4 - 4 - Doctrine of Pleasure PDF

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PROF . RAKESHKUMAR...

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Constitutional Protection of Civil servants The Civil Services were introduced in India during the British rule therefore; their laws and regulations were also applied in India as per the needs of the country. After the independence of India, the civil services were provided Constitutional Status. The laws of England still have a great influence on Indian laws. The doctrine of Pleasure is one of these concepts which have been introduced in India from the British rule. Under this doctrine, the civil servants were regarded as servants of the crown and these civil servants served at their pleasure.

Meaning of Doctrine of Pleasure As mentioned before, this doctrine originated in England. In England, the Crown is regarded as the Executive head and the civil services are part of the Executive. The doctrine of Pleasure means that the Crown has the power to terminate the services of a civil servant at any time they want without giving any notice of termination to the servant. Thus the civil servants work at the pleasure of the Crown which can remove them at any time. When the civil servants are removed from their service, they do not have the right to sue the Crown for wrongful termination and they also cannot ask for damages undergone due to wrongful termination. This doctrine is based on the concept of public policy and whenever the Crown feels that a civil servant should be removed from his office because keeping him will be against public policy, the Crown can remove such servant.,

Position of Doctrine of Pleasure in India The doctrine of pleasure is also followed in India. 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. While this doctrine has been adopted in India it has not been blindly copied in the same manner as it is followed in England and there are some modifications which exist in India’s adoption of this doctrine from that of England. In India, Article 310 of the Indian Constitution embodies the provision for this doctrine. According to Article 310, except for the provisions provided by the Constitution, a civil servant of the Union works at the pleasure of the President and a civil servant under a State works at the pleasure of the Governor of that State. This implies that the operation of the Doctrine of Pleasure can be limited by constitutional provisions. Under the constitution. Following are excluded from the operation of this doctrine: 1. 2.

Judges of the Supreme Court; Judges of the High Court’s;

3.

Chief Election Commissioner; and

4.

Comptroller and Auditor General of India.

Thus, this doctrine is not absolute and is subject to Constitutional provisions . The civil servants can also be excluded from the operation of this doctrine because they have been provided with some protection under Article 311 and thus this doctrine’s application can be limited to civil servants as well.

Constitutional Safeguards for Civil Servants The Civil servants have not only been provided with Constitutional status under Article 308 but they have also been granted some protection under Article 311. By providing the civil servants with these protections, the confidence of the public in the civil services is maintained and the civil servants are also provided with the assurance that they can honestly carry out their duties without any fear of unjust or unlawful removal from their office under this doctrine. The following are the protections available to a civil servant under Article 311 of the Constitution:

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. Illustration: A, a civil servant who was appointed by C. B who is a subordinate of C, removes A from his office. Here such a removal will not be valid because B did not have the same authority or rank as C (the appointing authority). But if D, who has the same authority as C, removes A then such removal will be valid under Clause 1 of Article 311.

The reasonable opportunity of being heard Under Clause 2 of Article 311, the civil servants are provided with the right of being heard. This right embodies the principle of natural justice by giving a chance to the civil servant to prove his innocence. As per this Clause, to remove a civil servant from his post the following steps should be followed: 1.

Holding an enquiry in the allegations made against the civil servant. This enquiry is known as departmental enquiry;

2.

Providing the accused civil servant with the information about what charges have been levelled against him;

3.

Providing such a civil servant with a reasonable chance of being heard in the case.

This protection is very important because under his Article the Civil servant is provided with a reasonable opportunity of being heard. While the clause mentions ‘reasonable opportunity’ it does not define its meaning. When no clarification is provided for the meaning of reasonable opportunity, it appears to be ambiguous protection because there is no method to determine whether a civil servant was provided with reasonable opportunity or not. Thus, the meaning of reasonable opportunity has been taken in the same meaning as the principles of natural justice are understood. Thus, a reasonable opportunity means that the accused is given a chance of presenting his side of the case in order to disprove the charges leveled against him and he should also have the chance to: 1.

Present his arguments before the body which is conducting the enquiry;

2.

Giving his statements as a witness;

3.

Listen to the statements of witnesses against him;

4.

Cross-examine the witnesses.

When such an opportunity is provided to a civil servant, the requirement of reasonable opportunity being afforded to him will be fulfilled. Illustration: A is a civil servant and corruption charges have been leveled against him. A departmental enquiry is made to look into this matter and find out whether A is guilty or not. But A is not informed about any of the charges which are made against him and he has not been given a single opportunity to argue against these allegations and present evidence. The enquiry concludes that A is guilty without listening to A and as a result A is removed from his post. Such removal can be challenged by A in the Court and it will be held that the departmental enquiry was not valid and the removal of A cannot be deemed to be valid as it has violated the provisions of Article 311 Clause 2.

