By Abhinav Garg, Yamini Rajora, National Law University Jodhpur
Editor’s Note: 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. 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. This 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.
The doctrine of pleasure owes its origin to common law. 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.
Public servants have got a special relationship with their employer, viz. the Government which is in some aspects different from the relationship under the ordinary law, between the master and servant. It will, therefore, be appropriate to describe briefly the basic provisions of the Constitution pertaining to services. The Chief Vigilance Officers and officers handling vigilance cases will need to bear them in mind while processing disciplinary cases against Government servants. The member of Defence services or civil services of the union or All-India services hold their office during the pleasure of president. Similarly member of state services holds the office during the pleasure of governor.
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 provisions related to services under Union and State is contained under part XIV of the Indian Constitution.
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.[i] 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[ii]:
“… I take it that persons employed as the petitioner was in the service of the Crown except in cases where there is some statutory provision for a higher tenure of office, are ordinarily engaged in the understanding that they hold their employment at the pleasure of the Crown. So I think that there must be imported into the contract for the employment of the petitioner, the term which is applicable to civil servants in general, namely that the Crown may put an end to the employment at its pleasure.
…It seems to me that it is the public interest, which has led to the term, which I have mentioned being imported into contracts for employment in service of the Crown. The cases cited show that, such employment should be capable of being determined at the pleasure of the Crown, except in certain exceptional cases where it has been deemed to be more for the public good that some restriction should be imposed on the power of the Crown to dismiss its servants.”
The scope of the doctrine was further expanded upon in Shenton v. Smith[iii], 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 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.
In England, the normal rule is that a civil servant of the Crown holds his office during the pleasure of the Crown. This means that his services can be terminated at any time by the Crown, without assigning any reason. Even if there is a contract of employment between the Crown, the Crown is not bound by it. In other words, if a civil servant is dismissed from service he cannot claim arrears of salary or damages for premature termination of his service. The doctrine of pleasure is based on the public policy.
In India, Part XIV of the Constitution of India deals with services under The Union and The State.
Article 310 of the Indian Constitution incorporates the Common law doctrine of pleasure. It expressly provides that all persons who are members of the Defence Services or the Civil Services of the Union or of All-India Services hold office during the pleasure of the President. Similarly, members of the State Services hold office during the pleasure of the Governor. But this rule of English law has not been fully adopted in this Article. A civil servant in India could always sue the Crown for arrears of salary.[iv] The rule is qualified by the words “except” or “expressly provided by the Constitution.”[v] Thus Article 310 itself places restrictions and limitations on the exercise of the pleasure under Article 310 are limited by Article 311(2). The services of permanent Government servant cannot be terminated except in accordance with rules made under Article 309, subject to the procedure in Article 311(2) of the Constitution and the fundamental rights. The above doctrine of pleasure is invoked by the Government in the public interest after a Government servant attains the age of 50 years or has completed 25 years of service. This is constitutionally permissible as compulsory termination of service under F. R. 56 (b) [ministry of personnel, public grievances and pensions] does not amount to removal or dismissal by way of punishment. While the Government reserves its right under F. R. 56 (b) to compulsory retire a Government servant even against his wish, there is a corresponding right of the Government servant under F. R. 56 (c) to voluntarily retire from service by giving the Government three months’ notice. There is no question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under F. R. 56 (c).[vi] Similarly, under Article 310 the Government has power to abolish a post. However, such an action, whether executive or legislative, is always subject to judicial review. The question whether a person whose services are terminated as a result of the abolition of post should be rehabilitated by giving alternative employment is a matter of policy on which the Court has no voice.[vii]
Doctrine of pleasure as developed in England has not been accepted in full in India. It is subject to the provisions of Article 311 which lays down procedural safeguards for civil servants. Thus Article 311 becomes a proviso to Article 310. Therefore, services of any civil servants cannot be terminated at pleasure unless the mandatory provisions of Article 311 have been observed. Doctrine of pleasure is further restricted by the general law of the land which empowers any civil servant to file suit in a court of law for enforcing any condition of his service and for claiming arrears of pay. Power to dismiss at pleasure any civil servant is not a personal right of the President or the Governor as the case may be. It is an executive power which is to be exercised at the advice of council of ministers. The Doctrine of pleasure as contained in Article 310, being a constitutional provision, cannot be abrogated by any legislative or executive law; therefore Article 309 is to be read subject to Article 310. This is not the case in England where Constitution is unwritten and hence the common law doctrine of pleasure can be whittled down by any act of Parliament.
