Introduction
The civil services holds the most pivotal position in the progress of the country. We in our constitution with various statutes learn about the independence of judiciary and doctrine of separation of powers which will aims at removing the political influence over the executive in order to achieve the peace. The Constitutional protection to civil servants is given under article 311 doesn’t modify and affect the doctrine of pleasure which is vested with the president or governor or any person who is authorized on the behalf of the president or the governor enshrined in article 310 of the constitution of India. But certainly it only provides it only provides the limitations for it. This article 311 of the constitution only for only protection to the civil servants who are holding civil post and prevent him from arbitrary arrest.
Persons eligible to take shelter under the provision
This protection under article 311 is not accessible to all the government servants. The text of that article refers to members of civil services of the union or all- India service of a state or hold a civil post under the union or a state.
In fact civil servants are paid from the civil list. It is the body of government officials who are recruited in civil occupations that they are neither political nor judicial.
The Constitutional bench of Supreme Court in __S.L. Agarwal [Dr] v. General manager, hindustan steel limited_(1970 AIR 1150)
In this case the court has given the Persons who can be protected under article 311. Those are as follows: 1) Persons who are members of; a) A civil service of the union ; or b) An all India service; or c) A civil service of a state; or 2) Hold a civil post under the union or state
Obstacles that have always arised in relation to the meaning and scope of ‘civil post’ . This expression has been interpreted in many ways. In _state of Assam v. Kanak Chandra dutta_( 1967 AIR 884)
In this case the Supreme Court laid down that civil post in clause (1) means a post not only connected with the defence service but that is something which is outside the regular services.
In _J.S. Sehrawat v. Delhi urban shelter improvement board_( 2017 scc online Del 7219 ( Del HC)
Here Delhi urban shelter improvement board was an autonomous board and employee of that particular board were not civil servants hence the Persons were not entitled to take protection under article 311 of the indian constitution .
Further in _Parshottam Lal dhingra v. Union of India_( 1958 AIR 36)
In this case the Supreme Court held that under article 311 the safeguards are applicable to both tempi and as well as to the permanent servants.
The employees of the company were not considered as civil servants and hence they cannot claim protection under article 311(1) of the constitution of India was clarified in the case _Rakesh dhingra v. National scheduled castes finance and development corporation and others_ (2018 scc online Del 13096)
Constitutional protection that is accessible to the civil servants
There are two Constitutional safeguards provided under article 311 of the Indian constitution. They are as follows:
• clause (1) of article 311– This clause ensures to the civil servants that certain degree of security of tenure.
The government servant can be removed or dismissed by the appointing authority or authority superior to appointing authority or authority equivalent in rank with appointing authority but cannot be removed or dismissed by authority subordinate to appointing authority.
In this appointing authority means the term itself denotes that the authority who is appointing the civil servant and even that authority has the power to remove or dismiss the service of the civil servant. This discretionary power which is given to them should not be delegated to any authority who is subordinate to appointing authority. This was mentioned in the case _state of uttar pradesh v. Ram Naresh_ (1970) 3 scc 173(sc)
The constitution of India nowhere defined the terms dismissal and removal. But according to the departmental rules, that while a person ‘dismissed ‘ once cannot be reappointed under the government whereas no such disqualification is attached to the ‘ removal’.
In _Mahesh v. Uttarpradesh_ (1955 AIR 70)
In this case the court held that no order of dismissal or removal can be made by an authority subordinate to the appointing authority. But if the removing authority is of the same or co-ordinate rank or grade as the appointing authority, then dismissal or removal by such authority is valid .
• clause (2) of article 311- This clause ensured the procedural essentials to be followed before dismissing ,removing or reducing in rank against his will before the expiration of period of his tenure.
Two tests were laid down by Supreme Court in the case _Parshottam Lal dhingra v. Union of India_ (1958 AIR 36)
That 1) whether the employee has the right to hold the post?
2) whether the employee has been visited with any evil consequences?
To determine whether the dismissal or removal or reduction in rank is by the way of punishment.
This article 311(2) mandates the compliance of the principles of natural justice. A civil servant cannot be punished without a) holding an enquiry and b) informing the civil servant about the charges against him and c) giving him a reasonable opportunity of being heard in respect of those charges.
This kind of enquiry contemplated by article 311(2) is generally known as departmental enquiry.
Exceptions to the safeguards provided under article 311(2)
There are certain exceptions under which the civil servants cannot be safeguarded.
• Exception 1: ” Conviction on a criminal charge ” [ proviso 2(a) of article 311] This provides that if the civil servant is dismissed, removed , or reduced in the rank on the ground that his conduct has led to his conviction on criminal charge that this protection which is given under the article 311 will have no application.
If he is prosecuted for any offence under criminal law and he is convicted by the criminal court for that offence he is not given the opportunity of being heard under article 311(2) of the constitution before imposing any of the major penalties.
In _Shankar Dass v. Union of India_ (1985 AIR 772)
In this case the court held that the power has to be exercised by the authority ” fairly, justly and reasonably ” . Hearing need not be given while imposing the penalty after conviction on a criminal charge, but there is the duty to act justly.
• Exception 2 : Impracticability [proviso 2(b) of article 311] It is pre- requisite to know 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 government servant his Constitutional right to an inquiry, the paramount requirement is whether the conduct of the government is such as justifies the penalty of dismissal or reduction in rank.
The scope of this clause was explained in the case _Union of India v. Tulsiram Patel_ (1985 AIR 1416)
That ” 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 require by clause b) what is requisite is that holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation
• Exception 3: Reasons of security [ Proviso 2(c) of article 311]
Under (c) the satisfaction has to be that of the president or the governor as the case may be. The satisfaction must be with respect to the expediency or inexpiediency of holding an inquiry in the interest of the secure of the state. This being the utmost importance all other interests are subordinate to it.
Status of doctrine of pleasure in India
Doctrine of pleasure is a common rule law. Its origin can be traced from England. The rule in England was that a civil servant can hold his office during the pleasure of the crown and the service will be terminated any time the crown wishes the same rule is applied in India. It is based on the public policy. The civil services were introduced by British in India.
Article 310 of the Indian constitution deals with the incorporation the common law doctrine of pleasure. Under the Indian constitution certain categories of people were excluded from the operation of this doctrine those are : a) judges of the Supreme Court b) judges of high Court c) chief election commissioner d) comptroller and auditor General of India.
The civil servants are exempted from this kind of doctrine because they have already been provided with some protection under article 311 of the Indian constitution hence this doctrine application can be limited to them as well.
In the case of _state of bihar v. Abdul majid_( 1954 AIR 245)
The Supreme Court in India declined to follow the rule of the doctrine of pleasure. In this case sub inspector of police was dismissed from his service on the ground of cowardice ,was later reinstated in service. But the government contested his claim for arrears of salary for the period of his dismissal. The Supreme Court in this case upheld his claim arrears of salary on the ground of contract or quantum muruit I.e. for the value of the service rendered.
Conclusion
As the Indian constitution provides some particular safeguards to the civil servants from the arbitrary removal of the service under article 311 which has certain exceptions too. By this provision of the constitution , the innocent people can be protected from the unreasonable removal. Hence any eligible civil servant can be protected under this Constitutional provision
References
- Pandey J.N. , Constitutional law of India(central law agency, Allahabad, 56th Ed 2019)
- Jain. M.P., Indian Constitutional law(lexis nexis , haryana, 18th Ed 2020)
- Subba Rao’s G.C.V , Indian Constitutional law(s Gogia and company, Hyderabad , 10th Ed, 2009)
Author: Nandita Mamani,
Kslu's law school