Our important services in the field of Labour and Service Laws:
* Advice and documentation of all kinds related to labour laws
* Compliance services and advice for all kinds of labour laws
* Legal documentation of all kinds with all kinds of forms of labour laws with facilities of online legal forms and online legal formats of labour laws, employment formats etc
* Drafting and vetting of all kinds of employment contracts, settlements, appointment letters etc
* Launching and defending all kinds of labour cases including Industrial disputes, labour disputes, strikes, lock outs, closures, retrenchment, lay off matters
* Challenging of awards passed by the labour courts , industrial tribunals etc
* Advising on all aspects of government service laws including advice on promotions, suspensions, transfers etc
* Launching matters pertaining to all kinds of service laws at CAT, all kinds of tribunals etc
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* Service law advices pertaining to private employment, government employment, CCA and CCS cases, disciplinary cases, misconducts, termination, transfer, removal etc. Labour law matters, ESI , EPF advices, Shops and Establishment advices and registration services etc
* Law firm in Delhi providing all legal services in the fields of labour and service laws
* Service law litigation:- We provide all kinds of litigation services pertaining to service law litigation before courts, forums, tribunals through our highly trained attorneys for best results. Services related to filing and defending of cases before High Courts, Central Administrative Tribunal
* CCA & CCS Matters: Legal services pertaining to CCA and CCS matters which may by disputes relating to promotion, suspension, transfer, supersession etc
* Labour and industrial law compliances: All services pertaining to compliance of the labour laws, maintenance of records, compliance of the Minimum Wages Act, Payment of Bonus Act, Gratuity Act, Welfare Act, Factories Act and all other acts in the fields of labour laws
* Labour disputes: Services pertaining to handling of all kinds of labour disputes which may include industrial disputes, LCA, retrenchment, suspension, lay off, lock out, closure, strike etc
* ESI, EPF compliances: Services for compliance of the ESI and EPF Acts for filing of returns, filing and depositing of contributions, enrolment under the schemes , getting the employer code for ESI and EPF, getting the ESI and EPF cards for the employees, getting the sub code added, getting the exemption under the ESI and EPF Acts for the establishments. Filing of appeals, getting the inspection and assessment of the establishment conducted by the authorities concerned for the proper determination of the applicability of the laws
A BRIEF OUTLINE OF THE SERVICE AND LABOUR LAWS IN INDIA
Service and labour matters are an important field of practice of law in India. The categories of service laws can be basically divided into two broad categories: Labour and Industrial laws and service laws including Government service laws.
The attorneys at legalhelplineindia are well versed with the various aspects of the above said fields of law and provide accurate as well as appropriate legal advice on all these aspects of laws.
We expertise in compliance of various Indian labour laws and Indian Industrial laws in India at all levels. We also provide all kinds of registration services related to compliance of the various labour and industrial laws in India. The various important fields of Industrial and Labour laws as dealt by our attorneys are mainly labour disputes, industrial disputes, retrenchments, closures, lockouts, lay-off, strikes, termination, dismissal, removal ,suspension, domestic enquiries, factories registration, compliance of Factories Act.
Documentation related to compliance of various labour laws, Minimum Wages Act, Payment of Wages Act, Shops and Establishment Act, Bonus Act, Standing Orders Act, Employers State Insurance (ESI) Act, Employees Provident Fund (EPF) Act.
Another important field of legal services in Labour and Industrial laws is drafting and vetting of labour and employment agreements , settlements. We expertise in drafting and vetting of all kinds of Indian employment forms, formats, contracts, agreements, settlements etc. Since the services related to the drafting and vetting of such employment agreements is of foremost importance we have an inhouse team to take up such tasks and provide legal advice on such matters in close confidence with the clients.
SERVICE LAWS
Matters pertaining to Government employment, Central government employees, State government employees, Local Self government employees, appointments, non- appointments, Public Sector Employees, Autonomous Body Employees, Central Administrative Tribunal(CAT) matters, Transfers, Promotions, Suspension, Domestic Inquiries. Vigilance cases, Anti Corruption cases, Disproportionate Asset cases, Prevention of Corruption Cases. Various matters related to administration, Governments rules regulations, Government guidelines ,administrative guidelines, interpretation of government rules, regulations, statutes etc. with regard to government employment. Challenge to the orders of the Local government, State government, Central Government. Filing of Writ Petitions. Matters pertaining to Constitutional law, interpretation of the Constitution, various Acts, Statutes, Challenge to various Acts.
