dunn v. R, (1896) 1 QB 116
[10] Shenton v. Smith, 1895 AC 229 (PC)
[11] Article 310(1) of The Indian
Constitution, 1950
[13] Prof M P JAIN Indian
Constitutional Law (LEXISNEXIS Butterworths Wadhwa Nagpur Fifth Ed.2008) at
1431
[14] Ibid
[15] UOI v. P.D More, AIR 1964 SC 630
[16] Sher Singh v. State of M.P, AIR
1955 Nag. 175
[17] Art 311 (1) of the Indian
Constitution 1950
[18] Dr. J.N.PANDEY The Constitutional
Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 656
[19] Daljit Singh v. UOI, AIR 1970
Delhi 52
[20] Bachubha Ramsinghji v. Shivlal,
AIR 1970 Guj. 180
[21]Mahesh v. State of Uttar Pradesh
AIR 1955 SC 70
[22] Ibid
[23] Article 311(2) of the Constitution
of India, 1950
[24] Dr. J.N.PANDEY The Constitutional
Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 657
[26] Ibid
[27]Divisional Personnel Officer.
Western Railway V. Sunder Das AIR 1981 SC 2177
[28] Ibid
[30] Ibid
[31] Dr. J.N.PANDEY The Constitutional
Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 656
[32] Khem Chand V. Union of India, AIR
1958 SC 300
[33] Ibid
[34]Managing Director, ECIL v. B.
Karunakar, 1993(4) SCC 727
[35] Ibid
[36] Art. 311(2) (a) of the
Constitution of India, 1950
[37] Art. 311 (2) (b) of the
Constitution of India, 1950
[38] Art. 311 (2) (c) of the
Constitution of India, 1950
[40] Ibid
[41] Dy.
Director of Collegiate education, Madras v. S. Nagoor Meera AIR 1995 SC
1364
[42] Ibid
[43] Union
of India V. Tulsiram Patel, AIR 1985 SC 1416
[44] Ibid
[45] Satyavir
Singh V. Union of India, 1985 (4) SCC 252
[46] People’s
Union for Civil Liberties V. Union Of India, AIR 1997 SC 1203
[47] J.C.
Johari, The Constitution of India, A Politico-Legal Study, p. 321
[49] Article 311(3) of the Constitution
of India, 1950
[50] Union of India V. Tulsiram Patel,
AIR 1985 SC 1416
[51] Jaswant Singh V. State of Punjab,
AIR 1991 SC 385
[52] Union
of India v. Sunil
Kumar Sarkar, AIR 2001 SC 1092
[53] International Journal of Trend in
Scientific Research and Development (IJTSRD)
[54] I.
P. Massey, Administrative Law (2003), pp.161-212
Article Information
CONSTITUTIONAL SAFEGUARDS TO CIVIL SERVANTS
Authors: TARUNA NAYYAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/17
- Issue 7
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International Journal for Legal Research and Analysis
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