Safeguards To Civil Servants

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INTRODUCTION

The Civil Services holds the most prominent place in the progress of the country.
A Country's efficiency, democratic value and development widely is adjudged
and determined by the Administrative Team and Civil Machinery of that Nation.

However Today the Executive Machinery is Totally adulterated with the evils of Politics and
ultimately is hampering the growth and development of the Nation at large the transfers
and postings of administrative officers has a very wide influence of the political agenda of
the ruling party on it, ignoring the capabilities and eligibilities of a Person In-efficient and In-
eligible Persons are appointed on major and important posts, and the good cultured
officials are kept in loop lines of the administrative tunnels by the so-called Political Heads of
the Nation

The Constitutional Provisions safeguarding the Administrative Officials and Civil Servants
from such harshness and un-reasonableness of the Political Heads can be learned and
understood under Article 309,310,311 of the Indian Constitution for the Appointment,
Dismissal, and Removal of a Civil Servant from its post. It can widely be termed as a Legal
Immunity being provided to the Civil Servant for safeguarding his position against the mis-
use of law and procedure against him.

Recruitment And Regulations In The Conditions Of Service Of Civil


Servants:
Under Article 309 of the Indian Constitution, it empowers the Parliament of India and
respective State Legislatures to regulate and provide rules and laws for the appointment
and regulation of the Civil Servants in the Country for both the persons appointed under the
Union and State Governments, respectively.

The provision also expressly states that until the provisions or law regarding the aforesaid is
not made by the Parliament or any or all State Legislature than under such circumstances
the President or the Governor of the State holds the Authority to make laws which may be
temporary for regulating and operating such appointments saving the country from mal-
administrative and failure.

Recruitment includes any method provided for inducting a person in public service like
appointment, selection, deputation, promotion and appointment by transfer.

The conditions of service of a public servant includes pay, allowances, periodical increments,
leave, promotion, tenure or termination of service, transfer, deputation, various types of
rights, disciplinary action, holidays, hours of work and retirement benefits like pension,
provident fund, gratuity and so on.

Under this provision, the Parliament or the state legislature can impose 'reasonable'
restrictions on the Fundamental Rights of public servants in the interests of integrity,
honesty, efficiency, discipline, impartiality, secrecy, neutrality, anonymity, devotion to duty
and so on. Such restrictions are mentioned in the conduct rules like Central Services
(Conduct) Rules, Railway Services (Conduct) Rules and so on.

Constitutional Validity of the Right to Strike of the Civil Servant


the Hon'ble Supreme Court of India in the most popular case of T.R. Rangarajan v. Govt.
Of India[1] the Two Judges Bench of Hon'ble Supreme Court of India held that a
Government Servant under any circumstances has No Right to Strike, neither morally or
Legally, however if they felt aggrieved by any action of the Government or Legislative Organ
than they must approached the appropriate Tribunal or Court for seeking remedy regarding
the same.

Doctrine Of Pleasure
The Doctrine of Pleasure plays a very major role in the consistency and on the
administrative life of a civil servant. 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
In India Article 310 of the Indian Constitution describes widely the pleasure exercised by the
President of India, on appointment and dis-missal of the Civil servant

The article widely states that the Persons who are:

1. Members of Defence Services of India


2. Members of Union Public Service Commission of India
3. Members of State Public Service Commission of India
4. All India Services of India

Holds their offices during the Pleasure of the President of India, and in the State concerned
on the whims and pleasure of the Governor of the State. However, it must actively be noted
and minded that this pleasure constituted and mentioned in the Constitution is not an
Absolute Pleasure as was in England, but is graced with certain restrictions on it's execution.

Like it was held in State of Bihar v. Abdul Majid[2] that a Civil Servant could always sue the
State for his entitled salary, and which is even his legal and fundamental right from which he
can't be deprived off

The Article 310 expressly says and uses the words Except and Provided by the
Constitution states that the Civil Servant could be removed or action against him could be
ensured but it must be accordance with Constitution and Statutes being enacted in this
reference. Further Article 311 of the Constitution itself places a restriction on the arbitrary
removal of the State or Authorities concerned and places a pre-condition of the necessary
procedure to be implemented before the same, which makes it quite clear that even the Civil
Servant are been given an immunity against the Arbitrary and Un-reasonable Actions of the
State Authorities or any other Authorities concerned as the case may be.