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.
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.
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;”
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[viii]. 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:-
- The C.C.S. (Conduct) Rules, 1964.
- The C.C.S. (C.C.A.) Rules, 1965.
- The Railway (D. & A.) Rules, 1968.
- The C.C.S. (T.S.) Rules, 1965.
Relation of 309 with 246 read with VII schedule
The power to make rules conferred by Article 309 of the Constitution or by other statutes includes the power to add, amend or alter the rules by virtue of Article 367 of the Constitution and Section 21 of the General Clauses Act, 1897. Accordingly, so long as the Constitutional provision are not contravened, the rules governing the conditions of service of Government servants can be altered or amend by the Government from time to time according to the exigencies of the public service without the consent of a Government servant concerned who will be bound by such amendment or alteration in the rules. The Privy Council in Venkat’s case[ix] observed that rules which are manifold in numbers and most minute in particularity are all capable of change from time to time. The Supreme Court also in Grewal Rao’s case[x] observed that numerous rules relating to conditions of service may have to be changed from time to time if the exigencies of public service so require. There is no question of consent of the Government servant concerned at least by reason of the sheer impossibility of securing such consent from every one. It is also open to the Government to alter service rules retrospectively which may affect even the existing incumbents adversely. However, the existing incumbents are generally given protection with a view to avoiding hardship to them. The rights accruing to a Government servant under the conditions of service in force at the time of his retirement cannot be taken away after his retirement.
Article 310 of the Constitution comprises of the basic rules laying down the tenure of office of persons serving the Union or a State except as expressly provided by this Constitution, 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.
Now if such powers are given to president of India and the governor of states then it would be really difficult to exercise power on them so there are certain offices which are outside the purview of Article 310 and Article 311 was put as a restriction to doctrine of pleasure. With lot many cases coming with corruption of civil servants and other government official, it is interesting to know what procedure has been provided in the constitution of India to punish them.
Clause (1) of Article 310 corresponds to the English rule that all service, civil, or military, under the Crown is held at the pleasure of the Crown, so that the public servant may be dismissed from the office at will[xi], without any cause assigned.[xii]
The doctrine of pleasure appointment received constitutional sanction under Article 310, but unlike in United Kingdom, in India, it is not subject to any law made by the Parliament, but is subject to only whatever expressly provided by the Constitution. Therefore the distinction between doctrine of pleasure appointment as it existed in feudal setup and in a democratic setup has to be borne in mind.[xiii]
The service being terminable at the pleasure of the State, there is no limitation as to the grounds upon which the services of a Government servant may be terminated. Once the procedure under Article 311(2) has been complied with, the Courts are not entitled to determine whether the ground or the charge under which Government has proceeded under a Government servant is sufficient to warrant a dismissal.[xiv] But a rule, which provides for dismissal on a ground which unreasonably restricts the fundamental rights of a Government servant, may be challenged as unconstitutional.
The words “pleasure of the President or Governor” do not mean that the Article is applicable only when a Government servant is dismissed by the President or the Governor personally. Under Articles 53(I) and 154 (I), the executive power of the Union or a state may be exercised by the President or Governor either directly or through officers subordinate to him. Hence Article 310 is attracted whenever a person is dismissed by an officer competent to dismiss such person serving under the Union of a State, as the case may be.
Whether the pleasure can be fettered by legislation?
