This article has been written by Ms. Shreya Bhattacharya, a 2^nd year BBA LL. B student at Adamas University, Kolkata.

Introduction

It is intriguing to learn what procedure the Indian constitution has set forth to penalize dishonest public workers and other government officials considering the numerous situations involving these individuals. Common law is where the doctrine of pleasure first emerged. The same law that applies in India also applies in England, where a government servant can hold office at the whim of the monarch and have their employment terminated at any time. Members of the Defense Services, Union Civil Services, or All-India Services hold their positions during the President’s pleasure. Similarly, a state employee holds the position at the governor’s discretion. Part XIV of the Indian constitution contains the provisions pertaining to services provided by the union and state.

Article 310

Except as otherwise provided by this Constitution, the President may remove any person from office who is a member of the military, a civil service of the Union, an All-India Service, or holds a position related to the military or a civil post under the Union, and the Governor of a State may remove any person from office who is a member of the civil service of a State or holds a position related to the civil service of a State.

“Any contract under which a person, who is not a member of a Defence service, 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, notwithstanding the fact 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, the Governor of the State, if before the end of a predetermined period that office is abolished or he is obliged to resign for reasons unrelated to any misconduct on his part, allow for the payment to him of compensation, as the case may be, in order to acquire the services of a person possessing exceptional qualities.

The article 311 serves as a safeguard for government employees. 

(1) No person who is a member of the Union’s civil service, an all-India service, a State’s civil service, or who holds a civil post for the Union or a State may be fired or otherwise removed by an authority below the one that appointed him.

(2) No such person as aforesaid shall be dismissed, demoted, or lowered in rank except following an inquiry in which he has been apprised of the allegations against him and afforded a reasonable opportunity to be heard in relation to those allegations: With the caveat that, if after such an investigation, it is proposed to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence presented during such an inquiry and it shall not be necessary to give such person any opportunity to make representations on the penalty proposed: If, however, this paragraph is not applicable- 

(a) when an individual is let go, demoted, or demoted in rank due to actions that resulted in his conviction on a criminal charge; or

(b)When the President or Governor is satisfied that it is not in the best interest of the security of the State to hold such an inquiry, or when the authority empowered to dismiss, remove, or reduce a person in rank is satisfied that it is not reasonably practicable to hold such inquiry for some reason, to be recorded by that authority in writing.

(3) The authority with the right to fire, remove, or demote such a person will have the ultimate say on the matter if there is any doubt as to whether it is practically practicable to conduct the inquiry mentioned in subsection (2).

When is Article 311 applicable?

The fact that Article 311 is only applicable when “dismissal, removal, or reduction in rank is by way of punishment” stands out as the most important distinction. Therefore, it might be challenging to discern when an order of service termination or rank reduction constitutes punishment. 

Parshottam Lal Dhingra v. Union of India is the matter at hand. The highest court established two criteria to evaluate when termination is a form of discipline:

whether the employee was qualified for the position or rank; and whether negative effects have been fallen him.

A government employee will be entitled to protection under Article 311 if they are terminated or demoted and they had a right to keep the position or rank under the terms of their employment contract or any rule controlling the position. Government employees, whether permanent, temporary, officiating, or on probation, are subject to Articles 310 and 311.

Exceptions of Article 311(2)

When certain conditions are met, the method outlined in the substantive part of the clause need not be followed, according to the provision of Article 311 (2). The following lists these:

1. Conviction on a criminal charge. – One of the situations covered by clause (a) of the provision is when someone is let go, demoted, or otherwise treated less favorably because of behaviour that led to a conviction. This exception was created because a formal investigation is not required in cases where a court of law has already rendered a decision. The government employee will, however, be regarded as never having been convicted if a conviction is overturned or revoked by a higher court after an appeal. The government employee will then be handled as if his conviction had never happened and as if the firing order had never been issued. In this situation, the government employee will also be qualified to receive compensation for the time that passed while the dismissal order was in effect. The limitation period under clause 102 of the Limitation Act would only apply to the reinstatement date because the claim for such salary arrears would only become valid then.

2. Impracticability – Under clause (b) of the proviso, no opportunity to demonstrate cause need be offered if the appropriate disciplinary authority is persuaded, for reasons to be recorded by that authority in writing, that it does not believe it reasonably feasible to give the person a chance to do so. The disciplinary authority that has the authority to fire, demote, or remove the government employee from office must be satisfied under this clause. It has been stipulated that the competent authority must submit written justifications for why it would not be practical to continue using the approved processes to provide a chance for the defendant. This exemption may be used in situations when, for instance, a subject has fled the scene or if it is impossible to reach him for other reasons.

3. Security concerns—Under proviso (c) to Article 311(2), the President may terminate a person’s employment without following the regular process outlined in Article 311 where he or she is of the opinion that doing so would jeopardize national security (2). The subjective satisfaction of the President regarding the necessity of denying the concerned employee a chance in the sake of the State’s security is the satisfaction mentioned in the proviso.

Other protections for government employees

Section 311(1): It states that a government servant cannot be fired or removed by a body that is under the authority that appointed him.

Section 311(2): A civil servant cannot be fired, demoted, or removed from his position without first giving him a fair chance to explain why he should not be subjected to the proposed action.

In numerous cases, including Khem Chand v. Union of India and Union of India and another v. Tlusiram Patel, the Supreme Court provided an exhaustive interpretation of all the relevant factors, and these cases serve as authoritative guidelines for how administrative authorities should handle disciplinary cases.

The question of whether double jeopardy applies when a government employee is disciplined for the same offence under both the Army Act and the Central Civil Services (Classification and Control and Appeal) Rules of 1965. The Supreme Court of India provided the response in the matter of Union of India v. Sunil Kumar Sarkar concluded that the court martial procedure differs from that of central rules because the former deals with the disciplinary part of wrongdoing and the later deals with the personal aspect.

Conclusion

Recent events, such as the dismissal of Mumbai police encounter specialist Pradeep Sharma from his position due to allegations of corruption and links to the underworld, show that civil servants cannot mock the law; if they are found guilty, they will be held accountable regardless of their position. The primary purpose for which articles 310 and 311 were inserted in the constitution is still in effect today, but it is interesting to note that the framers foresaw corruption soon and incorporated these measures as a result.

References:

1. https://www.legalserviceindia.com/article/l253-Doctrine-of-pleasure-and-its-proviso-article-311-of-Indian-Constitution.html
2. https://www.thehindu.com/news/national/explained-what-is-the-doctrine-of-pleasure/article66070566.ece#:~:text=In%20India%2C%20Article%20310%20of,the%20pleasure%20of%20the%20Governor.

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