However, it must be noted that the Government can grant or give compulsory retirement to
the Civil Servant not as a punishment but as a Constitutionally enabling provisions subject to
the integrity and public policy. the Civil Servant is having an indispensable right to voluntary
retire from his post, giving a Three Months Notice to the Government.

Exceptions of Doctrine of Pleasure


As referred above that in India, the Pleasure of the President, Governor or Government of
India or the State as the case may be does not have right to exercise an absolute pleasure,
and the Pleasure exercised by them have certain restriction being imposed on them by our
Constitution of India, they are:

1. The foremost restriction on removal or dis-missal of any civil servant is laid down
under Article 311 which states that all the field covered and listed under it are
excluded from the exercise of Doctrine of Pleasure. Even it provides an concrete
immunity to the civil servants, as they can sue the State or the Union against an
arbitrary removal or dismissal and for the entitled salary of the Civil Servant.

It expressly places the restrictions on arbitrary actions of the Government and laid
downs the proper procedure for conducting inquiries and investigation before
removing any civil servant from his post, or dismissing him or reducing his rank.

2. The Posts in accordance with Article 311 which are excluded from the exercise of
Doctrine of Pleasure by the President of India or Governors of the States are as
follows:

o Judges of Supreme Court of India- Article 124


o Judges of High Courts of the States- Article 218
o Auditor- General of India- Article 148 (2)
o The Chief Election Commissioner of India- Article 324
o Chairman or Members of Public Service Commission- Article 317

3. The Indian Constitution guarantees the citizens of India certain


fundamental rights. Article 14, Article 15, and Article 16 of
the Constitution of India impose certain restrictions on the free and
unfair use of the doctrine of pleasure. This doctrine of pleasure
cannot be used without sufficient cause. Article 14 states that the use
of any principles or doctrines must be done on reasonable grounds. It
prohibits the exercise of a doctrine arbitrarily. Like Article 14, Article
15 also prevents the arbitrary exercise of this doctrine of pleasure.
This Article has imposed certain restrictions before their termination
from services on the grounds of religion, race, caste, sex, or place of
birth. The Constitution also states that all citizens must be treated
equally without any unreasonable discrimination under Article 16.

Constitutional Remedies And Protection Ensured To Civil Servants In India:


Article 311 is applied only on the Civil Servants in India, and is not available as a remedy to
any other person or employee than a civil servant, even if he is associated with the
Government of Union, State or any Corporation.

In the famous case of V.K. Nambudri v. Union of India[3] it has been laid down by Hon'ble
High Court of Kerala that the defences and safeguards ensured to the Civil Servants in India
are not available to the Defence Personnel or any associated civil employee from them, as
article 311 is strictly applied and available only for the Civil Servants.

As the Defence Personnel are governed by the Army Act, 1951 an Ors. therefore they are
not covered and safeguarded by this provision and can be dismissed without assigning any
reason looking to the National Security and National Interest, the Courts cannot interfere
with their domain

The Landmark Case which defined and adjudged the meaning of Civil Post and the
persons covered under it's ambit was State of U.P. v A.N. Singh[4] in which Hon'ble
Supreme Court of India held the three tests which determines that weather a person is a
civil servant or not, they were:

Existence of Master:
State must be the Selecting and Appointing Authority:
Payment must be released from the State Treasury:
Likewise, if a person qualifies these tests, than he must be regarded as the civil servant and
is having all the Constitutional Protections are widely been available to him under the
provisions of the Indian Constitution.

The following are the protections available to a civil servant under Article
311 of the Constitution:
1. No dismissal by subordinate authority
Under Clause 1 of Article 311, a civil servant can only be removed from his
services by the authority who had appointed him or some other person who
has the same authority or rank as the appointing authority. So, any person
who is subordinate in authority to the appointing authority, cannot remove a
civil servant and in case he does remove him, the removal will not be valid.

