TITLE OF THE RESEARCH PAPER: Constitutional Protection to Civil Servants

Name of the Program: 5 year (B.A., LL.B.)

Name of the Subject:

Administrative Law

Name of the Faculty Member

Dr. K. Sudha

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA, SABBAVARAM, VISAKHAPATNAM - 531035

ANDHRA PRADESH, INDIA

1
CONTENTS

1. Abstract…………………………………………………………………………………………3

2. Synopsis………………………………………………………………………………………...4

3. Introduction…………………………………………………………………………………..…6

4. Civil Servants………………………………………………………………………………..….6

5. Recruitment and conditions of service………………………………………………………….7

6. Doctrine of pleasure…………………………………………………………………………….8

7. Constitutional safeguards to civil servants……………………………………………………..9

A) Restrictions on the doctrine of pleasure……………………………………………….…..10

B) Article 311 Applies to both temporary and permanent services…………………………..14

C) Exclusion of Article 311(2)……………………………………………………………….15

D) Article 311(3)……………………………………………………………………………...18

8. Limitations of judicial process relating to protection of civil servants………………………..19

9. Extent of Limitation…………………………………………………………………………...20

10. Alternative Mechanism………………………………………………………………………20

11. Findings and Suggestions……………………………………………………………………21

12. Conclusion…………………………………………………………………………………...22

13. Bibliography…………………………………………………………………………………23

2
ABSTRACT

In India, there exists no specific judicial remedy available exclusively to Civil Servants.
Whenever an aggrieved Civil Servant wants redress he has to seek the general remedies available
to all others and there exists no privilege or special status in this regard. The present article is an
attempt to draw out the practical implication of the judicial decisions explaining the extent and
scope of judicial control in Government’s relation to Civil Service matters. Any system of
judicial control of administrative action is ultimately based on the wider concept of the rule of
law. Since the judiciary has to uphold the law of the country the action of authority contrary to
the law could be challenged in a Court of law. But the above statement does not mean that every
person whose interest is adversely affected by an administrative order can approach the Court for
redress. The role of the judicial institutions is only sporadic and peripheral in reconciling the
interests of the Government and the governed. The masterpiece work has been to deal with
various legal, constitutional and fundamental rights of a Civil Servant. The problem of this
branch of law requires besides an examination of the rights and obligations of the Government
and the Civil Servants. A study of the remedies available to each party if the other violates the
obligations imposed on him. The enforcement of the formal rules of law on the Civil Servant is
comparatively easy because the Government being the pay-master and the holder of the power of
all grades of termination of employment up to dismissal can generally speaking act on its own.

3
SYNOPSIS

Introduction: Civil Servants are considered as the back bone of the administration. In order to
ensure the progress of the country it is essential to strengthen the administration by protecting
civil servants from political and personal influence. So provisions have been included in the
Constitution of India to protect the interest of civil servants along with the protection of national
security and public interest. Part XIV of the Constitution of India deals with Services under The
Union and The State. Article 309 empowers the Parliament and the State legislature 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 any State respectively.

Objective: The main objective of the study is to gain legal knowledge. To know how to do a
legal research. To analyze facts and circumstances of this topic and to know about the
Constitutional protection to civil servants.

Research Questions:

1. Whether Article 311 of Indian constitution is over protective and promote arbitrary action?

2. When can a Civil Servant claim the protection afforded by the Constitution?

Literature review: A brief review of the literature relating to the present study been detailed as
follows:- 

1. Harold J. Laski’svaluable treaties entitled “Parliamentary Govt. in England” & “The Growth
of Administrative Discretion”

It gives a wonderful account of the Home Civil Service of England tracing down its history its
relevance for the day and the impact it has had on the English Society and politics as a whole.

2. Constitutional and Administrative Law by John Alder and Constitutional Law by E.C.S. Wade
& Godfrey Philips have a tremendous impact on Civil Service & Civil Servant.

3. “The Civil Servant under the Law and the Constitution” by Dr N. Narayan Nair, casting
increasing attention on the roles governing the conduct of the Civil Servant and legislations that
control Civil Service, aimed at enhancing disciplined efficiency and fair service conditions. 

