Doctrine of Pleasure As Under The Indian Constitution

The doctrine of Pleasure is a common law rule. This doctrine has its origin in England.
The Doctrine of Pleasure is a special prerogative of the British Crown.[1] In England, a
servant of the Crown holds office during the pleasure of the Crown and he can be
dismissed from the service of Crown at pleasure. The tenure of office of a civil servant
can be terminated at any time without assigning any cause. Even if there exists any
special contract between the Crown and the civil servant concerned, the Crown is not
bound by it. The civil servant is liable to be dismissed without notice and they cannot
claim damages for wrongful dismissal or immature termination of service.[2]The Crown
is not bound by the any special contract between it and a civil servant, for theory is that
the Crown could not fetter its future executive action by entering into a contract in
matters concerning the welfare of the country. The justification for the rule is that the
crown should not be bound to continue in public service any person whose conduct is
not satisfactory.[3]This common law Doctrine hence in England is based on Public
Policy. The public policy is that a public servant whose continuance in office is not or is
against the public interest must be relieved of it.[4]

Doctrine Of Pleasure In India:

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. This Doctrine of Pleasure is embodied in India in Article 310(1).It
reads as follows:
Tenure of office of persons serving the Union or a State :[5]

(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.

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.
The following are expressly excluded by the Constitution from the rule of Pleasure.
They are:
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.

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."[6]

Therefore, services of any civil servants cannot be terminated at pleasure unless the
mandatory provisions of Article 311 have been observed. This 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. The 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. 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.[7]

Restrictions 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. 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.
(iii) 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.[8]
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 text of the Article refers to members of civil services of the
Union or all- India service of a State or hold a civil post under the Union or a State.[9]
The constitution bench of the Supreme Court in S.L. Agarwal (Dr.) v. General
Manager[10], Hindustan Steel Limited, 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.

Difficulties have always arisen in relation to the meaning and scope of ‘Civil Post’.
Though this expression has been interpreted in many ways there is no debate
that Article 311(1) deals with persons employed in the civil side of administration in
contradistinction to defence. Supreme Court in State of Assam v. Kanak Chandra Dutta
laid down that civil post in Clause (1) means a post not connected with the defence
services and outside the regular civil services.[11]

Further, in Parshottam Lal Dhingra v. Union of India[12], 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.[13]

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.

The enquiry contemplated by Article 311(2) is generally known as departmental enquiry

and the Constitutional requirements for a proper enquiry within the meaning
of Article 311(2) are two-fold:
(a) The civil servant must be informed of the charges against him; and
The civil servant against whom a accusation of misconduct is made must be ‘Formally’
informed i.e to say those acts or omissions of the public servant which are termed as
Misconduct under the Service Rules usually referred to as Conduct rules. But, acts or
conduct not covered by such may still amount to misconduct. It is fundamental and
essence of the concepts of fair play and justice that a person should know why he is
being charged.[14]

(b) He must be afforded a reasonable opportunity of being heard in respect of those

charges.[15]
Neither the General clauses Act nor the Constitution defines “reasonable opportunity”.
Reasonable opportunity here too refers to the rules according to Principles of Natural
Justice. Broadly, it implies an opportunity to deny the guilt alleged in order to establish
innocence, to defend by examining himself and his witnesses.[16]

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) Where a person is dismissed or removed or reduced in rank on the ground of
conduct which has led to his connection on 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.[17]

These provisions have been explained below in detail:

(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. This
the Disciplinary authority has to do ex-parte and without giving a hearing to the
concerned civil servant.[18]

The power has to be exercised by the authority “fairly, justly and reasonably”. Hearing
need not be given while imposing the penalty after conviction on a criminal charge, but
the right to impose a penalty the duty to act justly.[19]For instance, a government
servant convicted for parking in the no-parking area cannot be dismissed.

(b) Impracticability:
It is important to know that this clause applies only when the conduct of government
servant is such as he deserves the punishmen 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 Tulsi ram Patel case[20]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.[21]

(c) Reasons of Security:

Under (c) the satisfaction has to be that of the President or the Governor as the case
may be. The satisfaction must be with respect to the expediency or inexpediency of
holding an inquiry in the interest of the security of the State. Security of State being of
paramount importance all other interests are subordinate to it, “Security of State may
comprise a situation of disobedience and insubordination on the part of members of the
police force”. In Tulsi ram Patel case[22] 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)”.

The government is under obligation to disclose to the court the nature of the activities of
the employee on the basis of which the satisfaction of the President or the Governor
was arrived at for the purpose of passing an order under Article 311(2)(c). In the
absence of any indication about the activities, it would not be possible for the Court to
determine whether the satisfaction was arrived at on the basis of relevant
considerations. The government is under obligation to place relevant material on the
basis of which the satisfaction was arrived at subject to a claim of privilege under
Sections 123 and 124 of the Evidence Act, 1872.

