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Article 311 Acting As A Safeguard

Art 310 of The Indian Constitution speaks about how every member who is a civil servant under either the Union Government or the State Government serves at the pleasure of the President or the State Governor. There are certain exceptions to Art 310; the exceptions applies to Supreme Court judges, High Court judges, Chief election commission officers and lastly Chairman and members of public service commissions. [1]

This Article emanates from the Doctrine Of Pleasure that comes from England, as India was ruled by England for more than 150 years and we have the tendency to incorporate their laws into our system as well. The Doctrine Of Pleasure means that the head of the state or the head of the union has the full authority to terminate the services of any civil servant that works in any government structure under them. One concept that we have not taken from the English is that a civil servant in England could not sue the Crown regarding arrears on his or her salary.[2]

In the case of State Of Bihar Vs. Abdul Majid[3], The Supreme Court Of India held that a civil servant is allowed sue for the recovery of his arrears for his salary from the government. I feel that this was an extremely good move by the Supreme Court Of India; by doing this, the civil servants are still getting the right to fight for their salary, which was not paid to them.

An important case law regarding the Doctrine Of Pleasure was the case of Union Of India Vs Balbir Singh[4]; the Supreme Court Of India held that the court has the final say on whether the head of the union or the head of the state has actually made the right call to decline an inquiry regarding the termination of a civil servant. If the court at that point of time concerning the facts on hand feel that the head of the state or head of the union have declined the inquiry based on irrelevant grounds then they have the full power to overturn the decision.

Another great move by the Supreme Court Of India, this helps keep absolute power out of the hands of the head of the state or the union. In some cases, the head of the union or the state can use this power in a wrong manner for the wrong reasons. This ruling gives the courts the final say, which in my view is the right way to go about it. Another case that backed up this decision was the case of Jaswant Singh Vs. State Of Punjab[5].

The Supreme Court Of India in this case held that the action regarding the termination of any civil servant is not final and it can be tested in the court of law. The court also held that any action that seems to come across with mala fide intention could be interfered with by the court of law. When this doctrine was applied in England, the civil servant who was removed from his or her job did not even have to chance to fight their termination.

This whole doctrine stemmed from the fact the head of the union knew what was best for public policy and if they felt that keeping on a particular civil servant was against public policy then they would terminate their services. In my view, India has taken the relevant and important features of the Doctrine Of Pleasure and applied it to our legal system. The features, which would give the head of the government any kind of absolute power, have not been incorporated from the English version of the doctrine.

Art 311 And Case Laws
Now moving onto Art 311 of The Indian Constitution and the heart of this paper. This article speaks about the dismissal, removal or reduction in rank of any persons who are employed in civil jobs under either the Union or the State government. Art 311 (1) of The Indian Constitution speaks about how any civil servant either under the Union Government or the State Government cannot be dismissed from his or her post by any authority below the authority that had appointed him or her.

Moving onto the second part of Art 311, this part of the article talks about how no civil servant shall be dismissed or demoted without being informed of the charges that have been formed against him or her and also the accused should be given a reasonable opportunity to come up with a reply and give his or her side of the story. The meaning of civil servant has been given in the case of State Of U.P Vs. A.N Singh[6].

The Supreme Court Of India in that particular case held that a person holds a civil post if there a relationship of master and servant exists between the state or union government and the person who is holding that post. The state also has to have the right to dictate the method of work the civil servant is doing and should get to fix his or her salary. In the case of Khem Chand Vs. Union Of India[7].

The Supreme Court Of India clarified the meaning of reasonable opportunity to be heard. They put down three points to define reasonable opportunity, the first point spoke about the civil servant should be given an opportunity to deny his guilt and have the charges clearly explained to him or her. The second point speaks about how the civil servant in question should be allowed to cross-examine the witness who has filed the complaint.

The third and final point speaks about the proposed punishment and how the accused should be able to give an explanation to the authorities as to why he should not get such punishment. If it comes to a stage where the civil servant needs to be punished, then this can only be done after looking at all the available evidence. This article does not necessarily give the civil servant the chance to challenge the punishment that has been given to him or her. Incorporating one of the most crucial features of the Principles Of Natural Justice, the Supreme Court Of India has done a very good job in making sure that the hearing is of fair nature.

