This article is written by Shubham Gupta, from NLUO, Cuttack.

Abstract

Here the author has summarized the landmark Judgment of “Union of India and Another vs. Tulsiram Patel and Others”. A discernibly lengthy judgment, it has covered multiple issues and objectives which can be considered as a rulebook for administrative bodies and civil servants who are removed, dismissed or reduced in rank as per “Article 309, 310 and 311 of the Indian Constitution”. The author has divided the whole case into three major issues to felicitate the reader to grasp everything substantial about a particular issue or topic and thus avoiding the necessity to read in whole judgment for the same. The division pertains to Doctrine of Pleasure, Inquiry and Natural Justice in the cases of removal, dismissal, and reduction of the rank of the Civil Servants, majorly, in reference to “Article 310(1)”, “second proviso to Article 311(2)” and rules made concerning “Article 309”.  Each issue is further divided by the author into three sub-parts including arguments advanced by the aggrieved party i.e., government servants, arguments advanced by the appellant i.e., Union of India and ultimately the judgment pronounced by the court regarding that particular issue. In the end, the author has written his comments and views pointing out the discrepancy in the Judgment regarding Natural Justice; the significance concerning matters like the doctrine of pleasure, judicial review, public interest over private interest and also the relation of constitution provisions with brother constitution provisions.

Facts

• Tulsiram was a Chief auditor whose increment was halted for a year. When not given a proper explanation by his senior regarding this action, he struck the senior with an iron rod. He was ultimately convicted under Section 332 of Indian Penal Code against his boisterous actions. In consequence of his criminal conviction, he was forced to retire from his post under clause (1) of Rule 19 of the Civil Service Rules.

• The CISF force of the Bokaro Plant formed an All India General Association and started a countrywide agitation to get recognition for the association. The gravity of the agitation was such that the army was called to secure the parameters. The agitators were being forced to hand over the armoury tin by the army as a required security measure. In response, the association counter-fired on the army. The concerned member of the association was dismissed under sub-rule ‘b’ of Rule 37 of the CISF rules of 1969 read with clause ‘b’ of the second proviso to Article 311(2) of the Indian Constitution.

• The railway servants were allegedly responsible for the incidents that occurred in the All India Strike of the railway employees to force the government to accept their demands. The strike by the railway employees was declared ‘illegal’ as it did not comply with Section 22 of the Industrial Dispute Act, 1947. The railway employees were dismissed or removed under clause 2 of rule 14, read with, clause ‘b’ of the second proviso of Article 311 (2).

• A man was burned alive in a fair held in Gwalior in the consequence of which, members of Madhya Pradesh (M.P) Special Police Force and District Police Force were taken into judicial custody. In reaction to the arrest of their colleagues, the other members of both the forces rioted in the fair demanding their release. Police being the guardian of the law, had broken the law themselves, the particular situation required prompt action. Governor of the state under clause ‘c’ of the second proviso of Article 311(2) of the Constitution of India, dismissed these members.

• These Government Servants, as observed, without an inquiry or an opportunity of being heard were either removed or dismissed from the services. The penalties so imposed, of either dismissal or removal, were executed by invoking any of the three clauses of the proviso appended to Article 311(2) of the Indian Constitution or under the similar rules made under the proviso to Article 309. Aggrieved by these orders, all of them under Article 226 filed writ petitions in different High Courts to seek relief. A number of these petitions were accepted in the pretext of the Apex Court judgment in Divisional Personnel Officer, Southern Railway & Anr. v. T.R. Challappan and some were rejected at the outset. The people whose petitions were rejected filed a Special Leave Petition in the Supreme Court in which the three-judge bench found that there exists a conflict between T.R. Challapan’s case and Gopal Krishna Naidu’s case. Thereafter, the Hon’ble Chief Justice of India constituted a five-judge constitution bench wherein all the appeals and petitions were amalgamated and the final matter was listed for disposal in the present case.

Issues

1. What is the extent to which the Doctrine of Pleasure should be exercised?
2. Whether the “second proviso appended to Article 311(2)” is absolute in nature or allows partial inquiries and show cause notices?
3. Whether the “second proviso appended to Article 311(2)” is violative of “Article 14” and the “Audi Alteram Partem” principle of Natural Justice?

ISSUE 1: WHAT IS THE EXTENT TO WHICH THE DOCTRINE OF PLEASURE SHOULD BE EXERCISED?

Arguments Advanced by Government Servants

Government servants contended that the Doctrine of pleasure exists in India merely as a reflection of the British laws and therefore cannot be applied in the same manner as that in England, where it is a special prerogative of the crown. The doctrine should not be exercised in a strict sense and should liberally be in favour of the government servants.

