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.

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Refrences:

[1] Article 311of the Constitution of India

[2] Dr. J. J. R. Upadhyaya, Administrative Law,  498 ( Central Law Agency Publications, 9^th  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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The Crown's Fancy: A Look into the Doctrine of Pleasure (Part- I)

Introduction

The ‘Doctrine of Pleasure’ is a principle of the common law, the origins of which may be traced back to the United Kingdom. The Doctrine of Pleasure is a special prerogative of the British Crown. Similar provisions have been included in the Constitution of India to protect the interest of civil servants as well as ensure national security and look after public interest. The Doctrine of Pleasure says that certain authorities hold office till he or she enjoys the confidence of the President or the Governor. One exception to this Doctrine is that it could be excluded by a Statute of the Parliament. 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.

This doctrine talks of power to dismiss a Government servant at pleasure and is subject to only those exceptions which are specified in the Constitution itself.  Civil Servants are considered as the back bone of the administration. In order to ensure the progress of the country it is essential to protect civil servants from political and personal influence. So provisions have been included in the Constitution of India to protect their interest in order to ensure national security and public interest.

Before understanding the meaning of ‘Doctrine of Pleasure’ in Indian Context, let us first understand the genesis of this term.

Doctrine of Pleasure- Meaning

This Doctrine has its origin in the Common Law of England. The origin of the Doctrine of Pleasure can be traced to a Latin Maxim durante bene placito which means “during good pleasure” or “during the pleasure of the appointer” as opposed to an office held dum bene se gesserit which means “during good conduct”, also called quadiu se bene gesserit (“as long as he shall behave himself well”).[1] Black’s Dictionary defines ‘Pleasure Appointment’ as the assignment of someone to employment that can be taken away at any time, with no requirement for notice or hearing.^[2]

It was thus affirmed by the Court of Appeal in Dunn v. R[3] that 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 held:

“… 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.

The scope of the doctrine was further expanded upon in Shenton v. Smith[4], 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.”

Doctrine of Pleasure in India

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 and 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’. The rule is qualified by the words “except” or “expressly provided by the Constitution.”[5] 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. Thus Article 311 becomes a proviso to Article 310 and services of any civil servants cannot be terminated at pleasure unless the mandatory provisions of Article 311 have been observed.[6] 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.
Doctrine of Pleasure under the Indian Constitution is also based on the same policy considerations as it existed under the common law in England. Though doctrine of pleasure is accepted in India as it has developed in England, it has not been completely accepted in India.

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;”[7]

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[8]. It also provides an authority to the President to make rules for the above purposes until provision in that behalf is made by or under an Act of Parliament.

Article 310

This Doctrine of Pleasure is embodied in India in Article 310(1).

This is the general rule which operates “except as expressly provided by the Constitution.” This means that the Doctrine is subject to constitutional limitations. Therefore, when there is a specific provision in the Constitution giving to servant tenure different from that provided in Article 310, then that servant would be excluded from the operation of the pleasure doctrine.
It reads as follows:           

“Tenure of office of persons serving the Union or a State:

(1)    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.

(2)     Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period, that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post”[9]

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. The following are expressly excluded by the Constitution from the rule of Pleasure. They are[10]:
1.      Supreme Court Judges (Article 124)

2.      Auditor General (Article 148)

3.      High Court Judges (Article 217, 218)

4.      A member of Public Service Commission (Article 317)

5.      The Chief Election Commissioner.

(TO BE CONTINUED IN PART II HERE)

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References:

[1] Union of India v Tulsiram Patel,(1985) 3 SCC 398

[2] Suyash Verma, Origin and Scope of Doctrine of Pleasure in India, available at http://www.desikanoon.co.in/2014/06/origin-and-scope-of-doctrine-of.html, (last visited on 23/03/2016)

[3] (1896) 1 QB 116

[4] 1895 AC 229 (PC)

[5]  Ibid 7

[6] Abhinav Garg,Yamini Rajora, Doctrine of Pleasure-An Analytical Study, available at http://www.lawctopus.com/academike/doctrine-of-pleasure/, (last visited on 23/03/2016)

[7] Article 309of the Constitution of India

[8] State of Karnataka & Ors. v. Ameerbi & Ors., 2006 (13) SCALE 319

[9] Article 310of the Constitution of India

[10]Srividya Sastry, Doctrine of Pleasure as under the Indian Constitution, available at http://www.legalservicesindia.com/article/article/doctrine-of-pleasure-as-under-the-indian-constitution-1643-1.html,(last visited on 23/03/2016)

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The Panama Pandemonium: The leak that shocked the World.