SERVICES UNDER THE UNION AND THE STATES
Part XIV of our Constitution deals with certain matters relating to the services under the Union and the State Governments. The provisions of this Part are not applicable to the State of Jammu and Kashmir. Further the expression ‘State’ for purposes of this part has a much restricted meaning as compared to the expression ‘State’ as defined in Article 12 for purposes of part III of the Constitution guaranteeing various fundamental rights. Accordingly the provisions of this part would not apply to services and posts held under local bodies such as municipalities and panchayats etc. The Supreme Court in Sukhdeo Singh v. Bhagatram, has held that although statutory corporations such as the Life Insurance Corporation of India (L.I.C.) the Oil and Natural Gas Commission (O.N.G.C.) and the Industrial Finance Corporation are ‘State’ within the meaning of Article 12 of the Constitution, yet the employees of such bodies cannot claim protection of Article 311, which appearing in Part XIV of the Constitution affords two important safeguards to civil servants whether working under Central or State Government. Again it has been held that provisions of this part would not be attracted to services under Hindustan Steel Ltd., a company incorporated under the Companies Act, 1956. Employees of Institutions such as the Council of Scientific and Industrial Research (C.S.I.R.) which are sponsored and controlled by the Central Government, but are registered under the Societies Registration Act cannot get protection of Article 311. Likewise the provisions of this Part would not apply to services held under universities because they are autonomous bodies established by law.
Article 308 is interpretation clause.
Article 309 provides for framing of service rules regulating recruitment, and conditions of services of Government servants. These rules may be framed by appropriate Legislature and as long as they are not legislatively framed, the President in case of the Union and the Governor in the case of State, have been empowered to frame these rules, subject to the condition that if rules framed by the executive come in conflict with those framed by the Legislature, the latter shall prevail. Further the rules, whether framed legislatively or by the executive, should not be in violation of any of the provisions of this Constitution. Thus, if service rules framed under Article 309 are in conflict with Articles 310, 311, 316, 320, etc., they shall be unconstitutional. In Moti Ram Deka v. North Eastern Frontier Rly., Rules 148(3) and 149(3) of the Railway Establishment Code (which provided for termination of the service of a permanent railway employee by giving him notice of a state period without assigning any reason for termination) were struck down by the Supreme Court as unconstitutional as they were found in conflict with Article 311(2).
Article 310 incorporates in our Constitution the English ‘doctrine of pleasure’ according to which every Government servant in England holds office during the pleasure of the Crown. There is in English law no such thing as ‘contract of service’ between the Crown and its servants. The Government servant on being appointed to a particular office acquires a status and has no contractual relationship with the Crown. The important implication of this doctrine in the English law is that there is no security of tenure and that the Crown may at any time terminate the services of any person serving under it without assigning any reason whatsoever. Since there is no contract of service with the Crown under English law, no suit can be filed in any court for wrongful dismissal or for claiming arrears of salary. What is of greater consequence is, that even the Crown, under the English Constitution, is not allowed the liberty to contract away his right to terminate the service at pleasure. This is so because such a contract in English law is treated as being opposed to public policy and, therefore, without any effect in law.
While incorporating this important English law doctrine in our Constitution great care and caution has been taken to mitigate its rigour in English law. Consequently Article 310 embodies the English doctrine with certain important limitations.
Firstly it may be noted that Article 310(1) opens with the all important clause, “Except as expressly provided by this Constitution” and then lay down, “every person who is a member of a defence service or of a civil service of the Union ……, holds office during the pleasure of the President and every person who is a member of a civil service of State……. Holds office during the pleasure of the Governor of the State.”
The implication of the words (“Except as expressly provided by this Constitution”) is that judges of the Supreme Court and the High Courts, the Comptroller and Auditor-General of India, Chairman and members of the Union and State Public Service Commissions and the Chief Election Commissioner for whom the Constitution lays down a special procedure for removal, do not hold office during the pleasure of the President. Although initial appointment of these officers is made by the President, but once appointed they continue in office during good behaviour and not at the pleasure of the President. These officers thus enjoy a great security of tenure.
