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Monday, 27 June 2016

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The Crowns's Fancy: A Look into the Doctrine of Pleasure (Part-II)


[The following article is the Part II of the series. Check out Part I here ]

Article 311
Though doctrine of pleasure is accepted in India as it has developed in England, it has not been completely accepted in India. It is subject to the provisions of Article 311 which provides for procedural safeguards for civil servants.
Article 311 of the Constitution of India states that:
(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 an 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 is 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."[1]
Restrictions/Limitations on the Doctrine of Pleasure
Under Indian Constitution several restrictions has been placed on Doctrine of Pleasure. They are as follows:
(i) The service contract entered between the civil servant and government may be enforced.
(ii)   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. 
(iii) 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.[2]
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.
Persons Entitled To Safeguard:
 Constitutional safeguards provided under Article 311 are not available to all the government servants. The constitution bench of the Supreme Court in S.L. Agarwal (Dr.) v. General Manager, Hindustan Steel Limited[3], generally considered as to who are the persons entitled to the protection of Article 311. The Court identified the following persons:
(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.
Supreme Court in State of Assam v. Kanak Chandra Dutta[4] laid down that civil post in Clause (1) means a post not connected with the defence services and outside the regular civil services.   Further, in Parshottam Lal Dhingra v. Union of India[5], the Supreme Court of India has held that under Article 311 the safeguards are applicable to both permanent and temporary servants.

Constitutional Safeguards Available To the Civil Servants:
There are two constitutional safeguards provided under Article 311 of the Indian Constitution. They are as follows:
1.            Clause (1) of Article 311 addresses itself to the authority who can impose any of the punishments of dismissal or removal. According to this, 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.[6]

2.      Clause (2) of Article 311 provides the procedural essentials to be followed before dismissing, removing or reducing in rank. 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.

Exceptions to the Safeguards Provided Under 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. These are as follows:
(a)    Conviction on Criminal Charge: The Supreme Court has emphasised under Art. 311(2)(a), the disciplinary authority is to regard the conviction of the concerned civil servant as sufficient proof of misconduct on his part. The authority is to decide whether conviction demands the imposition of any penalty and, if so, what penalty. For this purpose, the authority has to take into consideration the judgement of the criminal court, the entire conduct of the civil servant, the gravity of the offense, the impact of the offence on the administration, whether the offence was of a technical or trivial nature, and extenuating circumstances if any.
(b)   Impracticability: This clause applies only when the conduct of 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 consideration is whether the conduct of the government is such as justifies the penalty of dismissal, removal or reduction in rank.
In Union of India v Tulsiram Patel[7]the Supreme Court explaining the scope of the clause 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 cl. (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.”
The Supreme Court further held that the reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary as he is the best judge of the situation.

(c) Reasons of Security: 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 inexpediency of holding an inquiry in the interest of the security of the State. In Tulsiram Patel case the Supreme Court has clarified that the question is not whether the security of the State has been affected or not, for the expression cl(c) is “in the interest of the security of State”. The interest of security of State may be affected by actual act, or even the likelihood of such acts taking place. So the Court has observed:
“What is required under cl.(c) is not the satisfaction of the President or the Governor, that interest of the security of the State is or will be affected but his satisfaction in the interest of security of State, it is not expedient to hold an inquiry as contemplated by Article 311(2)”.
Conclusion
Thus it is obvious that the discrepancies of corruption creeping into civil services were apprehended by the makers of the Constitution. It can be said that the Constitution makers then at that time had known about the discrepancies like corruption to creep into the civil services, so they did not grant immunity from summary dismissal to dishonest or corrupt government servants. Also at the same time the judiciary with its limited judicial review and has ensured that the power to dismiss has not been misused by the authority. With many cases coming into light and also the ones discussed above in relation to corruption among the government officials and the cases of many government officials being linked with anti-social elements the Article 310 and 311 of the Indian Constitution envisaged in the Part XIV provides a means of check and balance so that the government officials do not make a  mockery of Law.



Refrences:
[1] Article 311of the Constitution of India
[2] Dr. J. J. R. Upadhyaya, Administrative Law,  498 ( Central Law Agency Publications, 9th  ed., 2012)
[3] AIR 1970 SC 1150
[4] AIR 1967 SC 884
[5] AIR 1958 SC 36
[6] Mahesh v. Uttar Pradesh, AIR 1955 SC 70
[7] AIR 1985 SC 1416

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