- Corruption is prevalent in every part of the world and so is the increase in crime rates.
- The government servants are the bridge between the government and the people.
- Any action or misconduct of the govt. servant which leads to registration of complaint has to be dealt with care and precision.
- The Constitution has provisions to protect them from being unnecessarily targeted.
- The article discusses the exceptions to Article 311 and the procedure for departmental enquiry.
The government servants are an important pillar of our society and it is their work which makes things easier for everyone. A government job is going to give you stability and a good salary. That is the reason many Indian families prefer that their children get a government job. They act as a link between the citizens and the leaders. Our grievances and concerns are addressed by them and they do their job very efficiently.
But there are still some people who tend to misuse their position. For this very reason, the Constitution makers had already framed provisions for the same. With so many incidents of civil servants and other government officials being implicated in corruption, it’s worth knowing what procedures are in place in Indian Constitution to punish them. In a recent incident, a policeman was accused of rape and he was dismissed from service. The Court on appeal held that he could not be dismissed without departmental enquiry on the ground of damaging the victim’s dignity since she would have to go through the trial procedure to provide evidence.
Doctrine of Pleasure
The Indian Constitution's Doctrine of Pleasure is also based on the same policy concerns as the common law in England. The British Crown has the origin of the Doctrine of Pleasure. In England, a servant of the Crown retains office for the duration of the Crown's pleasure, and he can be dismissed from the Crown's service at any time. A government servant's term of office can be terminated at any moment, with or without cause. Even though the Crown and the civil servant in question have a particular contract, the Crown is not obligated by it. The civil servant is subject to dismissal without cause, and they are not entitled to compensation for wrongful dismissal or premature termination of employment. Though the notion of pleasure is acknowledged in India in the same way as it is in England, it is not universally embraced. Under India, the Pleasure Doctrine is codified in Article 310 (1).
Article 311 is a protection provision for the government servants from being dismissed or removed from their position by someone subordinate to the person who appointed him and also lays down the exceptions for the same. Only when dismissal, removal, or a decrease in rank is done as a form of punishment, Article 311 would be applicable. As a result, determining when an order of termination of service or a decrease in rank constitutes punishment is challenging.
In the case of Parshottam Lal Dhingra v. Union of India, the Supreme Court established two factors to assess if a termination constituted punishment: whether the servant had a right to retain the office or rank in the first place, and whether he was subjected to evil consequences. If a government employee has a right to hold a particular post or rank under the provisions of a service contract or a law governing the service, then his dismissal or decrease in rank is a punishment, and he is entitled to protection under Article 311. Government employees, whether permanent, temporary, officiating, or on probation, are covered under Articles 310 and 311.
Article 311 (2) stipulates that in certain instances, the method outlined in the substantive part of the clause does not have to be followed.
- Conviction on a criminal charge- One of the conditions exempted by clause (a) of the provision is when a person is dismissed, removed, or demoted because of actions that led to his criminal conviction. This exception is justified by the fact that in cases when a court of law has already rendered a decision, a formal inquiry is not required. On the other hand, if a conviction is overturned or annulled on appeal by a higher court, the Government employee will be considered not to have been convicted at all. The government employee will then be handled as if he had never been convicted and the dismissal order had never existed. In this situation, the Government employee will also be entitled to compensation for the time that the dismissal order was in effect. Because the claim for such salary arrears will only arise after reinstatement, the limitation period under Section 102 of the Limitation Act will only apply to that date.
- Impracticability- Clause (b) of the proviso states that if the relevant disciplinary authority is satisfied, for reasons to be stated in writing, that giving the individual an opportunity to explain cause is not reasonably practicable, no such opportunity must be granted. The satisfaction required by this Section must come from the disciplinary authority that has the jurisdiction to dismiss, remove, or downgrade the rank of the Government employee. As a safeguard against arbitrary application of this exception, it has been stipulated that the grounds for the responsible authority's decision to disregard the established procedures must be documented in writing, stating why it would be impossible to afford the accused an opportunity. This exemption could be used in situations where, for example, a person has gone missing or it is impossible to connect with him for other reasons.