Arguments Advanced by Union of India

The doctrine of pleasure under “Article 310 of the Indian Constitution” and the safeguards to the rule given to government servants under Article 311 (1) and (2) are all enacted in the public interest. Similarly, the “second proviso under Article 311 (2)” is also enacted for public interest and it is a well-defined rule that in case of a contradiction between private and public interest, the latter prevails over the former.

Held 

• The court held that it is untrue to say that Doctrine of Pleasure is transported in India through British crown as the doctrine is not subject to any law or statute made in the British era by the parliament but it derives its powers from what is expressly mentioned in the constitution.
• The second proviso has been included by the constitution-makers in the constitution with full knowledge as several discussions and debate about the same were held in the constituent assembly. 
• To prove that it is not a mere reflection of British law it should be compared with “Section 240(3) of Government of India Act 1935” which was included by the British on similar lines as that of the second proviso. Section 240(3) only had two clauses as compared to the Constitution of India which has three clauses in the proviso thus it can be concluded that constitution-makers were well aware of the existence of the doctrine of pleasure and have inserted it in public policy in the public interest for the public good.
• Hence it should be not confined to any extent and should be followed in the manner provided in the constitution of India. 

ISSUE 2: WHETHER THE “SECOND PROVISO APPENDED TO ARTICLE 311(2)” IS ABSOLUTE IN NATURE OR ALLOWS PARTIAL INQUIRIES AND SHOW CAUSE NOTICES?

Arguments Advanced by Government Servant

• According to Government Servants, there are many stages prior to an inquiry. Hence even if the inquiry is dismissed, the show cause notice should be given to the servant and explanation of the same has to be included.
• It is not necessary to dismiss the whole inquiry and only a part of the inquiry should be dismissed as per the facts and circumstances of the case.
• The Penalty does not come under the umbrella of inquiry hence even if the inquiry is dismissed the concerned employee should be given a chance to represent himself for the proposed punishment.

Arguments Advanced by Union of India

The very essence of the clauses mentioned in the second proviso of Article 311(2) says that it is not necessary or pragmatic to have any inquiry. When Article 311(2) becomes inapplicable there is no scope of any kind of inquiry, not even partial inquiry.

Held

• The disciplinary committee should initially decide the punishment by itself and if the decided punishment is dismissal, removal or reduction in rank an inquiry must be conducted. The decision though should be reached by the committee itself regarding which one of three penalties should be imposed. The requirement is that the punishment should not be arbitrary, gross or out of proportion.
• Under clause ‘a’ of the second proviso, the conviction of the concerned servant will amount to a proof of his misconduct and after taking into deliberation all the facts and circumstances by the disciplinary committee, the decision has to be taken without hearing the concerned employee.
• Inquiry in “clause ‘b’ of the second proviso” also includes part of an inquiry. It is also not necessary that the situation which is unreasonable to hold an inquiry should exist before the inquiry starts and come into picture subsequently but it is obligatory upon the disciplinary committee to cite the reason of the unreasonableness, otherwise, the order of penalty will be held to be void and unconstitutional.
• In “clause ‘c’ of the second proviso”, the information disclosure in itself is considered a threat to the security of the state and so in such a case, any inquiry will be as prejudicial to the security of the state as the act itself. Here, under this clause, the satisfaction of the President and Governor in the impugned dismissal need not be in their personal capacity but by any other person acting for them in their constitutional capacity.
• The employees still have relief if they are aggrieved by one of these clauses to appeal for a relevant departmental remedy mentioned in the service rules. If they are not satisfied with the provided remedy, they can invoke the power of the court of Judicial Review.
• The departmental appeal and inquiry are allowed on a condition that the situation which envisaged at the time of the appeal, the circumstances mentioned in the second proviso of Article 311(2) should not exist and if they do, the appellant might ask for the postponement of the application for a reasonable time until the situation becomes normal. When the punishment is imposed by the President or the Governor it is not subject to departmental review.
• If the court finds that the “second proviso of Article 311 (2)” is applied extraneously and has no relation with the facts. Additionally, if it is found that such action is taken by the disciplinary committee with mala-fide intentions, the court in the exercise of Judicial Review can strike down the penalty and initiate an inquiry.

ISSUE 3: WHETHER THE “SECOND PROVISO APPENDED TO ARTICLE 311(2)” IS VIOLATIVE OF “ARTICLE 14” AND “AUDI ALTERAM PARTEM PRINCIPLE” OF NATURAL JUSTICE?

Arguments Advanced by the Government Servants

Article 311 is subject to “Article 14 of the Indian Constitution”. The “second proviso to Article 311(2)” is violative of “Audi Alteram Partem principle” of Natural Justice which is an essential part of “Article 14 of the constitution”. A show-cause notice seeking an explanation of the concerned servant is required and also a notice regarding the proposed penalty has to be given. Not adhering to these guidelines for the production of either of the notices proffers the order of dismissal, reduction or removal invalid.