4
Research Methodology: This research is purely Doctrinal. The nature of the study is
explanatory study. Sources we have collected are – primary sources and secondary sources.

Primary sources: primary sources involve books, bare acts, library resources, articles, etc.

Secondary source: Secondary sources involve electronic sources that have been largely used to
gather information and data about the topic.

Scope of the Project: The geographical scope of this project work is mainly limited to
Administrative law and Indian constitutional law. Therefore, the study will cover only their own
code laws.

Significance of the study: The political-administrative culture of centralism which has been
fostered since independence has been largely responsible for the problems under review in the
Civil Service. During recruitment and promotion, attracting the best and the brightest to join the
Civil Service should be the only criteria to give impetus to the growth and dynamism of the
public sector. It is an experience that persons appointed on acting capacity are not ready to take
concrete decisions for fear of either losing their jobs or being held responsible in case of
anything done wrong. existing laws, rules and regulations to counter the menace of increasing
Politicization, Corruption, Lack of Transparency and Accountability in (a) the recruitment and
promotion of Civil Servants in India, (b) streamlining the procedure/manner in which
recruitment and promotion are carried out in the Civil Service so as to increase the efficiency in
service delivery, (c) determining conditions of service of Civil Servants and (d) ascertaining
dispute settlement mechanisms of service matters.

5
Introduction

Articles 309 to 323 of the Constitution make elaborate provisions for the Central and Sate
services. The Civil servant is indispensable to the governance of the country in the modern
administrative age. Ministers frame policies and legislatures enact laws, but the task of
efficiently and effectively implementing these policies and laws falls on the civil servants. The
bureaucracy thus helps the political executive in the governance of the country. The Constitution,
therefore, seeks to inculcate in the civil servant a sense of security and fair play so that he may
work and function efficiently and give his best to the country. Nevertheless, the overriding power
of the government to dismiss or demote a servant has been kept intact, even though safeguards
have been provided subject to which only such a power can be exercised.

The service jurisprudence in India is rather complex, intertwined as it is with legislation, rules,
directions, practices, judicial decisions and with principles of Administrative Law, Constitutional
Law, Fundamental Rights and Natural Justice. The role of the courts in this area is crucial as they
seek to draw a balance between the twin needs of the civil service, viz., (1) the need to maintain
discipline in the ranks of the civil servants; and (2) the need to ensure that the disciplinary
authorities exercise their powers properly and fairly.1

CIVIL SERVANT

The term civil servant includes members of a civil service of the Centre or a State, or of an all-
India service, or all those who hold civil posts under the Centre or a State. A ‘civil post’ means
an appointment or office on the civil side and includes all personnel employed in the civil
administration of the Union or a State. The relation of master and servant between the state and
the employee is necessary to make a civil post ‘under the Government’. Whether such
relationship exists is a question of fact to be decided in each case. A host of factors have to be
taken into consideration to determine such relationship. None of these factors may be conclusive
and no single factor may be considered absolutely essential. If the answer to all these factors is,
the Government then it is a civil post under the Government. Co-existence of all these indicia is
not predicted in every case to make the relationship as one of master and servant. In special

1 Prof M P JAIN Indian Constitutional Law (LEXISNEXIS Butterworths Wadhwa Nagpur Fifth Ed.2008) at 1427

6
classes of employment, a contract of service may exist even in the absence of one or more of
these indicia.

A civil post outside the regularly constituted services does not have to carry a definite rate of
pay; he may be paid on commission basis; the post need not be whole-time, it may be part-time
and its holder may even be free to engage himself in other activities. What is important,
however, is the existence of the master servant relationship. The term; civil servant; does not
include a member of a defence service, or even a civilian employee in defence service who is
paid salary out of the estimates of the Ministry of Defence. These persons, therefore, while
falling under Articles 309 and 310 do not enjoy the protection of Article 311. A member of the
police force, however, is a ‘civil servant’.2

In State of Gujarat V, Ramanlal Keshav Lal 3, the Supreme Court has held the Panchayat
service in Gujarat created by a State law to be State civil service and its members as servants of
the State.