Judicial Perspective on Doctrine of Pleasure In India

The Judicial perspective on Doctrine of Pleasure can be discussed in the following
cases:
As we all know that rule emanating from the pleasure doctrine is that no servant of the
Crown can maintain an action against the Crown for any arrears of salary. The
assumption underlying this rule is that the only claim of the civil servant is on the bounty
of the Crown and not for a contractual debt.

The Supreme Court of India in State of Bihar v. Abdul Majid[23] refused to follow this
rule of the Doctrine of pleasure. In this case sub-inspector of police was dismissed from
service on the ground of cowardice, was later reinstated in service. But the government
contested his claim for arrears of salary for the period of his dismissal. The Supreme
Court in this case upheld his claim arrears of salary on the ground of contract or
quantum muruit i.e for the value of the service rendered.

Similarly the Supreme Court the reiterated the above ruling in Om Prakash v. State of
Uttar Pradesh[24] where it was held that when dismissal of a civil servant was found to
be unlawful, he was entitled to get his salary from the date of dismissal to the date
when his dismissal was declared unlawful.

Further in State of Maharashtra v. Joshi[25], it was held that a claim of arrears of salary
was held to be based on contract.

Further the judiciary has also acted as checks and balances on the arbitrary exercise of
the power of conferred by the doctrine on the president and the Governor. The
Supreme Court in Jaswant Singh v. State of Punjab[26] held that in spite of finality
of Article311(3) the “finality can certainly be tested in the court of law and interfered with
if the action is found to be arbitrary or malafide or motivated by extraneous
considerations or merely a ruse to dispense with the inquiry.

In Union of India v. Balbir Singh[27], the Supreme Court held that the Court can
examine the circumstances on which the satisfaction of the president or Governor. If the
Court finds that the circumstances have no bearing whatsoever on the security of State,
the Court can hold that satisfaction of the president or the Governor which is required for
passing such an order has been vitiated by wholly extraneous or irrelevant
considerations.

Conclusion:
Thus 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 in order not to grant
immunity from summary dismissal to dishonest or corrupt government servants so that
they continue in service for months together “at the public expense and to Public
detriment”. Also at the same time the judiciary with its limited judicial review and
departmental appeal has ensured that the power to dismiss has not been misused by
the authority.

With the lot many cases coming into light in relation to corruption among the government
officials and the linking of various government officials with anti-social elements
the Article 310 and 311 of the Indian Constitution envisaged in the Part XIV act as a
check and does not allow the government officials to make mockery of Law.
*********************

6.3 The implications of the provisions of Article 311 have been the subject of a close
examination by several High Courts and by the Supreme Court. In particular in the cases
of (i) Purushotham Lal Dhingra vs Union of India, AIR 1958 SC 36;
(ii) Khem Chand vs. Union of India, AIR 1958 SC 300 and (iii) Union of India and another
vs. Tlusiram Patel, 1985(2) SLR SC 576, the Supreme Court gave an exhaustive
interpretation of the various aspects involved and they provide the administrative
authorities authoritative guidelines in dealing with disciplinary cases.

6.4 Articles 310 and 311 apply to Government servants, whether permanent, temporary,
officiating or on probation. (Purushotham Lal Dhingra vs. Union of India, AIR 1958 SC
36)

Constitutional Protection to Civil Servants – Article 311

Civil servants in India enjoy unique protection in terms of specific provisions in Part XIV
of the Constitution, which authorize the regulation of their conditions of service. Article
309 stipulates that subject to the provisions of the Constitution, acts of 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 a State.

Under Article 310, - persons serving the Union or a State hold office during the pleasure
of the President or the Governor of the State as the case may be. The exercise of this
pleasure is, however, circumscribed by the provisions of Article 311. The Article reads as
follows :

“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 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.”

The procedure laid down in Article 311, subject to the provisos, or exceptions, therein, is
intended to, first, assure a measure of security of tenure to government servants, who
are covered by the Article and, second, 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 and where there is an infringement of Article
311 orders passed by the disciplinary authority are ab-initio void. The provisions of
Articles 310 and 311, apply to all government servants. Arguments in favour of retaining
Article 311

Article 311 of the Constitution has been a matter of much debate over the past fifty
years. Arguments range from its retention in its present form, or even strengthening it, to
its total deletion. Those in favour of retaining Article 311 argue that the Article subjects
the doctrine of pleasure contained in the preceding Article 310 to certain safeguards.
Indeed, this Article earlier also envisaged giving an opportunity to the accused official to
protest the quantum of punishment proposed if the charges were proved - this
requirement was, however, dispensed with through the 42nd amendment to the
Constitution.