2. The reasonable opportunity of being heard


Even the Principles of Natural Justice, Indian Evidence Act, 1872 and various Provisions of
Code of Criminal Procedure, 1973 ensures that an accused or the alleged must get an
reasonable opportunity of being heard and to clarify that why a particular punishment must
not be inflicted on a particular civil servant who is charged for a crime or irregularity.

Article 311 (2) of the Indian Constitution expressly states that a civil servant cannot be dis-
missed or reduced in rank until an unbiased and fair enquiry has been conducted and
investigation is properly executed in this reference and a reasonable opportunity had been
given to such a person to defend him in front of the Disciplinary Authority or the Competent
Court of Law.

What is meant by a Reasonable Opportunity?

In the most Landmark Case of Khem Chand v. Union of India[5] Hon'ble Supreme Court of
India answered this Question, in which a Government Servant was des-missed from his
service on the basis of the Report of the Enquiry Officer, in which serious charges were
framed against him.
The Defendant challenged the validity of the dis-missal on the ground that the Copy of the
Enquiry Oficer's Report is not have been given to the Defendant, and therefore he was not
aware about the charges framed against him and the findings of the Enquiry Officer in his
Report, which is violation of the Provisions of Article 311. It was held that it was obligatory
on the Competent Authority who passed the Order of Dis-missal to provide a copy of the
Report to the Defendant and must give him a reasonable opportunity to prove his
innocence and reason that why he must not be punished.
Therefore, even after the recommendation and findings of the Enquiry Officer the dis-missal
of the Government Servant was held as in-validated.

Similar contention was adopted in the Case of Managing Director, ECIL v. B.


Karunakar[6]in which Five Judges Bench of Hon'ble Supreme Court of India held that until
the Enquiry Officer is not the Disciplinary Authority it is obligatory on their part, to provide
the Copy of the Report to the alleged civil servant, even if it is contrary to the provisions of
any law, as non-compliance of the aforesaid is violation of the Principles of Natural Justice,
and the Act or Law denying the aforesaid is unconstitutional to that extent.

In the case of Union of India v. Balbir Singh (2017), the Supreme Court
stated that when a public servant is dismissed from his office, the reasons or
grounds for his removal will be inspected by the court. After examining the
reasons, if the court is well satisfied with them their termination will not be
reversed. But if the ground seems to be irrelevant for which he was
dismissed as it does not affect the security of the State, then the ground for
the public servant’s termination will be considered invalid.

Termination or Reduction in Rank must lead to Punishment:

It is clear from the above provisions of Article 311, that this remedy is available only when
the Civil Servant is reduced in rank or dis-missed or has been terminated by the way of
punishment, if it is in Formal Course of Administrative Procedure or otherwise in Public
Interest or due to In-efficiency or Mis-conduct on the part of the Civil Servant than under
such circumstances this remedy cannot be availed by such civil servants.

Like in the most famous case of Parshottam Lal Dhingra v. Union of India[7] the Appellant
was appointed to officiate a Higher Post. After some time he was reverted back to his
previous place due to in-efficiency and dis-satisfaction in his workings, but it neither in any
way had affected his salary, previous rank or future chances of promotion.

Hon'ble Supreme Court of India ruled that in order to avail the remedy as constituted under
Article 311, the termination or reduction of rank must result into punishment i.e. when the
person is entitled to hold a particular post and is removed erroneously and arbitrarily or had
not been given any reasonable opportunity of being heard, here in the instant case:

1. Firstly, the Appellant was merely officiating the Post, therefore he was not having
legal or constitutional right as such to hold the post, and from the situation itself it is
impliedly agreeable and reasonably force-able that the post was terminable after
giving a reasonable notice by the Government, and

2. Secondly and Most significantly the civil servant was neither reduced in rank as he
was just officiating the post and neither he was terminated, dis-missed or removed
from his post as a punishment so therefore the aforesaid remedy was not available
to him under the Provisions of Article 311.

