Published : February 23, 2014 | Author : Srividya Sastry
Category : Constitutional Law | Total Views : 280 | Rating : | |||||
The doctrine of Pleasure is a common law rule. This doctrine has its origin in England. The Doctrine of Pleasure is a special prerogative of the British Crown.[1] In England, a servant of the Crown holds office during the pleasure of the Crown and he can be dismissed from the service of Crown at pleasure. The tenure of office of a civil servant can be terminated at any time without assigning any cause. Even if there exists any special contract between the Crown and the civil servant concerned, the Crown is not bound by it. The civil servant is liable to be dismissed without notice and they cannot claim damages for wrongful dismissal or immature termination of service.[2]The Crown is not bound by the any special contract between it and a civil servant, for 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 is that the crown should not be bound to continue in public service any person whose conduct is not satisfactory.[3]This common law Doctrine hence in England is based on Public Policy. The public policy is that a public servant whose continuance in office is not or is against the public interest must be relieved of it.[4]
Doctrine Of Pleasure In India: Doctrine of Pleasure under the Indian Constitution is also based on the same policy considerations as it existed under the common law in England. Though doctrine of pleasure is accepted in India as it has developed in England, it has not been completely accepted in India. This Doctrine of Pleasure is embodied in India in Article 310(1).It reads as follows: Tenure of office of persons serving the Union or a State :[5] (1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. This is the general rule which operates “except as expressly provided by the Constitution.” This means that the Doctrine is subject to constitutional limitations. Therefore, when there is a specific provision in the Constitution giving to servant tenure different from that provided in Article 310, then that servant would be excluded from the operation of the pleasure doctrine. The following are expressly excluded by the Constitution from the rule of Pleasure. They are: 1. Supreme Court Judges Article 124, 2. Auditor General (Article 148) 3. High Court Judges (Article 217, 218) 4. A member of Public Service Commission (Article 317) 5. The Chief Election Commissioner. Though doctrine of pleasure is accepted in India as it has developed in England, it has not been completely accepted in India. It is subject to the provisions of Article 311 which provides for procedural safeguards for civil servants. Article 311 of the Constitution of India states that: (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or 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: 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 the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply — (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; or (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. (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 dismiss or remove such person or to reduce him in rank shall be final."[6] Therefore, services of any civil servants cannot be terminated at pleasure unless the mandatory provisions of Article 311 have been observed. This doctrine of pleasure is further restricted by the general law of the land which empowers any civil servant to file suit in a court of law for enforcing any condition of his service and for claiming arrears of pay. The power to dismiss at pleasure any civil servant is not a personal right of the President or the Governor, as the case may be. It is an executive power which is to be exercised at the advice of Council of Ministers. Doctrine of Pleasure as contained in Article 310, being a constitutional provision cannot be abrogated by any legislative or executive law; therefore Article 309 is to be read subject to Article 310.[7] Restrictions On The Doctrine Of Pleasure: Under Indian Constitution several restrictions has been placed on Doctrine of Pleasure. They are as follows: (i) The service contract entered between the civil servant and government may be enforced. (ii) The fundamental rights guaranteed under the constitution are restrictions on the pleasure doctrine and therefore this doctrine cannot be resorted too freely and unfairly, Articles 14, 15 and 16 of the Constitution imposed limitations on free exercise of Pleasure Doctrine. Article 14 embodies the principle of reasonableness the principle of reasonableness is anti-thesis of arbitrariness. In this way, Article 14 prohibits arbitrary exercise of power under pleasure doctrine. In addition to article 14 of the constitution Article 15 also restricts arbitrary exercise of power in matters of services. Article 15 prohibits termination of service on grounds of religion, race, caste, sex or place of birth or any of them. Another limitation is under Article 16(1) which obligates equal treatment and bars arbitrary discrimination. (iii) Further the doctrine of pleasure is subject to many more limitations and a number of posts have been kept outside the scope of pleasure doctrine. Under the constitution the tenure of the Judges of the High Courts and Supreme court, of the comptroller and Auditor-General of India, of the Chief Election Commissioner and the Chairman and Members of Public service commission is not at the pleasure of the Government.[8] Thus, the general principle relating to civil services has been laid down under Article 310 of the Constitution to the effect that government servants hold office during the pleasure of the government and Article 311 imposes restrictions on the privilege of dismissal at the pleasure in the form of safeguards. Persons Entitled To Safeguard:Constitutional safeguards provided under Article 311 are not available to all the government servants. The text of the Article refers to members of civil services of the Union or all- India service of a State or hold a civil post under the Union or a State.[9] The constitution bench of the Supreme Court in S.L. Agarwal (Dr.) v. General Manager[10], Hindustan Steel Limited, generally considered as to who are the persons entitled to the protection of Article 311. The Court identified the following persons: (1) Persons who are members of: (a) A civil service of the union; or (b) An All India Service; or (c) A civil service of a State; or (2) Hold a civil post under the Union or State. Difficulties have always arisen in relation to the meaning and scope of ‘Civil Post’. Though this expression has been interpreted in many ways there is no debate that Article 311(1) deals with persons employed in the civil side of administration in contradistinction to defence. Supreme Court in State of Assam v. Kanak Chandra Dutta laid down that civil post in Clause (1) means a post not connected with the defence services and outside the regular civil services.[11] Further, in Parshottam Lal Dhingra v. Union of India[12], the Supreme Court of India has held that under Article 311 the safeguards are applicable to both permanent and temporary servants. Constitutional Safeguards Available To The Civil Servants: There are two constitutional safeguards provided under Article 311 of the Indian Constitution. They are as follows: 1. Clause (1) of Article 311 addresses itself to the authority who can impose any of the punishments of dismissal or removal. According to this, no order of dismissal or removal can be made by an authority subordinate to the appointing authority. But if the removing authority is of the same or co-ordinate rank or grade as the appointing authority then, dismissal or removal by such authority is valid.