It is further argued that the safeguards under Article 311 are focused and that the
framers of the Constitution were mindful of the rare eventualities in which even such
minimal safeguards would not be necessary. Indeed, the safeguard of an opportunity of
being heard has been held to be a fundamental principle of natural justice. Even if Article
311 were to be repealed, it is argued, the need for giving an opportunity to be heard
cannot be dispensed with. The requirement that only an authority which is the appointing
authority or any other authority superior to it can impose a punishment of dismissal or
removal also appears reasonable as the government follows a hierarchical structure
where the appointing authority for different categories of employees are assigned to
different levels- the obvious principle being that for positions having higher responsibility,
the appointing authority is higher up in the hierarchy.

Moreover, if Article 310 stands without the procedural safeguards of Article 311, it is
highly unlikely that the rules governing disciplinary proceedings and departmental
inquiries can be dispensed with on the ground that the President or the Governor have a
right to dismiss an official from service without proving charges after due inquiry. In such
a situation the only outcome would be an increase in litigation concerning service
matters.
Besides, judicial review is an integral part of our Constitution and a substantial portion of
the appellate work of the Supreme Court concerns Article 311. A random check of the
decided cases from the Index notes of the Supreme Court cases yields various rulings,
which indicate that the Article is not an obstacle in dealing with delinquent public
servants: (i) The disciplinary authority is free to take a view contrary to the finding of ‘not
guilty’ by the inquiry officer. (High Court v Shrikant Patil 2000 1SCC 416). (ii) Where the
charges are proved in a departmental inquiry while the person is acquitted of the same
charges in criminal prosecution, acquittal will have no effect on disciplinary action as the
degree of proof required in the two proceedings is quite different. (Senior Superintendent
v A. Gopalan AIR 1999 SC 1514). (iii) Where the appointing authority is the President or
the Governor, it is not necessary for these office-holders to be personally satisfied about
the justification for disciplinary penalty. (Union v Sripati Ranjan 1975 4 SC 699).

Arguments in favour of repealing Article 311 3.10.8 But the argument above is itself the
starting point of the argument in favour of repealing Article 311. It can be argued that if
the decisions of the judiciary did not obviate the need to act against delinquent officials,
then why retain the Article with its potential to protect the corrupt through any unintended
interpretation? Indeed, it is not as if in all cases involving Article 311 the Supreme Court
has taken a ‘pro Government’ stance. There are cases where the apex court has struck
down the actions of the disciplinary authority or the Government. Some instances can be
cited illustratively; (i) Where a temporary servant was accused of accepting bribe, it was
held that the matter should have been dealt with in accordance with Article 311 and if
proved guilty the penalty of dismissal, instead of termination of service should have been
imposed. (Madan Gopal v Punjab AIR 1963 SC 531).

(iii) Where an inquiry was held at a place away from the place of posting and the
accused employee could not attend the proceedings due to lack of funds as he was not
paid any subsistence allowance (during the period of suspension), it was held that the
inquiry was vitiated. (Fakirbhai v Presiding Officer 1986 3 SCC 111).

There are a number of decisions of the lower courts which have tied down the
disciplinary authorities with technical detail where the procedure has become more
important than the substance.

In present times, the position prevailing in India has to be viewed against the practice
followed in other countries, where such punitive action is possible with a hearing
permitted at the discretion of the appropriate authority, not as a matter of right. Even in
the UK, whose administrative systems were adopted in India, such freedom does not
exist. India is perhaps one of very few countries where a public servant, who, though an
agent of the government, has the power to invoke Constitutional rights against the
government which is his/her employer.
The Constitution has been amended to recognize the needs of governance as felt from
time to time. The Indian Constitution, and Part XIV thereof, was drafted at a time when,
in the aftermath of partition, and post-colonial administrative upheavals, it was felt
necessary to prescribe certain guarantees to the bureaucracy. In the present scenario,
that protection does not appear quite necessary. For one, the recent growth of the
economy has ensured that Government is no longer the only significant source of
employment.

Indeed, in the present debate of even providing outcome oriented contractual

appointments for senior positions, there is a new focus on the question of permanency in
the civil services. Inflexibility and compartmentalization, created over decades within the
bureaucratic structure, has been encouraged by the difficulty in even transferring staff
who have rushed to courts against their transfer; this was presumably not the intention
of the framers of the Constitution. The increase in corruption and inefficiency in
Government has been acknowledged as requiring major “surgery”. The role of
Government as a model employer cannot take away from the fact that public good must
override individual right, certainly of the corrupt and inefficient public servant.

It is no doubt essential that reasonable opportunity is provided to a government official

against what might be arbitrary or vindictive action. But this should be only reasonable,
not excessive, and that must be the criteria for assessing the nature of legal protection
that the employee must receive. The protection required to be provided in terms of
security of tenure or permanancy in the civil service must not lead to a situation where
delayed action becomes common reason for emboldening errant officials into committing
acts against public interest.