In India, the doctrine of pleasure has been embodied in the Constitution itself, in Article 310(1). The Supreme Court has pointed out that, since the power of the State to dismiss a public servant at its pleasure has been provided in Article 310(1), “except as expressly provided by the Constitution”, it follows that its power cannot be fettered by any statute.[xv] In India, the power to dismiss a Government servant at pleasure is subject to only those exceptions which are specified in the Constitution itself. It cannot be taken away or curtailed by legislation, though the mode of its exercise may be.
Whether the pleasure of the Government can be fettered by contract?
Article 310(1) is not subject to the provisions of any contract. Hence, the pleasure of the President or the Governor to dismiss at pleasure cannot be fettered by any contract to the contrary. Any such contract would be bad as a ‘clog’ on the pleasure or for contravention of Article 310(1).
Where the pleasure of the Government is itself subject to an express provision of the Constitution, the constitutional provision cannot be overridden by the Government by entering into a contract. However, in the case of Satis Anand v. Union of India[xvi], The Supreme Court stated that the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound.
Whether the pleasure under Article 310(1) can be delegated?
Though the contrary opinion was expressed in some cases,[xvii] it is now settled that the pleasure under Article 310(1) need not be exercised by the President or the Governor personally. Article 310 is not outside the scope of Article 154.[xviii] The result is that the pleasure is to be exercised under Article 310(1) on the aid and advice of the Council of Ministers. Further, it being an executive power of the State within the meaning of Article 154, the exercise of pleasure may be delegated to subordinate officers in accordance with the laws or rules made under Article 309 which may prescribe the procedure by which and the authority by whom the pleasure may be exercised.
In short, the pleasure of the President to terminate the services of a Government servant can be exercised by such officers to whom the President or Governor delegates the power in accordance with relevant laws or rules made under Article 309.
Clause (2) of Article 310 states that though all service under the Government is terminable at any time, this clause provides for payment of compensation where service is held under a special contract which provides for payment of compensation and the service is terminated before the expiry of the contractual period.
This clause is, though, not applicable in the following cases:
- In the case of members of Defence Services.
- In the case of members of All India Services.
- In the case of members of a civil service of the Union or of a State.
The scope of this clause is very narrow and is limited to those cases where the post does not belong to any of the regular services and the Government is obliged to enter into a special contract for securing the services of a person having special qualifications.[xix] The compensation is payable only for premature termination of contractual service. This clause enables the President or Governor to enter into a contract with specially qualified persons providing for payment of compensation where no compensation is payable under the doctrine “service at the pleasure of the State”.
3. Restrictions on the doctrine of pleasure – Article 311
Article 311 states that –
“Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State –
(1) 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 a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or 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.
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply –
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) 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 hold such inquiry.
(3) 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 dismiss or remove such person or to reduce him in rank shall be final.”
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.[xx] The pleasure must be exercised in accordance with the procedural safeguards provided by Article 311. Under Indian Constitution several restrictions has been placed on Doctrine of Pleasure. They are as follows:
- The service contract entered between the civil servant and government may be enforced.[xxi]
- The fundamental rights guaranteed under the constitution are restrictions on the pleasure doctrine and therefore this doctrine cannot be resorted too freely and unfairly, Articles 14, 15 and 16 of the Constitution imposed limitations on free exercise of Pleasure Doctrine.[xxii]Article 14 embodies the principle of reasonableness the principle of reasonableness is anti-thesis of arbitrariness. In this way, Article 14 prohibits arbitrary exercise of power under pleasure doctrine. In addition to article 14 of the constitution Article 15 also restricts arbitrary exercise of power in matters of services. Article 15 prohibits termination of service on grounds of religion, race, caste, sex or place of birth or any of them. Another limitation is under Article 16(1) which obligates equal treatment and bars arbitrary discrimination.