                 The Panama Papers are an unprecedented leak of 11.5m files from the database of the world’s fourth biggest offshore law firm, Mossack Fonseca. The records were obtained from an anonymous source by the German newspaper Süddeutsche Zeitung.[1] Süddeutsche Zeitung  is one of Germany’s leading newspapers which has its headquarters in Munich.  Its team has cooperated with other media organizations on a number of projects, including Offshore Leaks, Swiss Leaks, and Lux Leaks, which ICIJ coordinated.[2]  The records were shared by Süddeutsche Zeitung to the International Consortium of Investigative Journalists (ICIJ) which further shared it with a large network of international partners, including the Guardian and the BBC.

Over a year ago, an anonymous source contacted the Süddeutsche Zeitung (SZ) and submitted encrypted internal documents from Mossack Fonseca. In the months that followed, the number of documents continued to grow far beyond the original leak. Ultimately, SZ acquired about 2.6 terabytes of data, making the leak the biggest that journalists had ever worked with. The source wanted neither financial compensation nor anything else in return, apart from a few security measures.[3]

The data provides how a global industry led by major banks, legal firms, and asset management companies secretly manages the estates of the world’s rich and famous.The documents show ways in which the rich can exploit secretive offshore tax regimes. Twelve national leaders are among 143 politicians, their families and close associates from around the world known to have been using offshore tax havens.[4]

 Vladimir Putin has a $2bn trail.  Among national leaders with offshore wealth are Nawaz Sharif, Pakistan’s prime minister; Ayad Allawi, ex-interim prime minister and former vice-president of Iraq; Petro Poroshenko, president of Ukraine; Alaa Mubarak, son of Egypt’s former president; and the prime minister of Iceland, Sigmundur Davio Gunnlaugsson.[5]

The company at the center of all these stories is Mossack Fonseca. Mossack Fonseca, a Panama-based law firm whose services include incorporating companies in offshore jurisdictions such as the British Virgin Islands. It administers offshore firms for a yearly fee. It sells its shell firms in cities such as Zurich, London, and Hong Kong. Mossack Fonseca operates in havens including Switzerland, Cyprus and the British Virgin Islands, and in the British crown dependencies Guernsey, Jersey and the Isle of Man.[6] Its website boasts of a global network with 600 people working in 42 countries.[7]

The data

The Panama Papers include approximately 11.5 million documents – more than the combined total of the Wikileaks Cablegate, Offshore Leaks, Lux Leaks, and Swiss Leaks. The data primarily comprises e-mails, pdf files, photo files, and excerpts of an internal Mossack Fonseca database. It covers a period spanning from the 1970s to the spring of 2016. 

About two years ago, a whistleblower had already sold internal Mossack Fonseca data to the German authorities, but the dataset was much older and smaller in scope: while it addressed a few hundred offshore companies, the Panama Papers provide data on some 214,000 companies. [8]

The leaked data is structured as follows: Mossack Fonseca created a folder for each shell firm. Each folder contains e-mails, contracts, transcripts, and scanned documents. In some instances, there are several thousand pages of documentation. First, the data had to be systematically indexed to make searching through this sea of information possible. Süddeutsche Zeitung and ICIJ uploaded millions of documents onto high-performance computers. The journalists compiled lists of important politicians, international criminals, and well-known professional athletes, among others. The digital processing made it possible to then search the leak for the names on these lists. The "party donations scandal" list contained 130 names, and the UN sanctions list more than 600. In just a few minutes, the powerful search algorithm compared the lists with the 11.5 million documents.[9]

                               

Courtesy: http://panamapapers.sueddeutsche.de/articles/56febff0a1bb8d3c3495adf4/

The leak has made several tax havens and industrialists who have hidden their money and assets off shore. French President Francois Hollande hailed the “good revelations” which would “increase tax revenues from those who commit fraud”. Jennie Granger, a spokeswoman for UK’ tax authority has exclaimed that the organization has received a great deal of information on offshore companies.[10]

The tax revenues would surely increase from the people at fraud and who have not paid the appropriate amount of taxes. This revelation would also help identify the money stored offshore and bring that back for betterment of country.

^References:

^[1] What are the Panama Papers? A guide to history's biggest data leak, available at http://www.theguardian.com/news/2016/apr/03/what-you-need-to-know-about-the-panama-papers, last visited on 26/05/2016

[2]Frederik Obermaier, Bastian Obermayer, Vanessa Wormer and Wolfgang Jaschensky, About the Panama Papers, available at http://panamapapers.sueddeutsche.de/articles/56febff0a1bb8d3c3495adf4/, last visited on 26/05/2016

[3] Ibid

[4] Supra 1

[5] Ibid

[6] Ibid

[7] Ibid

[8] Supra 2

[9] Ibid

[10] Richard Bilton, Panama Papers:Mossack Fonesca leak reveals elite tax havens, available at http://www.bbc.com/news/world-35918844,  last seen  on 26/05/2016

About the Author:

Sanya Darakhshan Kishwar is a third year BSc.LLB. student from Central University of South Bihar, Gaya. She is currently interning at For the Sake of Argument.She is passionate about books and loves to read case laws in her free time.

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