Secondly, it has been held that Article 310 is subject to Article 311. Consequently, while exercising the pleasure under Article 310(1), the President or the Governor, as the case may be, cannot overlook the provisions of Article 311. If a termination of service is effected by the President or the Governor in violation of Article 311, it shall be struck down as unconstitutional. It may thus be noted that whereas under English law no suit for wrongful dismissal can be filed, in India such suit would be competent and maintainable.
Thirdly, Article 310(1) has been held to be subject to Article 372 which provides for continuation of all existing laws. The Code of Civil Procedure is one such law which continues by virtue of Article 372. Under C.P.C. it is possible for a public servant to enforce his claim against the Government. Accordingly the Supreme Court, in State of Bihar v. Abdul Mazid, held that in India a public servant can file a suit claiming arreas of salary although such suit would not be maintainable in England.
Fourthly, and lastly, it may be noted, that clause (2) of Article 310 lays down an exception to the general rule enunciated in clause (1) of Article 310. Under clause (2), it is possible for the Government to enter into contracts with new entrants having exceptional and special qualifications, wherein the rule of dismissal at pleasure may be qualified, limited or even done away with. In such cases Government may provide for payment of compensation in the event of premature abolition of office or where termination takes place for reasons not connected with any misconduct on the part of such person. Under English law the Crown in no circumstances has the power by contract to give up his right of termination at pleasure. The above limitations would reveal that the pernicious and baneful consequences of the doctrine of pleasure under English law have to a great extent been eliminated while incorporating it in our Constitution in Article 310.
Article 312 provides for establishment of All-India Services common to the Union and the States. Such services may be created by law. The Indian Administrative Service (I.A.S.), the Indian Police Service (I.P.S.). The Indian Foreign Service (I.F.S.) etc. are examples of such All-India Services.
Article 312-A empowers the Parliament by law to vary or revoke the conditions of service of officers of certain services. This Article introduced by the Constitution (28th Amendment) Act, 1972, has particular reference to the I.C.S. officers. Article 314 formerly afforded certain privileges to the I.C.S. officers. This has now been repealed by the 28th Amendment to the Constitution and with a view to confer power upon Parliament to do certain things in respect of such officers, Article 312-A has been inserted by the same amendment.
Article 313 makes certain transitory provisions and needs no comments.
Article 314 now stands repealed by the Constitution (28th Amendment) Act, 1972.
Articles 315 to 323 deal with the constitution, powers and working of Union and State Public Service Commission.
Having made a brief survey of the various provisions of Part XAV of the Constitution we now turn to Article 311 which provides two important safeguards of civil servants.
Constitutional protections to the Civil Servants
Article 311 of the Constitution gives certain protection to civil servants of the Government. In this connection two important questions arise which are :
(1) Who can claim protection of Article 311.
(2) What is the ambit or scope of the protection afforded by Article 311.
Who can claim protection of Article 311
(i) The protection is available only to civil servants.
The marginal heading of Article 311 clearly provides that the provisions of this article would apply to persons employed in civil capacity under the Union or State Governments. Hence the protection afforded by Article 311 is not available to members of the Defence Forces.
(ii) The protection is available to all classes of Government servants.
There was for some time a controversy as to whether the protection afforded by Article 311 was available to all persons or could it be claimed only by permanent Government servants. Various High Courts expressed conflicting views on this point. This controversy was settled by the Supreme Court decision in P.L. Dhingra v. Union of India, wherein the Court unequivocally declared that the protection of Article 311 is available to all classes of Government servants whether permanent, quasi-permanent, temporary, probationer or officiating.
Protection of the article has been held to be available to the staff artists of the All India Radio. The protection which is afforded by an enquiry as required by Article 311(2) has been held to be not available to permanent civilians in defence service getting salary out of the estimates of the Ministry of Defence.
The ambit or scope of protection afforded by Article 311
Article 311 affords two important safeguards to persons employed in civil capacity under the Union or State Governments.
