Constitutional Protection of Civil Servants in India
Discussing the scope of Constitutional protection of Civil servants in India.
Civil Servants or Bureaucrats are the backbone of the administration in any nation. The job of the government in modern welfare states is to frame laws and policies, legislatures enact those laws, but it is the civil servants who carry these laws and policies into action effectively and efficiently. So, the role of civil servants becomes extremely important as they help in executing the policies and programmes of the government. They are also the most visible face of government to the general public. India is the only country which provides the provisions of civil services in relation to law in the constitution.
Certain constitutional safeguards are given by the Constitution for the protection of these civil servants in India.
Article 311 puts certain restrictions on the absolute power of the President or Governor for removal , dismissal or reduction in rank of an officer.
Article 311 of Constitution of India reads as follows:
(1) No dismissal by subordinate authority
(2) Reasonable opportunity of being heard
As per this Clause, in order to remove a civil servant from his post following steps should be followed:
➢ Holding an enquiry for allegations made against the civil servant. This enquiry is known as departmental enquiry;
➢ Providing the accused civil servant with the information about what charges or on what grounds have been levelled against him;
➢ Providing such a civil servant with a reasonable chance of being heard in the case.
There is a general principle that a government servant holds his office during the pleasure of the government. This is a common law doctrine which states that the tenure of the civil servant can be terminated at any time without even assigning any reason or notice. The crown is not under an obligation to answer the questions or satisfy the wants of the common servant once he is dismissed.
In order to remove or dismiss a civil servant, it must be done by the same authority who has appointed him or his direct superior.
In Mahesh v. State of Uttar Pradesh, a person appointed by 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 held the same rank.
The protection under Article 311(2) is available only where dismissal or removal is proposed to be inflicted by way of punishment and not otherwise. The words ‘dismissal’ and ‘removal’ don’t hold the same meaning, ‘dismissal’ means to debar a person from future employment whereas in case of ‘removal’ he is not debarred from future employment.
In cases governed by Article 311 , an opportunity to defend has to be given to the civil servant at the stage of enquiry of charges against him, and this is in accord with the rule of natural justice that no man should be condemned unheard.
In Khem Chand V. Union of India, the Supreme Court held that the ‘reasonable opportunity envisaged by Article 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;
TERMINATION OF SERVICE OR REDUCTION IN RANK – WHEN AMOUNTS TO PUNISHMENT:-
The protection of Article 311 is only available when ‘the dismissal, removal or reduction in rank is by way of punishment’. The main question, here, is to determine as to when an order for termination of service or reduction in rank amounts to punishment. In Parshottam Lal Dhingra V. Union of India ,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 Civil Servant had a right to hold the post or rank either under the terms of contract of service, or under the rule governing about 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 Article 311. The appellant was not reduced in rank by way of punishment and, therefore, he cannot claim the protection under Article 311 (2). In a case where a Government servant has no right to hold the post or rank his termination from service or reversion it 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.
SUSPENSION IS NOT PUNISHMENT:-
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, Article 311(2) need not be complied with.
COMPULSORY RETIREMENT :-
A person who is compulsorily retired in accordance with the service rules cannot claim any right under this article because the retirement is not by way of punishment. A termination of service according to the terms of service or services rule will not amount to termination within the meaning of Clause (2).
In Gopal Krishna Potnay v. Union of India, a railway employee was discharged from service after giving 1 months notice according to the terms of his agreement of service. It was held that Article 311(2) did not apply.
Thus the constitution provides the provision for Civil Servants under Article 311 protecting and safeguarding their rights in government service against arbitrary dismissals, removal or reduction in rank . This provision helps them to perform their task efficiently and effectively. Security of the State is dominant over any rights that are given to any employee, so when there is something unlawful or is against the security of the state it is recognised as an exception. These rights are clarified in Article 311 of the Constitution where the judicial norms and constitutional provisions strengthen the service of these servants.
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