- Further the doctrine of pleasure is subject to many more limitations and a number of posts have been kept outside the scope of pleasure doctrine. Under the constitution the tenure of the Judges of the High Courts and Supreme court, of the comptroller and Auditor-General of India, of the Chief Election Commissioner and the Chairman and Members of Public service commission is not at the pleasure of the Government.[xxiii]
Thus, the general principle relating to civil services has been laid down under Article 310 of the Constitution to the effect that government servants hold office during the pleasure of the government and Article 311 imposes restrictions on the privilege of dismissal at the pleasure in the form of safeguards.
The most notable point is that Article 311 is available only when ‘dismissal, removal, reduction in rank is by way of punishment.’ So it is difficult to determine as to when an order of termination of service or reduction in rank amounts to punishment in case of Parshottam Lal Dhingra v. Union of India.[xxiv] The Supreme Court laid down 2 tests to determine when termination is by way of punishment –
- Whether the servant had a right to hold the post or the rank?
- Whether he has been visited with evil consequences?
If a government servant had a right to hold the post or rank 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 protection under Article 311.[xxv] Articles 310 and 311 apply to Government servants, whether permanent, temporary, officiating or on probation.
The procedure laid down in Article 311 is intended to assure, first, a measure of tenure to government servants, who are covered by the Article and 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, in 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.
The protective safe guards given under Article 311 are applicable only to civil servants, i.e. public officers. They can be dismissed from service without assigning any reason.[xxvi] They are not available to defence personnel. In State of U. P. v. A. N. Singh[xxvii], the Supreme Court has held that a person holds a civil post if there exists a relationship of master and servant between the State and the person holding the post. The relationship is established if the State has right to select and appoint the holder of the post, right to control the manner and method of his doing the work and the payment by it of his wages or remuneration.
Dismissal And Removal
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.[xxviii]
Temporary Employees And Probationers
In State of Punjab & Anr. v. Sukh Raj Bahadur[xxix], the Supreme Court laid down the following principles regarding the applicability of Article 311 to temporary servants and probationers.
- The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution.
- The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
- If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.
- An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution.
- If there be a full-scale departmental enquiry envisaged Art. 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said Article.
Termination Of Service When Amounts To Punishment
The protection under Art. 311 is available only when the dismissal, removal or reduction in rank is by way of punishment In Parshotham Lal Dhingra v. Union of India[xxx], the Supreme Court has laid down two tests to determine whether termination is by way of punishment-
- whether the servant had a right to hold the post or the rank (under the terms of contract or under any rule)
- whether he has been visited with evil consequences. If yes, it amounts to punishment.
Compulsory retirement simpliciter is not punishment. It is done in ‘public interest’ and does not caste a stigma on the Government servant. So the employee cannot claim an opportunity to be heard before he is compulsorily retired from service. The Supreme Court of India has issued certain guidelines regarding compulsory retirement. In State of Gujarat v. Umedbhai M. Patel[xxxi], the Court laid down the following principles:
- When the Service of a public servant is no longer useful to the general administration, the officer can be compulsorily retired in public interest.
- Ordinarily the order of compulsory retirement is not to be treated as a punishment under Art. 311 of the Constitution.
- For better administration, it is necessary to chop off dead wood but the order of compulsory retirement can be based after having due regard to the entire service record of the officer.
- Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. Even uncommunicated entries in the confidential report can also be taken in to consideration.
- The order of compulsory retirement shall not be passed as a short cut to avoid departmental inquiry when such course is more desirable.
- If the officer is given promotion despite adverse entries in the C. R., that is a fact favour of the officer.
- Compulsory retirement shall not be imposed as a punitive measure.
In Baikunth Nath v. Chief Medical Officer[xxxii], the Court issued further clarifications regarding compulsory retirement.
- An order of compulsory retirement is not a punishment. It implies no stigma.
- The order has to be passed by the Govt. in public interest. The order is passed on the subjective satisfaction of the Govt.
- Principles of natural justice have no place in the context of an order of compulsory retirement. However courts will interfere if the order is passed mala fide or there is no evidence or it is arbitrary.