[13] 2. Clause (2) of Article 311 provides the procedural essentials to be followed before dismissing, removing or reducing in rank.Article 311(2) mandates the compliance of the Principles of Natural Justice. A civil servant cannot be punished without: (a) holding an enquiry; and (b) informing the civil servant about the charges against him; and (c) giving him a reasonable opportunity of being heard in respect of those charges. The enquiry contemplated by Article 311(2) is generally known as departmental enquiry and the Constitutional requirements for a proper enquiry within the meaning of Article 311(2) are two-fold: (a) The civil servant must be informed of the charges against him; and The civil servant against whom a accusation of misconduct is made must be ‘Formally’ informed i.e to say those acts or omissions of the public servant which are termed as Misconduct under the Service Rules usually referred to as Conduct rules. But, acts or conduct not covered by such may still amount to misconduct. It is fundamental and essence of the concepts of fair play and justice that a person should know why he is being charged.[14] (b) He must be afforded a reasonable opportunity of being heard in respect of those charges.[15] Neither the General clauses Act nor the Constitution defines “reasonable opportunity”. Reasonable opportunity here too refers to the rules according to Principles of Natural Justice. Broadly, it implies an opportunity to deny the guilt alleged in order to establish innocence, to defend by examining himself and his witnesses.[16] Exceptions To The Safeguards Provided Under Article 311: The provision to Article 311 (2) provides for certain circumstances in which the procedure envisaged in the substantive part of the clause need not be followed. These are as follows: a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his connection on 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; or 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.[17] These provisions have been explained below in detail: (a) Conviction on Criminal Charge: The Supreme Court has emphasised under Art. 311(2)(a), the disciplinary authority is to regard the conviction of the concerned civil servant as 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 to take into consideration the judgement of the criminal court, the entire conduct of the civil servant, the gravity of the offense, the impact of the offence on the administration, whether the offence was of a technical or trivial nature, and extenuating circumstances if any. This the Disciplinary authority has to do ex-parte and without giving a hearing to the concerned civil servant.[18] The power has to be exercised by the authority “fairly, justly and reasonably”. Hearing need not be given while imposing the penalty after conviction on a criminal charge, but the right to impose a penalty the duty to act justly.[19]For instance, a government servant convicted for parking in the no-parking area cannot be dismissed. (b) Impracticability: It is important to know that this clause applies only when the conduct of government servant is such as he deserves the punishmen of dismissal, removal or reduction in rank. Before denying government servant his constitutional right to an inquiry, the paramount consideration is whether the conduct of the government is such as justifies the penalty of dismissal, removal or reduction in rank. In Tulsi ram Patel case[20]the Supreme court explaining the scope of the clause 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 cl. (b). What is requisite is that holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.” The Supreme Court further held that the reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary as he is the best judge of the situation.[21] (c) Reasons of Security: Under (c) the satisfaction has to be that of the President or the Governor as the case may be. The satisfaction must be with respect to the expediency or inexpediency of holding an inquiry in the interest of the security of the State. Security of State being of paramount importance all other interests are subordinate to it, “Security of State may comprise a situation of disobedience and insubordination on the part of members of the police force”. In Tulsi ram Patel case[22] the Supreme Court has clarified that the question is not whether the security of the State has been affected or not, for the expression cl(c) is “ in the interest of the security of State”. The interest of security of State may be affected by actual act, or even the likelihood of such acts taking place. So the Court has observed “ What is required under cl.(c) is not the satisfaction of the President or the Governor, that interest of the security of the State is or will be affected but his satisfaction in the interest of security of State, it is not expedient to hold an inquiry as contemplated by Article 311(2)”. The government is under obligation to disclose to the court the nature of the activities of the employee on the basis of which the satisfaction of the President or the Governor was arrived at for the purpose of passing an order under Article 311(2)(c). In the absence of any indication about the activities, it would not be possible for the Court to determine whether the satisfaction was arrived at on the basis of relevant considerations. The government is under obligation to place relevant material on the basis of which the satisfaction was arrived at subject to a claim of privilege under Sections 123 and 124 of the Evidence Act, 1872. Judicial Perspective on Doctrine of Pleasure In India The Judicial perspective on Doctrine of Pleasure can be discussed in the following cases: As we all know that rule emanating from the pleasure doctrine is that no servant of the Crown can maintain an action against the Crown for any arrears of salary. The assumption underlying this rule is that the only claim of the civil servant is on the bounty of the Crown and not for a contractual debt. The Supreme Court of India in State of Bihar v. Abdul Majid[23] refused to follow this rule of the Doctrine of pleasure. In this case sub-inspector of police was dismissed from service on the ground of cowardice, was later reinstated in service. But the government contested his claim for arrears of salary for the period of his dismissal. The Supreme Court in this case upheld his claim arrears of salary on the ground of contract or quantum muruit i.e for the value of the service rendered. Similarly the Supreme Court the reiterated the above ruling in Om Prakash v. State of Uttar Pradesh[24] where it was held that when dismissal of a civil servant was found to be unlawful, he was entitled to get his salary from the date of dismissal to the date when his dismissal was declared unlawful. Further in State of Maharashtra v. Joshi[25], it was held that a claim of arrears of salary was held to be based on contract. Further the judiciary has also acted as checks and balances on the arbitrary exercise of the power of conferred by the doctrine on the president and the Governor. The Supreme Court in Jaswant Singh v. State of Punjab[26] held that in spite of finality of Article 311(3) the “finality can certainly be tested in the court of law and interfered with if the action is found to be arbitrary or malafide or motivated by extraneous considerations or merely a ruse to dispense with the inquiry.