- Security considerations- When the President is satisfied that a person's continued service in the public sector is jeopardising the state's security, his services might be terminated without recourse to the customary procedure established in Article 311 (2). The satisfaction alluded to in the proviso is the President's subjective satisfaction with the necessity of not affording the employee concerned an opportunity in the interest of the State's security. The grounds for the satisfaction are not required to be reported in writing under this provision.
Procedure of Dept. Enquiry
Suspension from service is not the same as dismissal, removal, or decrease in rank, according to the Supreme Court in Bansh Singh v. State of Punjab. As a result, if a government employee is suspended, he cannot claim the constitutional guarantee of Article 311. The Supreme Court held in Shyam Lal v. State of U.P. that compulsory retirement differs from dismissal and removal because it has no legal consequences and a government servant who is compulsory retired does not lose any of the benefits earned during his or her service, so it does not fall under Article 311.
The method to be followed in disciplinary hearings is outlined in Service Rules and Standing Orders. The procedure, however, is subordinated to the rules of the Indian Constitution, i.e. no rule can be ultra-vires the Constitution's provisions. The procedure for departmental enquiry starts with the filing of a complaint against the govt. servant for misconduct. The primary goal of the preliminary investigation is to assess whether there is a prima facie case against the official that warrants further investigation. On the direction of the disciplinary authority, the preliminary inquiry is conducted by the officer superior to the delinquent so that the disciplinary authority can determine whether or not a normal departmental inquiry is necessary. However, if the service regulations allow it, preliminary investigation is not usually required before launching a regular departmental investigation.
Following the conclusion of the preliminary investigation, a written record of the proceedings should be made. The investigation should result in a report detailing the findings, including whether all or any of the charges appear to be true, and to what extent a specific employee is to blame. After reviewing the report, the disciplinary authority should determine if there is a prima facie cause for launching a regular departmental investigation.
When a government employee is found prima facie guilty of wrongdoing in a preliminary investigation report, the disciplinary body issues a show cause notice, requesting him to explain why no further action should be taken against him. If the response to the show cause notice is deemed unacceptable by the disciplinary authority, formal departmental proceedings against the government employee begin with the filing of a charge-sheet against him. The proposed grounds for initiating formal departmental procedures should be narrowed to the form of a specific charge or charges.
The delinquent's response must be scrutinised by the disciplinary authority with extreme caution. If the delinquent confesses the charges, or any of the charges, and asks for mercy, there is no need for an investigation into those charges. The proceedings should be dropped if the delinquent's explanation is determined to be adequate and the authority decides to exonerate the delinquent and not to impose any penalty. If the disciplinary authority finds the delinquent official's response unsatisfactory, an Inquiry Officer is appointed to conduct a regular departmental investigation.
The delinquent employee has the right to defend himself, either directly or through another employee. The Inquiry Officer may allow a retired employee of the same department to present the case of the delinquent employee. In the first instance, the department should lead evidence against the delinquent in a departmental investigation. The delinquent should then be given the opportunity to cross-examine the witnesses who have been called against him. Any of the departmental witnesses may be recalled for further cross-examination at the request of the criminal, and if the Inquiry Officer is convinced that this is necessary in the interests of justice, he may recall such witnesses.
After all the proceedings are done, the findings of the authority and the report of the officer is submitted and a show cause notice is issued for the accused. The penalty on the govt. servant is decided based on the gravity of the offence.
In the growing world with huge number of crimes and increase in corruption cases at a steady rate, departmental enquiry is a must, as money can tarnish the resolves of a very strong willed person as well. A government employee is supposed to carry out his responsibilities with the greatest care, efficiency, and effectiveness possible. The procedure is extensive in order to verify that he does his duties without fear of being pressured or bribed. However, it also ensures that the staffs are disciplined. But the process is very lengthy. Even though it can be considered to be beneficial for the accused, but it delays the delivery of justice.