RECRUITMENT AND CONDITIONS OF SERVICE

According to Art.309, Parliament or a State Legislature may, subject to the provisions of the
Constitution, regulate the recruitment and conditions of service of persons appointed to the
public services and posts in connection with the affairs of the Union or the State, as the case may
be. Pending such legislation, the President, or the Governor, or any person authorized by him,
may make rules in this respect [Proviso to Art 309]. The rules take effect subject to any
legislation that may be enacted for the purpose. This rule-making power is thus in the nature of
an interim power to be exercised by the Executive so long as the Legislature does not act.

The rule-making power is characterized as ‘legislative’ and not ‘executive’ power as it is a

power which the legislature is competent to exercise but has not in fact exercised.

Rules made by the Government under this power are regarded as legislative in character and so
these rules can even be made to take effect retrospectively, but the Supreme Court has said that

2 Prof M P JAIN Indian Constitutional Law (LEXISNEXIS Butterworths Wadhwa Nagpur Fifth Ed.2008) at 1434
3 AIR 1984 SC 161

7
the President/Governor cannot make such retrospective rules under Art.309 as contravene
Arts.14, 16 or 311 and “affect vested right of an employee”.4

In T. K. Rangarajan V. Government of Tamil Nadu 5, the Government employees had gone on

strike for their demands. The Government employees had challenged the validity of the Tamil
Nadu act and the Ordinance. The Courts said that “Government employees cannot hold society
to ransom/going on strike”. The Bench said that if the employees felt aggrieved by any
Government action, they should seek redressal from the statutory machinery provided under
different statutory provisions for redressal of their grievances. The Courts said strike as a weapon
is mostly misused which results in chaos and total mal-administration. Strike affects the society
as a whole and particularly when 2 lakh employees go on strike the entire administration comes
to a grinding halt. The Court also agreed with the contention of the State government that 90% of
the revenue raised through direct tax was spent on the 12 lakh government employee in the state.
Thus in a society where there is large scale employment and a number of qualified persons are
eagerly waiting for employment strike cannot be justified on any equitable grounds. The
Supreme Court has also held that Government servant has no right to go on strike, neither moral
nor statutory.

DOCTRINE OF PLEASURE

In Britain, traditionally, a servant of the crown holds office during the pleasure of the crown.
This is the common law doctrine. The tenure of office of a civil servant, except where it is
otherwise provided by a statue, can be terminated at any time at will without assigning any
cause, without notice. The civil servant has no right at common law to take recourse to the
courts, or claim any claim any damages for wrongful dismissal. He cannot file a case for arrears
of his salary. The crown is not bound even by any special contract between it and a civil servant
for the 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 that the crown should not be bound to continue in public service any
person whose conduct is not satisfactory. The doctrine is based on public policy, the operation of

4 Prof M P JAIN Indian Constitutional Law (LEXISNEXIS Butterworths Wadhwa Nagpur Fifth Ed.2008) at 1428
5 AIR 2003 SC 3032

8
which can be modified by an Act of parliament. In practice, however, things are different as
many inroads have been made now into the traditional system by legislation relating to the
employment, social security and labour relations. As De Smith observers: “the remarkably high
degree of security enjoyed by established civil servant surpassed only by judiciary, was not
recognized by rules applied in the courts”.

A similar rule is embodied in article 310 (1) which lays down that the defense personnel and
civil servant of the Union and the members of an All-India service, hold office during the
‘Pleasure of the President’. Similarly, a civil servant in a state holds office ‘during the pleasure
of the Governor’. This is the general rules which operates “doctrine of pleasure” is subject to
general constitutional limitations.