It has been held that, for proper compliance with the requirement of ‘reasonable
opportunity’ as envisaged in Article 311(2), a government servant against whom action is
contemplated should, in the first instance, be given an opportunity to deny the charges.
If, as a result of an inquiry, the charges are proved and it is proposed to impose any of
the penalties of dismissal, removal, or reduction in rank, such penalty may be imposed
on the basis of the findings of the inquiry. It is not necessary to give him any opportunity
of making a representation on the penalty proposed after the amendment of clause (2)
of Article 311 of the Constitution with effect from 3rd January, 1977.

The Santhanam Committee had listed as many as 15 criteria laid down by the Supreme
Court and the High Courts in order to enable conduct of an inquiry in accordance with
the spirit of the Constitution. The interpretations and requirements laid down by the
highest courts have made disciplinary proceedings for major penalties very convoluted,
tedious and time consuming involving a large number of sequential steps before a
person can be found guilty of the charges and punished. The process unfortunately does
not end there. Provisions exist for appeal, revision and review only after completion of
which, the delinquent officer would begin to suffer the penalty. The accused officer also
has the right to challenge the legality of the action of disciplinary authority before the
Administrative Tribunal, get an interim stay of the proceedings and relief thereafter, and
to substantively appeal against the decision of the disciplinary authority or the
government as the case may be in the Tribunal. This apart, he reserves his fundamental
right to invoke the writ jurisdiction of the High Court and the Supreme Court protesting
the violation of such rights in the conduct of the inquiry.

Understandably, this has given rise to the demand for curtailing rights of the public
servant in relation to his employment. The only amendment of any substantial nature
that has been affected is to dispense with the requirement of a second opportunity to
show cause. The Santhanam committee had observed: “….In view of the constitutional
requirements and the judicial pronouncements, we consider that it would not be possible
to radically simplify the procedure unless the Constitution is suitably amended. However,
we examined the possibility of simplifying the procedure in relation to disciplinary
proceedings to the extent possible within the existing legal framework”.

The Hota Committee, while recommending measures to make civil services responsive,
citizen, friendly and ethical, has stated as follows:

“We recommend that Article 311 of the Constitution be amended to provide that if there
are allegations against a civil servant / person holding a civil post of accepting illegal
gratification or of having assets disproportionate to his known sources of income and the
President or the Governor is satisfied that the civil servant / person holding a civil post
be removed from service forthwith in the public interest, the President or the Governor
may pass an order removing the civil servant / person holding the civil post from service
and give him an opportunity in a post decisional hearing to defend himself. If the person
removed from service is prosecuted in a court of law, the President or the Governor may
also specify by order that a post-decisional hearing may be given to the person removed
from service only after a judgement of the court of law acquitting him becomes final and
conclusive. The person so removed shall be given a post-decisional hearing in a regular
departmental inquiry to defend himself against the charge. If he is exonerated of the
charge, he shall be reinstated in service with full restoration of his service conditions,
including his seniority, and shall be paid the arrears of pay and allowances due to him in
full. In our view, such a Constitutional amendment would : • Facilitate summary removal
from service of a corrupt officer; • Inspire confidence in the minds of the common people
that corrupt practice by members of the civil service / persons holding civil posts will not
be tolerated; • Ensure justice to the official so removed in a post-decisional hearing.”

The National Commission to Review the Working of the Constitution had

recommended :

“Yet the services have remained largely immune from imposition of penalties due to the
complicated procedures that have grown out of the constitutional guarantee against
arbitrary and vindictive action (Article 311). The constitutional safeguards have in
practice acted to shield the guilty against swift and certain punishment for abuse of
public office for private gain. A major corollary has been erosion of accountability. It has
accordingly become necessary to revisit the issue of constitutional safeguards under
Article 311 to ensure that the honest and efficient officials are given the requisite
protection but the dishonest are not allowed to prosper in office. A comprehensive
examination of the entire corpus of jurisprudence has to be undertaken to rationalize
and simplify the procedure of administrative and legal action and to bring the theory and
practice of security and tenure in line with the experience of the last more than 50
years”.

The view favouring the deletion of Article 311 argues ultimately that, over time, the
provisions of Article 311 have given rise to a mass of judicial pronouncements which
have led to much confusion and uncertainty in interpretation. These pronouncements
should not continue to have significance and effect on the strength of the continued
existence of Article 311. If this Article is deleted, judicial pronouncements based on the
Article would no longer be in force and binding. This could be made clear in the
statement of objects and reasons of any proposed amendment to the Constitution so
that these rulings are not relied upon to claim a protection which was not intended.