- The Govt. shall have to consider the entire record of service before taking a decision in the matter particularly during the later years’ record and performance.
- An order of compulsory retirement is not liable to be quashed by a Court merely on showing that while passing it excommunicated adverse remarks were taken in to consideration. The circumstances by itself cannot be a basis for interference.
No Removal By Subordinate Authority
Removal by subordinate authority does not mean that the dismissal or removal 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.[xxxiii] In Mahesh v. State of U P.,[xxxiv] 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.
Reasonable Opportunity Of Being Heard
In an important judgment in Managing Director, ECIL v. B. Karunakar,[xxxv] 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 reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. It is difficult to say in advance to what extent the said findings would influence the disciplinary authority while drawing its conclusions. The Court affirmed its rulings in Union of India v. Mohd. Ramzan[xxxvi], but held that it will apply only prospectively.
In Khem Chand v. Union of India[xxxvii], the Supreme Court held that the ‘reasonable opportunity’ means:-
- An opportunity to deny his guilt and establish his innocence, which he can do only if he is told what the charges levelled against him are and the allegations on which such charges as based.
- An opportunity to defend himself by cross examining the witness produced against him and by examining himself in support of his defiance.
- An opportunity to make his representation as to why the proposed punishment should not be inflicted on him.
Exclusion Of Opportunity To Be Heard
Article 311(2) provides that reasonable opportunity of being heard is not applicable in the following cases:
- where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
- where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
- 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 hold such inquiry.
An employee who is convicted on criminal charges need not be given an opportunity to be heard, before his dismissal from service. However in Divisional Personal Officer, Southern Railway v. T. R. Chellappan[xxxviii], the Supreme Court held that the imposition of the penalty of dismissal, removal or reduction in rank without holding an inquiry was unconstitutional and illegal. The objective consideration is only possible when the delinquent employee is being heard. But in Union of India v. Tulshiram Patel[xxxix] the Court held that the dismissal, removal or reduction in rank of a person convicted on criminal charges is in public interest, and therefore not violative of Art. 311(2) of the Constitution. The Court thus overruled its earlier decision in Chellappan’s case.
Exceptions To Clause (2) Of Article 311
The provision to Article 311 (2) provides for certain circumstances in which the procedure envisaged in the substantive part of the clause need not be followed.
- Conviction on a criminal charge.– 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.
- Impracticability –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.
- Reasons of security – 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.[xl]
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 recognised as exceptions. The judiciary has given necessary guidelines and clarifications to supplement the law in Article 311.[xli] 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.
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,[xlii] 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[xliii] 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.
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.[xliv]
The Constitution also makes special provision relating to conditions of service of certain categories of public services. The more important of these are given below.
All India Services
Under Article 312 of the Constitution, Parliament has enacted the All India Services Act, 1951. Under Sec. 3 of that Act, the President has framed rules regulating various aspects of conditions of services of persons appointed to the All India Services. The three All India Services created so far are the I.A.S., the I.P.S. and the Indian Forest Service.
Secretariat Staff Of The Parliament
Article 98 of the Constitution empowers the Parliament to regulate by law the recruitment and conditions of service of person appointed to the secretarial staff of either House of Parliament. However, as no such law has yet been made by the Parliament, the recruitment to the Secretariats of the Lok Sabha and the Rajya Sabha and the conditions of service of the staff of the two Houses are regulated by the rules made by the President under Article 98 (2) of the Constitution in consultation with the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha respectively.
Officers Of The Supreme Court
Under Article 146 (2) of the Constitution, conditions of service of officers and servants of the Supreme Court are regulated by rules made by the Chief Justice subject to the approval of the President in certain matters.
Indian Audit And Accounts Department
Under Article 148 (5) the conditions of service of persons serving in the Indian Audit and Accounts Departments are regulated by rules made by President after consultation with the Comptroller and Auditor General of India. No separate rules have been made by the President under this Article. The rules framed by the President for the other civil services and posts are made applicable to persons serving in the Indian Audit and Accounts Department after consultation with the Comptroller and Auditor General of India.