Therefore, when there is a specific provision in the constitution giving to servant tenure different
from that provide in Article 310, then that servant would be excluded from the operation of the
doctrine of pleasure. The Supreme Court Judges [Art. 124], Auditor-General [Art.148], High
Court Judges [Arts, 217, 218], a member of a Public Service Commission [Art 317], and the
Chief Election Commissioner have been expressly excluded by the Constitution from the rules of
pleasure.6

CONSTITUTIONAL SAFEGUARDS TO CIVIL SERVANTS

Civil Post

The protective safe guards given under Article 311 are applicable only to civil servants, i.e.
public officers. They are not available to defence personnel. In State of U. P. v A. N. Singh 7 the
Supreme Court has held that a person holds a civil post if there exists a relationship of master
and servant between the State and the person holding the post. The relationship is established if
the State has right to select and appoint the holder of the post, right to control the manner and
method of his doing the work and the payment by it of his wages or remuneration.

A) Restrictions on the doctrine of pleasure

6 Prof M P JAIN Indian Constitutional Law (LEXISNEXIS Butterworths Wadhwa Nagpur Fifth Ed.2008) at 1431
7 AIR 1965 SC 360

9
Article 311 provides the following safeguards to civil servants against any arbitrary dismissal
from their posts:

(1) No person holding a civil post under the Union or the States shall be dismissed, or removed
by authority subordinate to that by which he was appointed. [Art 311 (1)]. This does not mean
that the removed or dismissed 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.8

In Mahesh v. State of Uttar Pradesh,9 the person appointed b y the Divisional Personnel
Officer, E.I.R., was dismissed by the Superintendent, Power, E.I.R. the Court held the dismissal
valid as both the officers were of the same rank.

(2) No such person shall be “dismissed”, “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.

It is mandatory under Article 311(2) to make an inquiry before the dismissal, removal or
reduction in rank of a civil servant. In that inquiry the civil servant has to be informed of the
charges against him and given a reasonable opportunity of being heard in respect of those
charges.

In Khem Chand V. Union of India,10 The Supreme Court held that the ‘reasonable opportunity
envisaged by Art.311 includes: (1) An opportunity to deny his guilt and establish his innocence
which can be only done if he is told what the charges against him are and the allegation on which
such charges are based; (2) An opportunity to defend himself by cross-examining the witnesses
produced against him and by examining himself or any other witnesses in support of his defence;
and also (3) An opportunity to make his representation as to why the proposed pxcd vunishment
should not be inflicted on him, which he can only do so if the competent authority, after the
enquiry is over and after applying his mind to the gravity of the charges, tentatively proposes, to
inflict one of the three major punishments and communicates the same to the Government

8 Dr. J.N.PANDEY The Constitutional Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 656
9 AIR 1955 SC 70
10 AIR 1958 SC 300

10
servant. Originally, the opportunity to defend was given to a civil servant at two stages: (1) At
the enquiry stage, and this is an accord with the rule of natural justice that no man should be
condemned without hearing; (2) At the punishment stage, when as a result of enquiry the charges
have been proved and any of three punishments, i.e. dismissal, removal or reduction in rank were
proposed to be taken against him. The Constitution (42nd Amendment) Act, 1976, has abolished
the right of the Government servant to make representation at the second stage of the inquiry.

The newly added proviso to Art.311 (2) makes it clear that if after inquiry it is proposed to
impose upon a person any of the three punishments, i.e., dismissal, removal or reduction in rank,
they may be imposed on the basis of the evidence given during such inquiry and he shall not be
entitled to make any representation. The above mentioned punishments will be imposed on the
basis of the evidence adduced during the time of inquiry of charges against the Government
servant.11

In Managing Director, ECIL v. B. Karunakar12, the Supreme Court has held that when the
enquiry officer is not disciplinary authority, the delinquent employee has a right to receive the
copy of the enquiry officer’s report so that he could effectively defend himself before the
disciplinary authority. A denial of the enquiry officer’s report before the disciplinary authority
takes its decision on the charges is a denial of the principles of natural justice. The protection
under Article 311 (2) is available only where dismissal, removal or reduction in rank is proposed
to be inflicted by way of punishment and not otherwise. ‘Dismissal’ and ‘removal’ are
synonymous terms but in law they acquired technical meanings by long usage in Service Rules.
There is, however, one distinction between the ‘dismissal’ and ‘removal’, that is, while in case of
‘dismissal’ a person is debarred from future employment, but in case of ‘removal’ he is not
debarred from future employment.

