ASSIGNMENT

1. Write a critical note on the Constitutional safeguards provided to the civil

servants in India.
2. Discuss the doctrine of pleasure.
3. Explain briefly whether the pleasure of the Government can be restricted by a
contract?
4. Discuss the restrictions on the doctrine of pleasure. Substantiate your answer
with the help of decided case laws.
5. Explain the exceptions to Article 311 with the help of case laws.

AnswerS:

Answer1)
The general principle relating to civil services has been laid down under Article 310
of the constitution to the effect that government servants holds office during the
pleasure of the government. But Article 311 which is characterized as “unique in
world constitutionalism” imposes two restrictions on the prerogative of dismissal at
pleasure in the form of safeguards. Such safeguards are:-
a) That persons employed in civil capacities under the union or state shall not be
dismissed or removed by any authority subordinate to that by which they were
appointed,
b) No such person shall be dismissed or removed or reduced in rank except after an
inquiry as provided in clause(2).
Thought these restrictions are limitations on the doctrine of pleasure the protection to
the civil servants was given for the first time by the Government of India Act, 1919,
and then the Government of India Act, 1935 and is currently provided through Article
311 of the Constitution. These provisions in the form of Constitutional safeguards
allow a civil servant to perform his duties without the fear of being removed from his
position unfairly.

Persons entitle to safeguards:

Constitutional safeguards provided under Artile 311 are not available to all the
government servants. They are available to the person who are member of a civil
service of a state or to persons who holds a civil post under the union or a state.
Such safeguards cannot be claimed by the member of defence forces or the persons
appointed to the post connected with defence. In this way the protection contained in
Article 311 is not given to the military personnel who are governed by the army act.
The appointment of such person without giving reasons. Even a civilian, holding a
part in a department connected with defence, such as Military Engineering Service or
Military Farm or an ordinance factory, or navel base cannot claim any right under this
article even if he is governed by the laws related to armed forces as he cannot be
said member of civil services of the union or a person holding a civil post under the
union.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 Parashottam Lal Dhingra Vs Union of India[1]. 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. Articles 310 and 311 apply to Government
servants,whether permanent, temporary, officiating or on probation.

Dismissal and Removal:

Dismissal and removal are synonymous terms, but in law they acquired technical
meanings by long usage in Service Rules. In case of dismissal a person is debarred
from future employment, but in case of removal he is not debarred from future
employment.

No Removal by Subordinate Authority

No 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.

Reasonable Opportunity of Being Heard

In Khem Chand v Union of India the Supreme Court held that the 'reasonable
opportunity' means:-
(a) An opportunity to deny his guilt and establish his innocence, which he can do
only if he is told what the charges leveled against him are and the allegations on
which such charges as based.
(b) An opportunity to defend himself by cross examining the witness produced
against him and by examining himself in support of his defiance.
(c) An opportunity to make his representation as to why the proposed punishment
should not be inflicted on him.

Suspension

Suspension of a government employee is not a punishment. It is neither dismissal or

removal nor reduction in rank. So the employee cannot claim a reasonable
opportunity to be heard. Exclusion of Opportunity to be Heard
Article 311(2) Provides that reasonable opportunity of being heard is not applicable
in the following cases. (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.

Answer 2)
Introduction:
The Civil Services were introduced in India during the British rule therefore, their
laws and regulations were also applied in India as per the needs of the country. After
the independence of India, the civil services were provided Constitutional Status.
The laws of England still have a great influence on Indian laws. The doctrine of
Pleasure is one of these concepts which has been introduced in India from the
British rule. Under this doctrine, the civil servants were regarded as servants of the
crown and these civil servants served at their pleasure.

Meaning:

As mentioned before, this doctrine originated in England. In England, the Crown is

regarded as the Executive head and the civil services are part of the Executive. The
doctrine of Pleasure means that the Crown has the power to terminate the services
of a civil servant at any time they want without giving any notice of termination to the
servant. Thus, the civil servants work at the pleasure of the Crown which can remove
them at any time. When the civil servants are removed from their service, they do not
have the right to sue the Crown for wrongful termination and they also cannot ask for
damages undergone due to wrongful termination. This doctrine is based on the
concept of public policy and whenever the Crown feels that a civil servant should be
removed from his office because keeping him will be against public policy, the Crown
can remove such servant.,

Position of doctrine of pleasure in India:

The doctrine of pleasure is also followed in India. Since the President of India is the
Executive Head of the Union and he enjoys the same position as the Crown enjoys
in England, the President has been vested with the power to remove a civil servant
at any time under this doctrine.

While this doctrine has been adopted in India it has not been blindly copied in the
same manner as it is followed in England and there are some modifications which
exist in India’s adoption of this doctrine from that of England. In India, Article 310 of
the Indian Constitution embodies the provision for this doctrine.

