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OVERVIEW

Article 311 secures to the civil servants of the government two procedural safeguards in relation to their tenure of office. These safeguards are a kind of natural justice which must be followed by authorities while performing their function. These are-

  1. No removal or dismissal by an authority subordinate to the appointing authority.
  2. No removal or dismissal or reduction in rank, except after an inquiry affording reasonable opportunity of being heard.

WHO MAY CLAIM THESE SAFEGUARDS

Clause (1) of Article 311 provides that the following persons can claim the above safeguards-

  1. Members of the Civil Services of the Union
  2. Members of All- India Services
  • Member of the Civil Services of the States
  1. Person holding CIVIL POSTS under the Union or States

Hence, Members of the defence services are thus excluded from the scope of Article 311.

SAFEGUARDS PROVIDED-

  1. NO REMOVAL OR DISMISSAL BY AN AUTHORITY SUBORDINATE TO THE APPOINTING AUTHORITY {Article 311(1)}

Clause (1) of Article 311 provides that the aforesaid persons i.e. the civil servant of the Union or state, cannot be removed or dismissed by any authority subordinate to the appointing authority. An order of termination of service passed by an authority, without jurisdiction, would be non est in the eye of law. It is held to be a coram non judice.

It is the authority who actually appointed a person to the post who shall be the “appointing authority” and not the authority empowered under the rules to make such appointment.

It is to be noted that the Clause (1) of Article 311 does not say that even the departmental proceeding must be initiated by the appointing authority. 

  1. NO DISMISSAL, REMOVAL OR REDUCTION IN RANK EXCEPT AFTER INQUIRY {Article 311(2)}

The safeguard contained in Article 311 (2) is the reasonable opportunity of being heard in the cases of – a) Dismissal from, (b) Removal from service, and c) Reduction in rank. Where reasonable opportunity of hearing is denied to the delinquent, it vitiates the inquiry and renders the order of punishment invalid. It would amount to denial of natural justice. The SC in P.L. Dhingra v. Union of India, ruled that Article 311 (2) would be attracted only if dismissal, removal or reduction in rank was imposed on the civil servant by way of punishment. The Supreme Court in P.L. Dhingra v. Union of India has laid down two test for this-

  • Whether the civil servant has a right to hold the post or the rank or
  • Whether the civil servant has been visited with the evil consequences.

The following person has right to post-

  1. Person appointed substantively to permanent post.
  2. Person holding posts in a quasi-permanent capacity

Following person don’t have the right to post-

  1. Person appointed to a permanent post on probation.
  2. Person appointed to officiate in a permanent post.

The termination of service would be with penal consequences if stigma is attached to the order. It may disentitle the delinquent for future employment under the government.

REASONABLE OPPORTUNITY OF BEING HEARD

Article 311(2) secures to a civil servant a reasonable opportunity of being heard before he is dismissed or removed or reduced in rank. It has been observed that article 311 (2) incorporates the principle of natural justice that “no man can be condemned unheard” i.e. Audi alteram partem. The Supreme Court has summarized the scope of “reasonable opportunity”, envisaged as follows-

  1. The Communication of charges to the delinquent servant
  2. Opportunity to deny the charges and to establish innocence
  3. Opportunity to defend himself, by cross examining witnesses produced against him and examining other witnesses in his own support.

EXCEPTIONS TO THE RULE OF INQUIRY AND OPPORTUNITY OF BEING HEARD

  1. Where a civil servant is convicted on a criminal charge, he may be dismissed, removed without giving an opportunity of being heard.
  2. Where holding of inquiry in the opinion of the disciplinary authority is not reasonably practicable.
  3. Where the holding of inquiry is not expedient in the interest of security of States.

Moreover, opportunity of hearing at punishing stage is not essential by provision I to Article 311 (2). 

CONCLUSION

To conclude in short, it is essential that the disciplinary authority must give reasonable opportunity of hearing before dismissal, removal of the servant. Moreover, the person shall not be removed by a lower authority. If a dismissal is made without following the principle of natural justice, the order shall be void. It shall be Coram non judice.

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