i)Termination of Service when amounts to punishment

11 Dr. J.N.PANDEY The Constitutional Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 656
12 1993(4) SCC 727

11
The protection of Art.311 is available only when ‘the dismissal, removal or reduction in rank is
by way of punishment’. The main question, therefore, is to determine as to when an order for
termination of service or reduction in rank amounts to punishment.13

In Parshottam Lal Dhingra V. Union of India14, the Supreme Court has laid down two tests to
determine whether the termination is by way of punishment- (1) Whether the servant had a right
to hold the post or the rank; (2) Whether he has been visited with evil consequences. If a
Government servant had a right to hold the post or rank either 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 the protection of Art. 311. The
Supreme Court held that the appellant had no right to the post as he was merely officiating in the
post and the implied term of such appointment was that it was terminable at any time on
reasonable notice by the Government. The appellant was not reduced in rank by way of
punishment and, therefore, he cannot claim the protection of Art.311 (2). In a case where a
Government servant has no right to hold the post or rank his termination from service or
reversion does not amount to punishment, since it does not forfeit any right of the servant to hold
the post or rank as he never had that right.

ii) Suspension is not punishment

The suspension of a Government servant from service is neither dismissal or removal nor
reduction in rank; therefore, if a Government servant is suspended he cannot claim the
constitution guarantee of reasonable opportunity. When, the services of a Government servant
are terminated for bonafide reasons as a consequence of the abolition of the post held by him,
Art. 311(2) need not be complied with.15

In Divisional Personnel Officer, Western Railway V. Sunder Das,16 where an employee is

suspended during the disciplinary inquiry but the dismissal order is set aside by the court and a
fresh inquiry is ordered against him on the same charge it was held that the initial suspension

13 Dr. J.N.PANDEY The Constitutional Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 657
14 AIR 1958 SC 361
15 Dr. J.N.PANDEY The Constitutional Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 659
16 AIR 1981 SC 2177

12
continued till the final order of dismissal was passed and the employee was entitled to
subsistence allowance only and not full wages.

iii) Compulsory retirement simpliciter not punishment

A premature retirement of a Government servant in ‘public interest’ does not caste a stigma on
him and no element of punishment is involved in it and hence the protection of Art. 311 will not
be available. The expression in the context of premature retirement has a well settled meaning
and refers to cases where the interest of public administration require the retirement of a
Government servant who with the passage of years has prematurely, ceased to possess the
standard of efficiency, competence and utility called for by the Government service to which he
belongs. The power to compulsorily retire a government servant is one of the face of the doctrine
of pleasure incorporated in Art.310 of the Constitution. The object of compulsory retirement is to
weed out the dead wood in order to maintain efficiency and initiative in the service and also to
dispense with the services of those whose integrity is doubtful so as to preserve purity in the
administration.17

Guidelines for Compulsory retirement Stated

In State of Gujarat v. Umedbhai M. Patel,18 the Supreme Court has laid down following
principles governing compulsory retirement

1. When the services of a public servant are no longer useful to the general administration, the
officer can be compulsorily retired for the sake of public interest.

2. Ordinarily the order of compulsory retirement is not to be treated as a punishment under

art.311 of the Constitution.

3. For better administration, it is necessary to chop off wood but the order of compulsory
retirement can be based after having due regard to entire service record of the officer.

4. Any adverse entries made in the confidential record shall be taken note of and be given due
weightage in passing such order.

17 Dr. J.N.PANDEY The Constitutional Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 659
18 AIR 2001 SC 1109

13
5. Even uncommunicated entries in the confidential record can also be taken into consideration.

6. The order of compulsory retirement shall not be passed as a short cut to avoid departmental
inquiry when such course is more desirable.

7. If the officer is given promotion despite adverse entries made in the confidential record that is
a fact in favour of the officer.