The first safeguard is provided in clause (1) of Article 311 according to which no person shall be dismissed or removed by an authority subordinate to that by which he was appointed. Thus where appointment of a person as Sub-Inspector of Police is made by the I.G. Police, his dismissal by the D.I.G. Police would be violative of Article 311(1) and hence unconstitutional. In one case the person was appointed by the Secretary to the Government, but he was dismissed from service by the order of the Deputy Secretary to the Government, but he was dismissed from service by the order of the Deputy Secretary to the Government. It was held that the dismissal order violated Article 311 and consequently it was set aside. Where an employee was removed by an officer who was below the rank of the appointing authority, the Supreme Court held that the violation of Article 311(1) could not be rectified by delegating to the officer in question the power to make appointments to that post. If dismissal or removal order is passed by a co-operative or superior authority, it would be perfectly valid and constitutional.
The second safeguard afforded to civil servants is provided in clause (2) of Article 311, according to which no person can be dismissed, removed or reduced in rank unless an enquiry is held by the Government in which he is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. An important question that arises at this stage is whether the inquiry contemplated by Article 311(2) is obligatory upon the Government in all cases where termination of service or reversion from rank takes place? This important question came before the Supreme Court in P.L. Dhingra v. Union of India. The facts of the case were as follows :
(1) Dhingra joined Railway service in 1924 as Signaller (Telegraphist).
(2) Through gradual promotions he was appointed in 1950 as Chief Controller in substantive capacity in Class III Railway Service.
(3) In 1951 he was made to officiate on a post in Class II Railway service.
(4) In 1953 adverse remarks were entered in his confidential report. The adverse entries were to the effect that he took hasty decisions; his office work was scrappy (i.e. without attention to details); his relations with superior officers were unhappy; he made frequent transfers of subordinate staff with a view to harass them. Above all the officer (Dhingra) all the time suffered from an air around him. Finally it was also noted that there was no improvement in his behaviour despite repeated warnings.
(5) In 1953 the General Manager, Northern Railway passed orders reverting him to his substantive post in Class III Railway Service.
(6) Dhingra challenged the validity of this order of reversion in a writ petition before the Punjab High Court. His contention was that in as much as no inquiry as provided in Article 311(2) was made in his case, the reversion order was unconstitutional and should therefore be quashed.
(7) A single Judge of the High Court of Punjab held, Article 311(2) was attracted in this case and since no inquiry was held by the Government, the reversion order was unconstitutional.
(8) On appeal by the Union (representing Railway), a Division Bench of Punjab High Court held that Article 311(2) was not attracted in this case and consequently the reversion order was perfectly valid.
(9) Against the judgement of the Division Bench of Punjab High Court, Dhingra went in appeal before the Supreme Court.
The Supreme Court held that the provisions of Article 311(2) (i.e. inquiry etc.) are not attracted in all cases of termination of service and reversion from rank and that Article 311(2) would be attracted only in those cases where the termination of service or reversion in rank has been done as and by way of punishment. This view was taken by the Supreme Court because, as pointed out by it, the words ‘Dismissal, Removal and Reduction in rank, used in Article 311(2) have a technical meaning. The element of punishment is implied in all these three words. Thus where termination of service is as and by way of punishment, then and then only it would amount to ‘dismissal’ or ‘removal’ within the meaning of Article 311(2). Similarly, where reversion from rank takes place as and by way of punishment, then and then only it would amount to ‘reduction in rank’ within the meaning of Article 311(2). It was thus made clear that Article 311(2) would be attracted only in those cases where termination of service or reversion from rank took place as and by way of punishment. As to when it can be said that a particular termination of service or reversion from rank is as an by way of punishment, the Supreme Court laid down the following two test:
(1) Where a person has a right to hold the post, mere termination of service or reversion from rank shall be presumed to be by way of punishment. A person has a right to hold the post when he is a permanent, quasi-permanent or temporarily appointed for a fixed period only.
(2) In all other case, where the person has no right to hold the post, mere termination or reversion without anything more, would not be presumed to be by way of punishment. In such cases if the person is additional visited with some evil consequences (such as casting aspersions or putting stigma upon his character etc.) only then termination or reversion shall be by way of punishment and the provisions of Article 311(2) would be attracted. In this category would come persons who are working as temporary for no fixed period or who are appointed on probation or who are working in some officiating capacity. Such persons do not have a right to hold the post and in such cases the Government has two courses open to it in the matter of termination of service or reversion from rank. The Government may pass a simple order of termination or reversion without casting any aspersion or stigma upon the character of the person. In this case since termination or reversion would not be by way of punishment, the Government is not obliged to observe the safeguard provided in Article 311(2). But if the Government instead of effecting simple termination or reversion, chooses to cast aspersions or putting stigma upon the character of the person (e.g. if the order states “your services are hereby terminated as you have proved to be dishonest or lacking in will to discharge your duties etc.) then such termination or reversion shall be by way of punishment and Article 311(2) will be attracted and if the safeguard relating to inquiry provided in Article 311(2) has not been followed, such termination or reversion shall be unconstitutional being violative of Article 311(2).