This gives the accused also a fair and equal chance to be heard by the court and helps the judiciary serve justice in whichever way they deem fit. There are three exceptions where the initial enquiry does not need to take place concerning the charges that have been formed against the civil servant in question. These exceptions are mentioned in Art 311 (2) (a, b, c) of The Indian Constitution.

The first exception is when the civil servant is dismissed because of some particular conduct that has led to a criminal conviction. The second exception being when the authority that has gone forward with the action of removing the civil servant from his or her post or demoting him or her from their original post, that authority themselves feel that it is not reasonable or practical to hold an inquiry. The third exception is that the governor of the state or the head of the union feels that it is in interest of the security of the state not to hold any such inquiry.

In the case of Union Of India Vs Tulsiram[8], which was decided in 1985, explained the whole scope of this whole exception. The Supreme Court Of India in this case held that to conclude whether holding the inquiry is practical or not, the reasonable man's test will be applied. If a reasonable man feels that the inquiry is not practical, then Art 311 will be not be violated. In the same case, the Supreme Court Of India also held that dismissal, removal or reduction in rank of a person convicted on criminal charges is beneficial to the society and thus is not a violation of Art 311 of The Indian Constitution. [9]

In my personal opinion, I feel that all the exceptions help to balance the power between the government and the civil servant. These exceptions help make sure that not all the cases are given an inquiry when it is quite clear that there is some wrong doing on his or her part. I also personally feel that the reasonable man's test is a good way to determine whether holding an inquiry is required or not. There is no need to waste time holding an inquiry if it is clear that there was some any kind of wrongdoing on the part of the civil servant.

Clarifications On Safeguards
As elaborated above, Art 311 of The Indian Constitution is a safeguard against the Doctrine Of Pleasure. Many cases in the past years have helped clarify the safeguards that can be used by civil servants across the country, one such case was Sukhbans Singh Vs. State Of Punjab[10]. The Supreme Court Of India held in that particular case that a suspension from service is neither dismissal nor removal nor reduction in rank, therefore that particular civil servant in that case will not be able to claim the right under Art 311 of The Indian Constitution.

Another very important holding by the Supreme Court, civil servants who have been suspended from their duties cannot claim their right under Art 311. Suspension from duty for only a civil servant only takes place when the civil servant has done something wrong or something which was not approved by the government thus I feel the Supreme Court rightly held that they will not be able to use the right under Art 311.

Another case that helped clarify the safeguards was the case of Shyam Lal Vs. State Of U.P[11]. In this case, The Supreme Court Of India held that the compulsory retirement of any civil servant differs from dismissal and removal as there are no penal consequences and no civil servant who is forced to retire loses any part of the benefit earned during his or her service.

Thus, any officer who has been forced to retire will not be allowed to use the safeguard that comes with Art 311 of The Indian Constitution. In my personal view, this is also an extremely smart decision by the Indian judiciary for the following reasons. When a civil servant is forced to retire, it is because the government feels because of reaching a certain age they will not be able to perform their job at the same level as they used to.

The civil servants are taken good care of even when retire by the means of a monthly pension (just one example). In addition, another reason I feel this was a good decision by the judiciary is because if they do not set a retirement age then the younger generation will only get to apply for these posts at a very late stage in their career. Younger generations should also get the chance to apply for jobs at a high level as the younger generations also come with a newer and innovative way of doing things.

Thus, I feel the Supreme Court did a good job by not allowing these particular civil servants to use Art 311 as a safeguard. Now moving onto the next safeguard. There is clear distinction between a mere reduction in salary and being demoted from a certain post.

In the case of State Of Punjab Vs. Kishan Das[12], The Supreme Court Of India held that a mere reduction in the salary in the same cadre is not reduction in rank. This decision also given by the Supreme Court shows unless and until there is an actual reduction of rank and not a decrease in salary, the civil servant cannot use Art 311 as a defense. Salary cuts can be various for reasons (decrease in budgets being the biggest one), this does not mean that the civil servant has been demoted from his original post. Thus, I feel that this decision also helps the courts avoid unnecessary litigation.

A conclusive test was created by the Supreme Court Of India in the Parashotham Lal Dhingra Vs. Union Of India[13] whether the termination of the civil servant is by way of punishment or not. The first part of the test was to figure out whether that particular civil servant had the right to hold the post or the rank and the second part of the test was to find out if that particular servant was put under any evil circumstances after his termination.