8. Compulsory retirement shall not be imposed as punitive measure.

B) Article 311 applies to both temporary and permanent servants:

The constitutional guarantee of reasonable opportunity is available to both permanent and

temporary servants. Article 310 makes no distinction between permanent and temporary
members of the service or between persons holding temporary or permanent post in the matter of
their tenure being dependent upon the pleasure of President or the Governor, so does Article 311
make no distinction between the two classes, both of which are, therefore within its protection
and the decisions holding the contrary view cannot be supported as correct. However, if a
Government servant is holding a temporary post, termination after reasonable notice cannot
entitle him to the protection of the safeguards provided in article 311(2) because he has no right
to the post held by him.19

In Union of India V. Jagdish Prasad,20 Where the petitioner was promoted to a higher post and
there was nothing to show that the initial promotion was on permanent basis and in view of this
reversion was violative of Art 311 (2).

In State of Punjab V. Sukh Raj Bahdur,21 the Supreme Court after summarizing the principles
relating to the applicability of Art.311 of the temporary servants and probationers laid down the
following propositions:

(1) The services of a temporary servant or of a probationer can be terminated under the rules of
his employment and such termination without anything more will not attract the operation of
Article 311.

19 Dr. J.N.PANDEY The Constitutional Law of India (Central Law Agency Allahabad 45th Ed. 2008) at 662
20 AIR 1982 SC 773
21 AIR 1968 SC 1089

14
(2) The circumstances preceding or attended on the order of service have to be examined in each
case, the motive behind it being immaterial.

(3) If the order visits the public servant with any evil consequences or casts an aspersion against
his character or integrity, it must be considered to be one by way of punishment, no matter
whether he was a mere probationer or a temporary servant.

(4) An order of termination of service in unexceptionable form preceded by an enquiry launched

by the superior authorities only to ascertain whether the public servant should be retained in
service does not attract Article 311.

(5) If there is a full scale departmental enquiry envisaged by article 311, that is, an enquiry
officer is appointed, a charge-sheet submitted, explanation called for and considered, any order
of termination of service made thereafter will attract article 311.

Reduction in Rank

Reduction in Rank means reduction from a higher rank or post to a lower rank or post and not
loosing place in rank or cadre. In State of Punjab v Kishan Das, 22 the Supreme Court held that a
mere reduction in the salary in the same cadre is not reduction in rank.

C] EXCLUSION OF ART.311(2)

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:

❖ 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

22 AIR 1971 SC 766

15
extenuating circumstances, if any. This is 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.23

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,24 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”.

❖ 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.

23 Prof M P JAIN Indian Constitutional Law (LEXISNEXIS Butterworths Wadhwa Nagpur Fifth Ed.2008) at 1460
24 AIR 1985 SC 772

16
In Union of India V. Tulsiram Patel,25 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.

❖ 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 Cl. (c).

In BK Sardari Lal V. Union of India,26 the Supreme Court ruled that under this constitutional
provision, ‘satisfaction’ must be that of the President of or Governor personally and that function
could not be allocated or delegated to anyone else. But this view was overruled in Shamsher
Singh, and Sripati Ranjan. Thus, ‘personal satisfaction’ of the President or the Governor is not
necessary to dispense with the inquiry. Such ‘satisfaction’ may be arrived at by anyone
25 AIR 1985 SC 1416
26 AIR 1971 SC 1547

17
authorized under the Rules of Business. It is the satisfaction of the president or the Governor in
the constitutional sense.

D] Art. 311(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 discuss or remove such person or to reduce him in rank shall be final.”
This finality clause refers mainly to the situation covered by Art.311 (2) (b), proviso II,
mentioned above. The Supreme Court has however ruled that Art. 311(3) does not completely
bar judicial review of the action taken under Clause 2(b) of Art.311, second proviso.