Applying the above law to the facts of Dhingra’s case the Supreme Court held that in as much as Dhingra had no right to hold the post in Class II Railway Service where he was working in an officiating capacity, and also because the reversion order passed by the General Manager, Northern Railway did not cast any aspersions or stigma upon the character of Dhingra, the order reverting Dhingra to his substance post in Class III Railway Service was not by way of punishment and therefore did not amount to ‘reduction in rank’ within the meaning of Article 311(2). Consequently, Article 311(2) was not attracted in his case and the Government was under no obligation to observe the formalities of enquiry etc., contemplated by Article 311(2). The reversion order was therefore upheld by the Supreme Court as perfectly valid and constitutional.
The Supreme Court decision in Moti Ram Deka v. Northern Eastern Frontier Railway, makes an important change in the law stated above. In Dhingra’s case, the Supreme Court had laid down that where a person has a right to hold the post (i.e. those who are permanent, quasi-permanent or temporary, i.e., appointed for fixed period), mere termination or reversion would be by way of punishment and Article 311(2) would be attracted. It was further stated that if the services of any such person (who has a right to hold the post) are terminated by reason of abolition of the post itself or in accordance with the terms of the contract or according to service rules framed under Article 309 such termination would not be by way of punishment and Article 311(2) would not be attracted. In Moti Ram Deka’s case the services of a permanent railway employees were terminated by giving due notice under Rules 148(3) and 149(3) of the Railway Establishment Code. The Government relying upon Dhingra’s case argued that inasmuch as the termination of services has been made in accordance with service rules [i.e. Rules 148(3) and 149(3) of the Railway Establishment Code], it was not by way of punishment and consequently Article 311(2) was not attracted. Overruling Dhingra on this point, the Supreme Court held that where service rules provide for termination of service of a permanent employee without any regard to a reasonable period of service having been put in by the employee, such termination of service would be by way of punishment and the safeguard provided by Article 311(2) must be observed by the Government and if the service rules do not provide for the said safeguard by the Government, they shall themselves be unconstitutional being violative of Article 311(2). Accordingly Rules 148(3) and 149(3) of the Railway Establishment Code were struck down by the Supreme Court as they violated Article 311(2). Thus service rules providing for age of retirement are valid. Again service rules providing for compulsory retirement after an employee has put in service of a reasonable period (say 25 to 30) years, are also valid. But where service rules provide for termination of the services of a permanent employee without reference to the service of a reasonable period having been put in by such employee, such service rules would be unconstitutional being violative of Article 311(2).
Where a temporary servant was thrown out of job for his being prima facie responsible for loss of official documents due to his negligence and carelessness, the Supreme Court held the discharge order to be punitive. Non-compliance with Article 311(2) vitiated the order.
The position of a probationer has been explained by the Supreme Court in Bishan Lal Gupta v. State of Haryana. If an employee has acquired a right to the post and is not merely a probationer he can claim the fuller process of hearing before he can be punished for his conduct. The position of the employee in the present case was merely that of a probationer with no right to the post. The notice of termination given to him on the basis of a prima facie case was quite innocuous in the sense that it would not amount to any stigma so as to endanger his future prospects. Some reflection which every removal inevitably carries cannot be helped. The observations in Shamsher Singh’s case show that even where the employee does not have the right to continue, care should be taken to order removal without casting any stigma so that his reputation is spared and future prospects not damaged. The Supreme Court further observed that the High Court was right in proceeding on the view that there should be some difference as to the nature or the depth of the enquiry to be held as between a probationer whose services can be terminated by a notice and a confirmed Government servant who has a right to continue in service until he reaches a certain age. It is true that neither can be punished without a formal charge or inquiry, but a less formal inquiry may be sufficient in the case of a probationer, who has no fixed or fully formed right to continue in service.