The conditions of service of the Defence personnel paid out of the Defence Services Estimates and who are subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950) are governed by their respective Acts and the rules made there under.
Persons Engaged On Special Contract
On occasions the Government engages the services of specialists or experts or other persons for a specified period on special contract of service. Such contract would normally provide inter alia for the duration of appointment and for conditions regarding termination of service. In some cases the contact may expressly provide that in certain specified matters the conditions of service of the person appointed on contract will be governed by spefic rules governing Government servants in these matters. In certain other cases the rules governing the conditions of service of Government servant may be made applicable to a person appointed on a contract by a general reference to them.
Alterations In Conditions Of Service
Except in the case of appointments made on a specific contract, the relationship between the Government and the Government servant is not based on a contract. The conditions of service to which a Government servant is subject cannot be deemed to constitute the terms of a contract.[xlv] The essential requirement of a contract is agreement between the contracting parties in respect of the terms of the contract. In the case of a Government servant there is no such agreement. The legal relationship between the Government and Government servant has been defined by the courts as something analogous to status, the duties and obligations of which are fixed by law and are quite independent of the will of the person affected.[xlvi]
Alternations In The Conditions Of Service Of Persons Appointed On Contract
A unilateral amendment or alteration of specified conditions of service embodied in a contract of service is not permissible.[xlvii] However, any rules relating to conditions of service of Government servants which are made applicable to a person appointed on contract by a general reference to them in the contact can be changed unilaterally.
Employees Of Departmental Public Sector Undertakings:
Certain undertakings are run and managed by Government departmentally e.g., ordnance factories under the Ministry of Defence, workshops of the P&T Department, workshops under the Railways, Delhi Milk Scheme, etc. Employees of such undertakings are appointed and paid by Government and they are Government servants for all purposes and will be governed by the normal rules and regulations applicable to Government servants. However, provisions of the Factories Act and of the Labour Laws will also apply to them to the extent the employees of such establishments are covered by such laws.
Employees Of Public Sector Undertakings
The employees of public sector undertakings, which have been constituted as corporate bodies constitute separate legal entities under the relevant statutes or which have been registered as companies under the Companies Act are not Government servants.[xlviii] They are governed by rules and regulations made by the respective undertakings under the powers vesting in them under the relevant statutes/Articles of Memorandum. Government servants who may be employed under such undertakings on foreign service terms continue, for purpose of disciplinary action, to be governed by Government rules and regulations.
Tenure Of Service
A basic feature of the employer – employee relationship is the materís power to terminate the services of the servant. The extent of this power, however, varies with different categories of employment. For most categories of employees laws and regulations exist regulating the right of the employer in this behalf. In respect of Government servants the Constitution itself makes certain specific provisions.
With lot many cases coming with corruption of civil servants and other government official it is interesting to know what procedure has been provided in the constitution of India to punish them. With recent cases like that of Pradeep Sharma, the encounter specialist of Mumbai police who has links with underworld and other charges of corruption was dismissed from his post which proves that civil servants can’t make mockery of law if they are guilty then they will be punished and no matter what position they held. So, the main reason for which Articles 310 and 311 has been envisaged 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 a insight of corruption in near future that’s why such provisions were included.
The purpose for which Articles 310 and 311 were envisaged in the Constitution is still relevant in the light of recent instances including the case of Pradeep Sharma, the encounter specialist from Mumbai Police who has links with underworld and faces other charges of corruption and was dismissed from his post. 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.