In Union of India v. Balbir Singh[27], the Supreme Court held that the Court can examine the circumstances on which the satisfaction of the president or Governor. If the Court finds that the circumstances have no bearing whatsoever on the security of State, the Court can hold that satisfaction of the president or the Governor which is required for passing such an order has been vitiated by wholly extraneous or irrelevant considerations.
Conclusion: Thus it can be said that the Constitution makers then at that time had known about the discrepancies like corruption to creep into the civil services, so in order not to grant immunity from summary dismissal to dishonest or corrupt government servants so that they continue in service for months together “at the public expense and to Public detriment”. Also at the same time the judiciary with its limited judicial review and departmental appeal has ensured that the power to dismiss has not been misused by the authority. With the lot many cases coming into light in relation to corruption among the government officials and the linking of various government officials with anti-social elements the Article 310 and 311 of the Indian Constitution envisaged in the Part XIV act as a check and does not allow the government officials to make mockery of Law. ********************* Bibliography: Statutes: The Constitution of India, 1949 * Books: # M. P. Jain, Indian Constitutional Law (LexisNexis Butterworths Wadhwa Nagpur, 6th ed. 2012) # I. P. Massey, Administrative Law (Eastern Book Company, 8th ed. 2012) # V. N. Shukla, Constitution of India (Eastern Book Company, 11th ed. 2011) # Dr. J. J. Upadhyaya, Administrative law (Central Law Agency Publication) # Samaraditya Pal, Law Relating to Public Service (LexisNexis Butterworths Wadhwa Nagpur, 3th ed. 2011) # Madhusudan Saharay, Adoption of Foreign Doctrines by the Supreme Court (Eastern Law House, ed., 2011) [1]Madhusudan Saharay, Adoption of Foreign Doctrines by the Supreme Court 308 (Eastern Law House, ed., 2011) [2] http://www.shareyouressays.com/115275/short-speech-on-the-doctrine-of-pleasure. 31 Aug 2013 [3] M.P Jain, Indian Constitutional Law, 2052 (LexisNexis Butterworths Wadhwa Nagpur, 6th ed., 2010) [4] V N Shukla, Constitution of India 870 (Eastern Book Company, 11th ed., 2011) [5] Art. 310, Constitution of India [6] Art. 311, Constitution of India [7] I P Massey, Administrative Law 581 (8th ed., 2012) [8] Dr. J. J. R. Upadhyaya, Administrative Law, 476 ( Central Law Agency Publications, 8th ed., 2012) [9] AIR 1970 SC 36 [10]Samaraditya Pal, Law relating to public service 823(LexisNexis Butterworths wadhwa Nagpur, 3rd ed., 2011) [11]Samaraditya Pal, supra note 11 at 830 [12] AIR 1958 SC 36 [13] Mahesh v. Uttar Pradesh AIR 1955 SC 70 [14] Surath Chandra Chakraborty v. State of West Bengal (1970) 3 SCC 548 [15]Samaraditya Pal, supra note 11 at 830 [16] Krishna lal vij pg: 830 [17] Article 311, Constitution of India [18]Jain supra note 8 at 2092 [19] Shankar Dass v. Union of India, AIR 1985 772 [20] Union of India v. Tulsi ram Patel, AIR 1985 SC 1416 [21] Kuldip Singh v. State of Punjab, AIR 1987 SC 79 [22] AIR 1985 SC 1416 [23] AIR 1954 SC 245 [24] AIR 1955 SC 600 [25] AIR 1969 SC 1302 [26] AIR 1991 SC 385 [27] AIR 1998 SC 2043 | |||||
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