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QUESTION | What are the constitutional safeguards available to a civil servant against dismissal, removal or reduction in rank of services? Are these rights also available to an employee of a public corporation? Discuss with reference to statutory provisions and case law.
Importance of this question | Asked under compulsory part in UPSC Law Optional Mains 2018
QUESTION POSTED ON | 19.09.2021
MODEL ANSWER WILL BE POSTED ON | 20.09.2021
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For UPSC Law Optional Mains Courses click here Relevant Provision | Article 311 provides two safeguards to civil servants against any arbitrary dismissal from their posts:
a) A civil servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed.
b) A civil servant cannot be dismissed or removed or reduced in ranks 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.
Scope | The above two safeguards are available only to the members of the civil services of the Centre, the all-India services, the civil services of a state or to persons holding civil posts under the Centre or a state and not to the members of defence services or persons holding military posts. However, the second safeguard (holding inquiry) is not available in the following three cases:
(a) Where a civil servant 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 civil servant or to reduce him in rank is satisfied that for some reason (to be recorded in writing), it is not reasonably practicable to hold such inquiry; or
(c) Where the president or the governor is satisfied that in the interest of the security of the state, it is not expedient to hold such inquiry.
The Constitution of India through Article 311, thus protects and safeguards the rights of only civil servants in Government service against arbitrary dismissal, removal and reduction in rank. And, employees other than civil servants are not entitled to the protection afforded by Article 311.
For instance: The employees of the government company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution # Pyare Lal Sharma v. Managing Director (1989) 3 SCC 448
Rationale | In the case of Sukhdev Singh v. Bhagat Ram (AIR 1975 SC 1331) it was observed that the public sector undertakings are constituted as separate legal entities under their relevant statutes or have been registered as companies under the Companies Act and therefore the employees of these companies are not Government servants. They are governed by rules and regulations made by the respective undertakings under the powers vesting in them under the relevant statutes/Articles of Memorandum.
In this connection, reference can also be made to the case of SL Agarwal (Dr) v. GM Hindustan Steels Ltd. (1970).
Issue: Whether Dr. Agarwal appointed as assistant surgeon in Hindustan Steel Ltd. was the holder of civil post under the union and whether Article 311 is applicable in respect of such employee.
Held: It was held that Hindustan Steel Ltd. is not a department of the government nor the servants of it are holding posts under the State. It has its independent existence and by law relating to Corporations it is distinct even from its members. In these circumstances, the appellant, who was an employee of Hindustan Steel Limited, does not answer the description of a holder of " a civil post under the Union' as stated in the article. The appellant was not entitled to the protection of Article 311.
Thus, it can be concluded that the rights under Article 311 are not available to an employee of a public corporation.