In Union of India V. Tulsiram Patel,27 the Supreme Court held that: “the finality given by
clause (3) of Art.311 to the disciplinary authority’s decision that it was not reasonably
practicable to hold the inquiry is not binding upon the Court. The Court will also examine the
charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons,
the Court will consider the situation which according to the disciplinary authority made it come
to the conclusion that it was not reasonably practicable to hold the inquiry. If the Court finds that
the reasons are irrelevant then the recording of it satisfaction by the disciplinary authority would
be an abuse of power conferred upon it by clause (b) and would take the case out of the purview
of that clause and the impugned order of penalty would stand invalidated. In considering the
relevancy of the reasons given by the disciplinary authority, the Court will not however, sit in
judgment over them, like a court of first appeal.”

In Jaswant Singh V. State of Punjab,28 the Supreme Court has reiterated the proposition that in
spite of Art. 311(3) the “finality can certainly be tested in a court of law and interfered with if the
action is found to be arbitrary or mala fide or motivated by extraneous consideration or merely a
ruse to dispense with the inquiry.

Even the President’s satisfaction under Cl. (c) mentioned above, can be examined by the court on
such grounds as mala fides, or being based wholly on extraneous and/or irrelevant grounds.

27 AIR 1985 SC 1416

28 AIR 1991 SC 385

18
LIMITATIONS OF JUDICIAL PROCESS RELATING TO PROTECTION OF CIVIL
SERVANT

There is a point of view that Article 311 of the Constitution of India gives only procedural
protection and where such procedural rules are followed meticulously the Court’s power of
review is ousted.

This view is substantiated by cases where the authorities have started fresh proceedings after the
Courts have quashed an order of punishment 29 or where the punishment has been increased on
appeal to a superior authority. But the above view is not wholly true. It is to be admitted that the
administration would suffer if the authorities are unable to deal with corrupt, inefficient
insubordinate or anti-national elements inside the departments. But at the same time, it is the
bounden duty of the Court to see also that such a power is not abused or exercised to attain an
ulterior purpose or on any extraneous consideration. Apart from the doctrine of abuse of power
the Courts have entered into the matter in some instances and where the Courts have interfered
on the merits of the case no fresh proceedings could be started on the same facts. The same result
follows where a Criminal Court acquits the Civil Servant on the merits of the case. The Court
can intervene where the order is proved to be mala fide or where the order is based on no
evidence. The punishing authority cannot close its mind before the representation made at the
second show-cause notice stage and if this fact appears from the record the Court would
intervene. A complete order found ultra virus Article 311 cannot be subsequently validated by
omitting the invalid part and construing the valid part only. The reliance on the principle that an
order is not invalid simply because it is assailable on some findings only but not on others. 30
Clearly shows that the Court looks at the matter as one of substance and not of procedure only.

Extent of Protection

Article 311 cannot be invoked in cases of compulsory retirement in public interest, termination
of service during probation or termination of service which was temporary for a fixed period.
Although there have been cases where the Supreme Court has extended the use of Article 311 as
follows-
29 Devendra Pratap v. State of Uttar Pradesh, A.I.R. 1962 S.C. 1334
30 State of Orissa v. Bidya Bhusan A.I.R. 1963 S.C. 779.

19
 1. In case of compulsory retirement – In Baikunth Das v. Chief Medical Officer,31 it was
held that the matter of compulsory retirement is on the basis of subjective satisfaction and
not on the basis of any behavior. The proceedings are also not quasi-judicial and hence
the principles of natural justice are not attracted.
2. In case of termination during probation – In this situation, the government is free to
terminate the service of the probationer or temporary worker without the services of
Article 311 becoming applicable.

ALTERNATIVE MECHANISMS

The opinion of the Supreme Court in Sambamurthy case 32 as regards alternative mechanisms for
judicial review cannot be construed as binding precedents under Article 141 of the Constitution
that the tribunals constituted under the Administrative Tribunals Act, 1985 are invested with
power to ‘deal with a question pertaining to the constitutionality or otherwise of such laws as
offending Articles 14 and 16 (1) of the Constitution does not become a binding precedent”.    

Later on the Supreme Court of India in L. Chandra Kumar v. Union of India 33 has approved the
view taken by the Andhra Pradesh High Court in Sakinala Harinath v. State of Andhra Pradesh, 34
the Supreme Court held as follows: “The Tribunals will, however, continue to act as the only
courts of the first instance in respect of the areas of law for which they have been constituted.