Edited by Kanchi Kaushik
[i] Radin, Anglo- American Legal History, 228 (1936)
[ii] Dunn v. R, (1896) 1 QB 116
[iii] Shenton v. Smith, 1895 AC 229 (PC)
[iv] State of Bihar v. Abdul Majid, AIR 1954 SC 245
[v] Article 310, M.P. Jain, Indian Constitutional Law, (6th Edition) LexisNexis Butterworths Wadhwa Nagpur, 2010
[vi] Dinesh Chandra v. State of Assam, AIR 1978 SC 17
[vii] K. Rajendran v. State of Tamil Nadu, AIR 1982 SC 1107
[viii] State of Karnataka & Ors. v. Ameerbi & Ors., 2006 (13) SCALE 319.
[ix] R. T. Rangachari v. Secretary of State, AIR 1937 PC 27
[x] D. S. Garewal v. The State Of Punjab And Another, AIR 1959 SC 512
[xi] Union of India v. Tulsiram Patel, AIR 1985 SC 1416
[xii] R. Venkata Rao v. Secretary of State, AIR 1937 PC 31
[xiii] Durga Das Basu, Commentary on the Constitution of India, Vol. 9, (Justice C K Thakker (ed.), 8th Edn., 2011) at pg. 10183
[xiv] State of Orissa v. Vidyabhusan, AIR 1963 SC 779
[xv] State of U.P. v. Babu Ram, AIR 1961 SC 751
[xvi] Satis Anand v. Union of India, AIR 1953 SC 25
[xvii] Sardari Lal v. Union of India, AIR 1971 SC 1547
[xviii] Shamser v. State of Punjab, AIR 1974 SC 2192
[xix] Supra note 5 at p. 10202
[xx] Motiram v. North Eastern Frontier Railway, AIR 1964 SC 600
[xxi] V N Shukla, Constitution of India, 870 (Eastern Book Company, 11th ed., 2011)
[xxii] M.P Jain, Indian Constitutional Law, 2052 (LexisNexis Butterworths Wadhwa Nagpur, 6th ed., 2010)
[xxiii] I P Massey, Administrative Law, 581 (8th ed., 2012)
[xxiv] Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36
[xxv] Jagannath Prasad v. State of U.P., AIR 1961 SC 1254
[xxvi] V. K. Nambudri v. Union of India, AIR 1961 Ker. 155
[xxvii] State of U. P. v. A. N. Singh, AIR 1965 SC 360
[xxviii] Mohammad Abdul Salim Khan v. Sarfaraz, AIR 1975 SC 1064
[xxix] State of Punjab & Anr. v. Sukh Raj Bahadur, AIR 1968 SC 1089
[xxx] Supra note 19
[xxxi] State of Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109
[xxxii] Baikunth Nath v. Chief Medical Officer, (1992) 2 SCC 299
[xxxiii] Mahesh Prasad v. State of U.P., AIR 1950 SC 70
[xxxiv] Mahesh v. State of U.P., AIR 1955 SC 70; Krishna Kumar v. Divisional Assistant EE, Central Railway, AIR 1979 SC 1972
[xxxv] Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727
[xxxvi] Union of India v. Mohd. Ramzan, (1991) 1 SCC 58
[xxxvii] Khem Chand v. Union of India, AIR 1958 SC 300
[xxxviii] Divisional Personal Officer, Southern Railway v. T. R. Chellappan, (1976 ) 3 SCC 1990
[xxxix] Supra note 10
[xl] J.C. Johari, The Constitution of India, A Politico-Legal Study, p. 321.
[xli] K.L. Bhatia, Federalim and Frictions in Centre State Relations, Deep and Deep Publications Pvt. Ltd., New Delhi.
[xlii] Union of India v. Sunil Kumar Sarkar, AIR 2001 SC 1092
[xliii] Supra note 30
[xliv] I. P. Massey, Administrative Law (2003), pp.161-212
[xlv] S. Framji v. Union of India, AIR 1960 Bomb. 14.
[xlvi] Fakir Chand v. Chakravarti, AIR 1954 Cal. 566.
[xlvii] Jogesh v. Union of India, I.L.R. (1954) 56 Assam 383
[xlviii] Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331