Servants Introduction • Bureaucracy is essential for executing governmental policies and laws • Discipline, integrity and efficiency are important hallmarks of civil service • Part XIV (Arts. 308 – 323) • Chapter I – Services (308 – 314) • Chapter II – PSC (315 – 323) • Ensures • The need to maintain discipline • The need to ensure that the disciplinary authorities exercise their powers properly and fairly Constitutional Provisions • Power to make laws/rules relating to recruitment and conditions of service – subject to the provisions of the Constitution (Art. 309) • Tenure of office – Doctrine of Pleasure (Art. 310) • Protection afforded to a member of civil service in disciplinary proceedings (Art. 311) • Exceptions (Art. 311 (2) Proviso) • All India Services (Art. 312) Doctrine of Pleasure • Article 310. 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. Introduction • There are two classes of penalties in service jurisprudence, namely, minor penalties and major penalties. Amongst minor penalties are censure, with holding of promotion and with holding of increments of pay. Amongst major penalties are dismissal or removal from service, compulsory retirement and reduction in rank. Minor penalties do not affect the tenure of a government servant but the penalty of dismissal or removal does because these two penalties bring to an end the service of a government servant. Doctrine of Pleasure • Common law doctrine • To promote public policy • Efficiency in administration • Where the performance is not satisfactory, power to remove Doctrine of Pleasure • Except as expressly provided by this Constitution • Supreme Court Judges (Art. 124) • Comptroller and Auditor-General of India (Art. 148) • High Court Judges (Art. 217 & 218) • Chairman and Members of PSC (Art. 317) • Chief Election Commissioner and other Election Commissioners (Art. 324) • State Election Commissioner (Art. 243K) Doctrine of Pleasure • The relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence, status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. Doctrine of Pleasure • From the nature of things the task of efficiently and effectively implementing these policies and enactments, however, rests with the civil services. The public is, therefore; vitally interested in the efficiency and integrity of such services. Government servants are after all paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes. Those who are paid by the public and are charged with public and administration for public good must, therefore, in their turn bring to the discharge of their duties a sense of responsibility. The efficiency of public administration does not depend only upon the top echelons of these services. It depends as much upon all the other members of such services, even on those in the most subordinate posts. Doctrine of Pleasure • For a service to run efficiently there must, therefore, be a collective sense of responsibility. But for a government servant to discharge his duties faithfully and conscientiously, he must have a feeling of security of tenure. Under our Constitution this is provided for by the Acts and rules made under Article 309 as also by the safeguards in respect of the punishments of dismissal, removal or reduction in rank provided in clauses (1) and (2) of Article 311. It is, however, as much in public interest and for public good that government servants who are inefficient, dishonest or corrupt or have become a security risk should not continue in service and that the protection afforded to them by the Acts and rules made under Article 309 and by Article 311 be not abused by them to the detriment of public interest and public good. Doctrine of Pleasure • The pleasure doctrine is not merely a special prerogative of the British Crown which has been inherited by India and transposed into our Constitution adapted to suit the Constitutional set up of our Republic but because public policy requires, public interest needs and public good demands that there should be such a doctrine. • It is thus clear that the pleasure doctrine embodied in Article 310 (1), the protection afforded to civil servants by clauses (1) and (2) of Article 311 and the withdrawal of the protection under clause (2) of Article 311 by the second proviso thereto are all provided in the Constitution on the ground of public policy and in the public interest and are for public good. • Union of India v. Tulsiram Patel (1985) Protections • Article 311. 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 Protections • Exceptions • (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; • (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; • (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. Second Proviso Art. 311 (2) • If a question arises whether it is reasonably practicable to hold such inquiry, the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final Art. 311 (3) Protections • It is not necessary that the inquiry must be conducted by the appointing or higher authority • State of M. P. v. Shardul Singh (1970) • Principles of natural justice extend even to matters of evidence – evidence by which charges are sought to be substantiated must be made available to him and an opportunity to explain • Khan Chand v. Union of India (1958) • All the witnesses to be examined in front of the delinquent and be given an opportunity to cross examine • Kuldeep Singh v. Commissioner of Police (1999) Protections • Whether there is a right to be represented by a lawyer? • The right of representation by lawyer may not in all cases be held to be a part of natural justice. No general principle valid in all cases can be enunciated… • The Rule itself recognises that where the charges are so serious as to entail a dismissal from service, the inquiry-authority may permit the services of a lawyer. This rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reason of the delinquent being pitted against a presenting officer who is trained in law. • J. K. Aggarwal v. Haryana Seeds Development Corporation (1990) Protections • Judicial interpretation has extended the protection to even matters relating to quantum of punishment. • 15th Constitutional Amendment 1963 recognised this right • 42nd Constitutional Amendment removed this protection • 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 Protections • Exceptions: • Conviction on a criminal charge • It is not reasonably practicable to hold such inquiry • Satisfaction of the authority • Reasons to be recorded in writing • In the interest of the security of the State it is not expedient to hold inquiry • Satisfaction of the President/Governor necessary • No requirement of recording reasons Protections • There is no scope for any ambiguity in these words and there is no reason to given them any meaning different from the plain and ordinary meaning which they bear. The resultant effect of these words is that when a situation envisaged in any of the three clauses of the proviso arises and that clause becomes applicable, the safeguard provided to a government servant by clause (2) is taken away. As pointed out earlier, this provision is as much in public interest and for public good and a matter of public policy as the pleasure doctrine and the safeguards with respect to security of tenure contained in clauses (1) and (2) of Article 311. • The condition for the application of each of these clauses is different. In the case of clause (a) a government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has led to him being convicted on a criminal charge. In the case of clause (b) the disciplinary authority must be satisfied that it is not reasonably practicable to hold an inquiry. In the case of clause (c) the President or the Governor of a State, as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. • The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all, because Article 311 (2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned government servant is such as justifies the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an inquiry. • 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. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to given evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through other threatens, intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. (b) • There are various ways in which security of the State can be affected. It can be affected by State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the State can be affected. The way in which security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the Armed Forces or para-military Forces. • The question under clause (c), however, is not whether the security of the State has been affected or not, for the expression used in clause (c) is "in the interest of the security of the State". The interest of the security of the State may be affected by actual acts or even the likelihood of such acts taking place. Further, what is required under clause (c) is not the satisfaction of the President or the Governor, as the case may be, that the interest of the security of the State is or will be affected but his satisfaction that in the interest of the security of the State, it is not expedient to hold an inquiry as contemplated by Article 311(2). The satisfaction of the President or Governor must, therefore be with respect to the expediency or inexpediency of holding an inquiry in the interest of the security of the State. • The satisfaction reached by the President or Governor under clause (c) is subjective satisfaction and, therefore, would not be a fit matter for judicial review. • Union of India v. Tulsiram Patel (1985)