By this, the court mean that it will not be open for litigants to directly approach the High Court’s
even in cases where they question the vires of statutory legislations (except where the legislation
which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the
Tribunal concerned”.

“The court, therefore held that all decisions of Tribunals whether created pursuant to Article 323-
A or Article 323 B of the Constitution will be subject to the High Court’s writ jurisdiction under
Articles 226/227 of the Constitution before a Division Bench of the High Court within whose

31 (1992) 2 SCC 299

32 AIR 1987 SC 663
33 AIR 1997 SC 1125
34 1993 (3) ALT 471

20
territorial jurisdiction the particular Tribunal falls This will serve two purposes. While saving the
power of judicial review of legislative action vested in the High Court’s under Articles 226/227
of the Constitution it will ensure that frivolous claims are filtered out through the process of
adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on
merits which will be of use to it in finally deciding the matter”.

SUGGESTION & RECOMMENDATIONS

From the above it shows that the various judicial pronouncements evoked by the judiciary for
determining whether a particular action amounted to dismissal or removal is far from being
satisfactory. The question is, Can a more plausible solution be found out? It may be pointed out
that Justice Das in Shyam Lal’s case had suggested a more comprehensive solution. To quote his
Lordship: “…removal generally implies that the officer is regarded as in some manner
blameworthy or deficient that is to say that he has been guilty of some misconduct or is lacking
in ability or capacity or the will to discharge his duties as he should do. The action of removal
taken against him in such circumstances is thus founded and justified on some ground and
levelling of some imputation or charge against the officer which may conceivably be
controverter or explained by the officer”.

If we took into account the meaning of removal as expounded in Shyam Lal’s case, it will
exclude from its purview (a) termination of service brought about by voluntary retirement (b)
termination of service on reaching the age of superannuation which is usually based on
administrative policy and (c) Termination of service due to abolition of posts etc. This meaning
will definitely harmonies the context in which these words have been used. This will further
make it clear that except in the cases mentioned above a civil servant will have to be heard in
respect of the charges levelled against him failing which it may have the effect of vitiating the
order of his removal from service. Once we accept the truth contained in the observations of
Justice Das it will definitely effectuate the true constitutional purpose of Article 311 and put a
rider on governmental power to assign these words on artificial meaning by framing rules in this
regard. This will also inspire new confidence in the minds of the Civil Servants and they will feel
more secure in their positions which in the ultimate analysis will improve their efficiency and
capability.

21
CONCLUSION

The Constitution of India through Article 311 thus protects and safeguards the rights of civil
servants in Government service against arbitrary dismissal, removal and reduction in rank. Such
protection enables the civil servants to discharge their functions boldly, efficiently and
effectively. The public interest and security of India is given predominance over the rights of
employees. So conviction for criminal offence, impracticability and inexpediency in the interest
of the security of the State are recognized as exceptions. The judiciary has given necessary
guidelines and clarifications to supplement the law in Article 311. The judicial norms and
constitutional provisions are helpful to strengthen the civil service by giving civil servants
sufficient security of tenure. But there may arise, instances where these protective provisions are
used as a shield by civil servants to abuse their official powers without fear of being dismissed.

Disciplinary proceedings initiated by Government departments against corrupt officials are time
consuming. The mandate of ‘reasonable opportunity of being heard’ in departmental inquiry
encompasses the Principles of Natural Justice which is a wider and elastic concept to
accommodate a number of norms on fair hearing. Violation of Principles of Natural Justice
enables the courts to set aside the disciplinary proceedings on grounds of bias and procedural
defects.

BIBLIOGRAPHY

1. Pandey, Dr. J.N, The Constitutional Law of India, 2010

2. Jain, M.P., & Jain, S.N., Principles of Administrative Law, 2008

3. Sathe, S.P., Administrative Law, 2010

4. Kesari, Dr. U.P.D., Administrative Law, 2010

5. Jain, M.P., Indian Constitutional Law, 2018

22
23