According to Article 310, except for the provisions provided by the Constitution, a
civil servant of the Union works at the pleasure of the President and a civil servant
under a State works at the pleasure of the Governor of that State. This implies that
the operation of the Doctrine of Pleasure can be limited by constitutional provisions.
Under the constitution, the following are excluded from the operation of this doctrine:

1. Judges of the Supreme Court;

2. Judges of the High Courts;
3. Chief Election Commissioner; and
4. Comptroller and Auditor General of India.

Thus, this doctrine is not absolute and is subject to Constitutional provisions. The
civil servants can also be excluded from the operation of this doctrine because they
have been provided with some protection under Article 311 and thus this doctrine’s
application can be limited to civil servants as well.

Answer3)

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. 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:
 1. The service contract entered between the civil servant and government may
be enforced .
2. 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.
3. 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
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.

Answer5)
The second proviso to Art 311 (2), in Clauses (a), (b) and (c): lays down three
situations with Art 311 (2) does not apply. These clauses are as follows: (a) Where a
civil servant is dismissed or removed or reduced in rank on the ground of conduct
which has led to his conviction on a criminal charge [Art. 311(2) (a)]. The Supreme
Court has emphasized that under Art. 311 (2) (a), the disciplinary authority is to
regard the conviction of the concern civil servant has 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 take into
consideration the judgment of the criminal court, the entire conduct of the civil
servant, the gravity of the offence, the impact of the offence on the administration,
whether the offence was of a technical or trivial nature, and the extenuating
circumstances, if any. This the disciplinarily authority has to do ex parte and without
giving a hearing to the concern civil servant Action under Art.311 (2) (a) is to be
taken only when the conduct which has led to his conviction is such that it deserves
any of the three major punishments mentioned in Art.311 (2). The power has to be
exercised “fairly, justly and reasonably”. No hearing need be given while imposing
the penalty after convection on a criminal charge, but “the right to impose a penalty
carries with it the duty to act justly”. For example, a government servant convicted for
parking his scooter in a no parking area cannot be dismissed from service.31
However if the court finds that the penalty imposed by the impugned order is
arbitrary, of grossly excessive, or out of all proportion to the offence committed, or
not warranted by the facts and circumstances of the case, or the requirements of that
particular government service, the court will strike down the order.
In Shankar Dass V. India Where the order imposing the penalty of dismissal was
set aside as the court found that in the fact-situation, the penalty of dismissal from
service was whimsical. The Supreme Court emphasized that the power under cl. (a)
of the second proviso to Art. 311 (2) must be exercised “fairly, justly and reasonably”
and that “right to impose a penalty carries with it the duty to act justly”.
Dy. Director of Collegiate education, Madras v. S. Nagoor Meera The Supreme
Court held that Art.311 (2) (a) speaks of “conduct which has led to his conviction on
a criminal charge”. It does not speak of sentence or punishment awarded. The court
has ruled that the appropriate course in such cases would be to take action as soon
as a government servant is convicted of a criminal charge and not to wait for the
appeal or revision against conviction. If however he is acquitted on appeal or other
proceeding, the order can always be revised. If the government servant is reinstated,
he will be entitled to all the benefits to which he would have been entitled to, had he
continued in service. (b) Where an authority empowered to dismiss or remove a civil
servant or reduce him in rank is satisfied that, for some reason to be recorded by it in
writing, it is not reasonably practicable to hold such inquiry [Art. 311 (2) (b)].
The important thing to note is that this clause applies only when the conduct of the
government servant is such as he deserves the punishment of dismissal, removal or
reduction in rank. Before denying a government servant his constitutional right to an
inquiry, the paramount consideration is whether the conduct of the government
servant is such as justifies the penalty of dismissal, removal or reduction in rank.
In Union of India V. Tulsiram Patel Explaining the scope of the clause, the
Supreme Court 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 clause (b). What is requisite is
that the Holding of the inquiry is not practicable in the opinion of a reasonable man
taking a reasonable view of the prevailing situation. The decision of the disciplinary
authority is final [Art. 311 (3)], provided it records the reasons in writing for denying
the inquiry to the concerned civil servant. But a disciplinary authority is not expected
to dispense with a disciplinary inquiry lightly or arbitrarily, or out of ulterior motives, or
merely in order to avoid the holding of an inquiry, or because the department’s case
against the government servant is weak and must fail. In such a case, the court can
strike down the order dispensing with the inquiry as also the order imposing penalty.
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 give to a civil servant such
an opportunity [Art. 311 (2) (c)]. While under clause (b) above, the satisfaction has to
be that of the disciplinary authority, under clause (c) it is that of the President or the
Governor, as the case may be. The satisfaction of the president or the Governor
must be with respect to the security to the expediency or in expediency of holding
and inquiry in the interest of the security of the state. Security of state, being
paramount all other interests are subordinated to it. The satisfaction mentioned here
is subjective and is not circumscribed by any objective standards. Whereas under Art
311 (2) (b) as stated above, the competent authority is required to record in writing
the reason for its satisfaction that it is not reasonably practicable to hold an inquiry,
there is no such requirement for recording the reason in Clause(c).