The second proviso to Article 311(2) expressly lays down that the safeguard shall not be available in the following circumstances :
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry;
(c) 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 hold such inquiry.
Conviction for Criminal offence
By virtue of the provision in clause (a) of the second proviso, a Departmental enquiry is not necessary for resorting to any action against an employee when he has been convicted of a criminal offence. The respondent was a permanent auditor in MES. He was convicted under Section 332 of the Indian Penal Code for causing head injury with an iron rod to his superior the Regional Audit Officer but was released under Section 4 of the Probation of Offenders Act. He was compulsorily retired without an inquiry. Though the Supreme Court was of the view that compulsory retirement is the same thing as a removal, the order in question was not liable to be set aside. The circumstances justified removal without inquiry.
Impracticability of holding enquiry
Clause (b) of the second proviso dispenses with the need of inquiry when the deciding authority is satisfied that it is not reasonably practicable to hold an inquiry. The reasons for which the deciding authority is so satisfied have to be recorded in writing. The reasons must be such that they can substantiate the impracticability of an inquiry. “Satisfied” means satisfied by the application of mind to reasons which cause the apprehension of impracticability, and not just a foregone conclusion. Where, for example, there was an attempt on the part of some members of the police force to stir up a mutiny like the one created by the co-members of the force in another place, and prompt action became necessary to prevent further worsening of the situation, it was held by the Supreme Court that the circumstances justified dispensing with the need for an inquiry. The court was of the view that it is not necessary for the disciplinary authority before taking any action to keep waiting for the actual turmoil. It was alleged about the constable who was dismissed in this case that he was one of the action instigators and leaders who were responsible for the creation of a serious situation which rendered the normal functioning of the police force and the normal life in the city of Bombay impossible. A person who incites others to violence is as guilty as the one who indulge in violence.
One of the points raised in this case was that a large number of cyclostyled orders were passed which showed that the situation was handled mechanically and not by the application of mind. The court said that what matters is not whether the dismissal orders were printed or cyclostyled, but the process behind the preparation of the orders. Where proceedings have been necessitated by the collective action of a large group of employees with the common object of coercing authorities and it is not possible to particularise the acts of each individual member, cyclostyled orders passed against the members of the group would not be vitiated on the ground of non-application of mind.
Dealing with still another argument the court said that if an order of dismissal merely imposes a penalty without furnishing any reasons, it would be bad and liable to be struck down. But in the present case, the court said, the impugned order of dismissal itself set out the reasons why it was not reasonably practicable to hold an inquiry and the “reasons” (which were recorded later) and communicated separately merely amplified and elaborated what had been stated in the impugned order. There was, therefore, no substance in the contention that the reasons for dispensing with an inquiry did not accompany the order.
In the earlier case of Union of India v. Tursiram Patel, the Supreme Court said that it is not total or absolute impracticability which is required. 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 reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. An inquiry should not be lightly or arbitrarily dispensed with. The decision should not go by ulterior motives or be adopted as a subterfuge for hiding the weakness of the Government case. An inquiry may be dispensed with even during the course of it if circumstances have developed making further inquiry to be reasonably impracticable. It would also not be reasonably practicable to afford to the Government servant an opportunity of hearing or further hearing when at the commencement of inquiry or pending it the employee absconds and cannot be served or will not participate in the inquiry. In such cases, the matter must proceed ex parte on the basis of the materials before the deciding authority. The proviso does not contemplate the need for even a minimal inquiry or opportunity to show cause against the proposed penalty. The court opined that it is not practicable to hold an employee under suspension until situation improves for holding an inquiry.
The reasons for not holding an inquiry must be recorded before the penalty is announced and should better be embodied in the order itself. Information as to reasons may also be given subsequently particularly where the circumstances did not permit the reasons to be immediately recorded. The employee should be made aware of the reasons. If this is not done, it would have to be done at the state of the order being questioned and the court asking for disclosure of reasons. If reasons are not disclosed even then there would be adverse presumption.