If the answer to the first question is no and the answer to the second one is yes then it deemed to be termination by the way of punishment. I feel some tests that have been developed by the judiciary are extremely crucial for our legal system. They make it extremely simple for the courts to give decisions based on simple tests and these tests are only approved after they have been tried in various scenarios so that it covers the entire ambit of things.

Conclusion
Concluding this paper, I personally feel that the Indian Constitution has done a good job of safeguarding the jobs of civil servants across the nation. Art 309 and Art 310 of The Indian Constitution have given the power to the union and the state government regarding the hiring, conduct during employment and termination of civil servants.[14]

This power just at bare reading of the above two mentioned sections might seem to give all the power to the government, but then as you move down to Art 311 of The Indian Constitution you can see that is not the case. Art 311 helps the civil servants of our country get justice and gives them a right to be heard when it comes to matters of being removed from a post or them being demoted from a certain post.

We have surely taken the Doctrine Of Pleasure from the English but the way we have implemented it is different which helps keep both the state and the civil servants at an equal footing. There are still a few steps left in this journey of protecting our civil servants from political and personal agendas of higher authorities but we are surely on the right track of defending them. Many senior people in political parties across the country try to use their influence to remove certain civil servants from their respective posts to serve their own personal agendas; this has to be stopped completely as this only adds to the corruption in our nation.

I hope in the future our government and judiciary together can work and help eliminate corruption from India. To answer my research question as to whether Art 311 of The Indian Constitution acts as a good enough safeguard for our civil servants, there is no simple answer. As mentioned above, I do feel there are a few more steps that can be taken to help them even further but overall I feel the government along with the judiciary is doing a good job currently in protecting their rights.

References:
  1. 309 Constitution Of India (Universal Publications) (1950)
  2. 310 Constitution Of India (Universal Publications) (1950)
  3. 311 Constitution Of India (Universal Publications) (1950)
  4. Jaswant Singh v State Of Punjab, AIR 1991 385
  5. Khem Chand v Union Of India, AIR 1958 SC 300
  6. Om Prakash Motiwal, Doctrine of Pleasure and the Services in Indian Constitution, 9 Indian Journal of Public Administration , 64-73 (1963), https://journals.sagepub.com/doi/abs/10.1177/0019556119630105?journalCode=ipaa#article (last visited May 1, 2020)
  7. Parashotham Lal Dhingra v Union Of India, AIR 1958 SC 36
  8. Shyam Lal v State Of U.P., AIR 1954 369
  9. State Of Punjab v Kishan Das, AIR 1971 SC 766
  10. State of U. P. v A. N. Singh, AIR 1956 SC 360
  11. State Of Bihar v Abdul Majid, AIR 1954 245
  12. Sukhbans v State Of Punjab, AIR 1962 1711
  13. Union Of India v Tulsiram, AIR 1985 1416
  14. Union Of India & Anr vs Balbir Singh & Anr on 5 May, 1998 Indiankanoon.org, https://indiankanoon.org/doc/1900118/ (last visited May 2, 2020)
End-Notes:
  1. 310 Constitution Of India (Universal Publications) (1950)
  2. Om Prakash Motiwal, Doctrine of Pleasure and the Services in Indian Constitution, 9 Indian Journal of Public Administration , 64-73 (1963), https://journals.sagepub.com/doi/abs/10.1177/0019556119630105?journalCode=ipaa#article (last visited May 1, 2020)
  3. State Of Bihar v Abdul Majid, AIR 1954 245
  4. Union Of India & Anr vs Balbir Singh & Anr on 5 May, 1998 Indiankanoon.org, https://indiankanoon.org/doc/1900118/ (last visited May 2, 2020)
  5. Jaswant Singh v State Of Punjab, AIR 1991 385
  6. State of U. P. v A. N. Singh, AIR 1956 SC 360
  7. Khem Chand v Union Of India, AIR 1958 SC 300
  8. Union Of India v Tulsiram, AIR 1985 1416
  9. 311 Constitution Of India (Universal Publications) (1950)
  10. Sukhbans v State Of Punjab, AIR 1962 1711
  11. Shyam Lal v State Of U.P., AIR 1954 369
  12. State Of Punjab v Kishan Das, AIR 1971 SC 766
  13. Parashotham Lal Dhingra v Union Of India, AIR 1958 SC 36
  14. 309 Constitution Of India (Universal Publications) (1950)

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