Similarly it has been held in various Judicial Pronouncements by Hon'ble Supreme Court of
India, that Suspension does not amount to punishment
Compulsory Retirement must lead to Punishment: The power to compulsorily
retire a government servant is vested in the Government by virtue of the Doctrine of
Pleasure widely incorporated by the provisions of Article 310 of the Indian Constitution.
the main purpose of granting such compulsory retirement is to weed out the old dead wood
and to provide opportunity to new and fresh blood in order to maintain the efficiency and
initiative skills in the administration of law and order and justice at large.
The major guidelines regarding the Compulsory Retirement of a Civil Servant has been laid
down in the most famous case of State of Gujarat v. Umedbhai M. Patel [8]. by Hon'ble
Supreme Court of India are as follows:

1. If the Public servant is no longer useful as an efficient personnel to the


administration, than such officers may be compulsorily retired from their services.

2. If it is necessary in the public interest or any other genuine reason to retire such
officer from his services, than such decision might be taken.

Exceptions Of Article 311 Of The Indian Constitution:


The Article 311(2) provides immunity and protection to the civil servants from extraneous
and excessive punishment, but on the same hand they are having some exceptions being
attached to it, under which the provisions and remedies as stated in the Article 311 are not
available to the concerned Civil Servant, neither he can avail it, They are:

Conviction on a Criminal Charge:

If a Civil Servant is dis-missed or reduced in rank or is terminated on the ground of


his conviction held under any Criminal Charge, than under such circumstances he
cannot avail the remedy of reasonable opportunity as stated in the provisions of
Article 311.

As the readers might be knowing that there is Doctrine that for availing a remedy or
seek redressal under Court of Law He must come with clean hands. Therefore, if the
particular civil servant himself is not bonafide and justofied on his part that he
cannot seek remedy under at-least this provision due to his wrongful conduct and
involvement in the conduct of Moral Turpitude.

It was held in the famous case of K. Venkateshwarlu v. State of A.P.[9] that were
under a trial if a Civil Servant is convicted by the Court, than under such
circumstances it is obvious that the Disciplinary Proceedings are bound to follow
him, but even if he is held as acquitted than also Departmental Enquiry can be
conducted against him, if his acquittal is other than honourable

Where it is not practicable to hold Inquiry:


If the concerned authority is satisfied or thinks fir that in National Security or in Public
Interest it is necessary to dismiss or remove a civil servant from his post, than under such
circumstances the concerned must record that particular thing in writing and after that it is
not reasonably necessary or required to hold such inquiry.

Like in the case of Jaswant Singh v. State of Punjab[10] Hon'ble Supreme Court of India
ruled that making baseless considerations and claims that the appellant would cause harm
and injury to the witnesses or will cause problems in the Departmental Enquiry, in the
absence of any concrete evidences are baseless and un-acceptable. Therefore the Dismissal
Order against the Appellant was set aside and he was re-instated on his post with all the
necessary allowances and due salaries from the date of dis-missal.

Even the Article 311 expressly provides some exceptions in it's provisions where the
Doctrine of Audi Alteram Partem i.e. Principles of Natural Justice doesn't applies, like when
the appropriate authority like the President or Governor of the State is satisfied that it is
feasible to remove the Civil Servant from his post due to Public Interest, Public Good or
Public Policy than this remedy is not available under such circumstances

Proceedings beyond proof of reasonable doubt is not applicable:

In the Disciplinary Proceedings being instituted against any civil servant the proof
beyond a reasonable doubt will not apply. It must follow a sense of reasonableness
and must not be hypothetical and too remote to be exercised or happened. Even
what could a prudent man could have done in reasonable circumstances must be
considered before reaching on any conclusion, there must be active evidences
against the concerned officers otherwise the investigation cannot be regarded as
valid and justified.

Quantum of Punishment must be Reasonable and Acceptable:

It is a noted fact that, the punishment being awarded to the Civil Servant for his mis-
conduct or wrongful deed rests with the concerned Investigating Officer or the
Disciplinary Authority, however the Judiciary has clearly told that the punishment
must not be excessive and un-reasonable to the ratio of the crime committed
otherwise the validity and acceptability of the said order is supposed to be
challenged under the Court of Law for extraneous punishment which is totally un-
warranted

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