Right to these protections While these protections are provided to the people working for the Government, all the Government servants cannot avail of these protections. Thus, only certain people have the right to be protected under the provisions of Article 311. The following people have the right to be protected under the provisions of Article 311 : The members of: 1.

Civil service of the Union;

2.

All India Service; and

3.

Civil service of any State.

4.

People who hold a civil post under the Union or any State.

By the words civil services it has been made clear that the members of the Armed Forces are not part of the servants who are covered under the provisions in the Constitution, related to Civil Servants. In the case of Purshottam Lal Dhingra v. Union of India, it was held that the protection provided under Article 311 to the civil servants includes permanently employed civil servants as well as temporarily employed civil servants.

Exceptions to the protection While protection has been provided under Article 311 of the Constitution to ensure that their interests are protected, these protections are also subject to some exceptions. When these exceptions arise in a case, the protection cannot be claimed by the concerned civil servant. The following are the exceptions:  If the civil servant has been found guilty of a criminal offence, in such cases the protection under Article 311 cannot be availed for him and in such cases, he can be removed for misconduct without getting a chance of being heard. Illustration: A is a civil servant who has been convicted by a court for a crime under IPC. In such case when the enquiry is made for charges against him, he may not be provided with the chance of being heard and he can be removed and such a removal will not amount to a violation of article 311. Also, he may also be removed without having an enquiry and it will also be a valid removal.  In cases where the disciplinary charged with the task of looking into the allegations made against the civil servant, thinks that it is not practicable to hold an enquiry for the same, he has the power to not to hold such an enquiry. In the case of Union of India and Another vs. Tulsiram Patel and Others, explained the scope of this exception. The Court observed that for determining the impracticability of holding the enquiry the point of view of a reasonable man has to be used. If a reasonable man who is in this situation thinks that holding such an enquiry is not practicable, then not holding such enquiry will not amount to a violation of Article 311.  The last exception to the protection under Article 311 is the reasons of security of the State. This right is given to the President and the Governor as the case may be and whenever the President or the Governor is satisfied that it is not in the interest of the security of State to hold an enquiry, such an enquiry can be stopped from taking place. Here, actual threat to the security is not the focus of this exception but only the satisfaction of the President or Governor about the risk of threat to security is enough to invoke this exception. This exception appears to be a loophole against the protection to civil servants because satisfaction is a subjective concept and therefore what a person may consider being a threat might not be regarded to be the same by another person. Thus, to remove this problem, the Government is required to inform the Court about the nature of the activity of the civil servant which is the basis for President’s or Governor’s satisfaction. If the Court finds the reason to be relevant, then the exception will be allowed but if the reason is not satisfactory or the government fails to disclose this information to the court, the validity of the removal of the civil servant will not be upheld by the court and this exception will not be applied in such a case.

Role of Indian Judiciary on the Doctrine of Pleasure Judiciary plays a very important role in India by performing its function as the interpreter of laws. While the doctrine of pleasure has been adopted from the English Law, Judiciary has through various cases, provided its judgments regarding the applicability of this doctrine in India. In the case of State of Bihar v. Abdul Majid, the rule regarding the maintainability of a claim by the civil servant regarding arrears for salary was decided by the Supreme Court. In England, the rule was that a servant could not sue the Crown for arrears of salary. The same was argued in this case. A sub-inspector had been removed from his service on the ground of cowardice and was later re-hired. He filed a suit for recovering the arrears of his salary but the Government contended that he cannot do so under the rule followed in the doctrine of pleasure. The Supreme Court held that this rule would not apply in India and thus the sub-inspector had the right to claim the arrears of his salary. Similarly, the Court also made a judgment regarding another important provision of the doctrine of pleasure. In the case of Union of India v. Balbir Singh, it was held that the Court has the power to examine the satisfaction of the President or the Governor as the case may be. If the Court finds that the satisfaction is based on such grounds which have no relation to the security of the State then, the Court can hold such a satisfaction to be based on irrelevant and extraneous grounds and the dismissal of a civil servant can be held invalid.

Conclusion While the doctrine of pleasure has been adopted from the British legal system, it has been modified to suit Indian context as per prevailing social structure in India. The judiciary has played a key role in balancing the arbitrary aspects of this doctrine by their power of judicial review. While England has a Monarch as the Executive head, India elects its Executive head through elections. So, the principle ‘the King can do no wrong’ is not suitable to the Indian scenario. Despite the judicial intervention, the exceptions to the protection can still be misused. Therefore instead of reviewing each and every instance of arbitrariness, it would be better if certain guidelines are provided which have to be followed while availing these exceptions. If these guidelines are not followed the dismissal can be held invalid which will also provide speedy redressal to the aggrieved party....