In another case, the Supreme Court held that it would not be reasonably practicable to hold an inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails. It is, therefore, not necessary that the deciding authority should wait until incidents take place in which physical injury is caused to other before dispensing with an inquiry. Dismissal orders were passed in this case without inquiry against some employees of RAW who took leading part in their all-India agitation and the same were held to be justified. In Union of India v. Tulsiram Patel, also one of the reasons for not being able to hold an inquiry was the creation of a riotous situation by the members of a force resulting in breakdown of discipline where the members of the force themselves became a security risk. They were participating in an illegal all-India strike by railway employees.
In reference to the second proviso (b) it has been held that the likelihood of destruction of evidence and of non-appearance of the members of the Mohita samity to give evidence for fear and the loss of the vital document, bill register, are irrelevant and inadequate reasons for dispensing with the inquiry. Accordingly, the removal without inquiry was set aside.
State security
Clause (e) of the 2nd proviso to Article 311 permits an inquiry to be dispensed with when 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 hold an inquiry. The Supreme Court observed in Union of India v. Tulsiram Patel, that “satisfaction” must necessarily be subjective satisfaction. Expediency involves matters of policy. Satisfaction may be arrived at as a result of secret information received by the Government about the brewing of danger to the national security. The reasons for the satisfaction have not been embodied in the order of dismissal, nor they would be the subject-matter of judicial review. In this case the petitioner belonged to M.P. Police Forces. The materials produced before the court showed that the petitioners indulged in violent demonstrations and riotous activities, attacked police stations, forced release of their colleagues who were in custody, carried on active propaganda against the Government, held secret meetings, distributed leaflets and incited the constabulary to rise against the administration. It was held that these facts left no doubt that the situation was such that prompt and urgent action was necessary and the holding of an inquiry into the conduct of each of the petitioners would not have been expedient in the interest of the security of the state.
The satisfaction of the President need not be personal satisfaction. It is enough that he feels satisfied on a consideration of the Prime Minister’s advice.
The Supreme Court has emphasised the need for holding the inquiry in a just and fair manner. The procedure at the inquiry must be consistent with the principles of natural justice.
In reference to the second proviso (c) where reasons for the satisfaction are recorded, though not communicated to the aggrieved Government servant, the order of dismissal would not be open to challenge unless it be on the ground of mala fide.
The safeguards provided by Article 311(2)
It states that where dismissal, removal or reduction in rank is resorted to by the Government in respect of an employee, an enquiry should be instituted in which the affected employee should be informed of the charges against him and he must also be afforded reasonable opportunity of defending himself against such charges at the inquiry. He should be allowed to adduce evidence and also the right to cross-examine witnesses giving evidence against him. After the inquiry if the Government finds that the charges stand proved, it may propose any one of the three punishments, i.e., either dismissal, removal or reduction in rank, and formerly the position was that when the Government proposed to impose any of these punishments, the employee had to be afforded yet another opportunity of making a representation against the proposed punishment.
But Article 311 was amended by the Constitution (42nd Amendment) Act, 1967, which deleted the provision relating to opportunity in respect of the proposed punishment. Instead the amended article now states :
Provided that where it is proposed after such inquiry to impose upon him any such penalty, such penalty may be imposed on the basis of evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation against the penalty proposed.
Reliefs under Article 311.
Where termination of service or reversion from rank takes place in violation of Article 311, the affected Government employee may file a suit in the court for declaration that the said termination or reversion order is void, and that he continues to remain in service or to hold the post, as the case may be. He may also invoke the writ jurisdiction of the High Court under Article 226. It has been held by the Supreme Court that the High Court may examine records to see whether the authority acted on some evidence. The High Court can interfere with the matter when it appears that the inquiry is based on no evidence at all. In the case of punishment without Departmental enquiry, judicial review on grounds of mala fide, non-application of mind and extraneous considerations is open.
Bonafide Abolition of Post.- It has been held by the Supreme Court that where a post has been abolished in good faith because it has become redundant and the incumbent on that post has to go for that reason, Article 311(2) is not attracted. The second proviso to Article 311(2) sets out the circumstances in which the clause would not apply. The provisions show that the article deals with dismissal, removal or reduction in rank as a measure of penalty on proof of an act of misconduct on the part of an official concerned. The provisions of Article 311(2) should be complied with before the services of a Government servant are terminated as a consequence of the abolition for bona fide reasons of the post held by him. It cannot, therefore, he said that the Act impugned in the present petitions by which village offices in the State of Tamil Nadu were abolished contravened Article 311(2) of the Constitution.
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