Arguments Advanced by the Union of India

Article 311 is not governed by “Article 14 of the Indian constitution”. The Constitution should be interpreted in totality. Article 14, though applies the principle of “Audi Alteram Partem” and takes into consideration the rules of Natural Justice but when the “second proviso of Article 311(2)” expressly excludes the principles of Natural Justice, they cannot be forced to apply the same by recourse of “Article 14 of the Indian constitution”.

Held

• Article 14 is the constitutional guardian of the Natural Justice but not the originator of the same. Article 14 is not only limited to protection against inequality but also arbitrariness. When the rules of natural justice are not applied by the state it leads to arbitrariness attracting Article 14. 
• It is a well-established principle that Natural Justice is dynamic in nature and applied according to different situations and requirements. The principles under it are not rigid in character and neither is there any legal straitjacket against its application. They are not unchallengeable but flexible in character and can be changed, excluded, moulded and modified by the statute, rules, Constitution and also by the tribunal under which the case is held.
• The legislation and the requisite situational matrix may always exclude the “Principles of Natural Justice” including the “Audi Alteram Partem” principle; as explicitly excluded in the second proviso of Article 311(2) in this case.
• When principles of Natural Justice are explicitly avoided in a particular part of the Constitution, it should not be brought back by mindlessly enforcing Article 14 thus causing the same injury which was sought to be avoided through such proviso. 
• The Principles of Natural Justice should be unrestricted and not absolute in its practice, as the ultimate goal of the constitution is Social, Economical and Political Justice. Where they could be achieved by its express exclusion, the same should not be unnecessarily brought forth to dissolve the very purpose of its existence. 
• The right to have a departmental remedy and the constitutional right of Judicial Review bestowed on a person is sufficient compliance with the requirement of Natural Justice.

Opinion

This judgment is a landmark one with regard to defining the strata of Natural Justice. As earlier, Natural Justice being a universal rule was extended to all policies, rules, and statutes which sometimes dissolved the very purpose of its being and existence i.e., to provide justice. The scope of Natural Justice was further increased after the Maneka Gandhi case, which extended the scope of Article 14 to arbitrariness, indirectly bringing Natural Justice under the umbrella of Article 14. It, therefore, made it a fundamental right to which the author agrees to a certain extent. In the author’s opinion, the fact that the non-compliance of Natural Justice Principles does not always lead to arbitrariness is discernibly neglected. In this Judgment, though it was held that Natural Justice is not a mandatory provision and can be excluded according to the explicit provisions of the Constitution, the latter part of the Judgment elucidates that departmental review according to the court is in the confirmation of the principles of Natural Justice thus, not clarifying the image as to absolute exclusion and inclusion of the same.  

In the judgment, the whole debate was on the Doctrine of Pleasure, its existence, and applicability in India. The court has clarified the doctrine in a very explicit manner and has concluded its separate existence to that of England explaining the doctrine to the extent of the constitution. It has elaborated on the further scope and its constitutionality by highlighting Article 309 of the Indian Constitution which says that any legislation pertaining to the rule of service can be made subject to the provisions of the Constitution. Hence, all the rules as also mentioned in the above scenarios, which had provisions on the lines of the doctrine were held to be constitutional in reference to Article 310(1) and “Second Proviso of Article 311(2)”. Thus, the constitutionality of the “Second Proviso” clarifies and approves the constitutionality of Doctrine of Pleasure in other statutes as well.

This case is one of the initial Indian cases which explicitly highlighted and prioritized public interests over private interests. It was majorly the contemporary period when the LPG (Liberalization, Privatization and globalization) policies of 1990 came into existence that the Corporate Interest and public interest were held to precede private interest. It also highlighted the purview of “Part III of Indian Constitution” by mentioning that though these rights are important, they cannot take away the other constitutional provisions. The constitution has to be read in whole and not read with any other constitutional provision until and unless expressly provided to do so. This leads the author to draw an inference that constitution provisions do not come under the strict purview of “Article 13 of the Indian Constitution” though they should be in harmony with each other. A mere inconsistency of any constitution provision with that of the fundamental right does not render the provision to be void. The express provisions of the constitution being inconsistent with the Part III will have their own space until and unless those provisions are expedient for Justice Delivery to the society and are not unjust in any manner as any other constitution provision consistent with the fundamental rights.

Scope of judicial review is also observed to be articulated by this judgment as it clearly explains that administrative and quasi-judicial bodies are also subject to the Judicial Review after they have exhausted all the internal remedies present with them. It was clearly provided and enabled in the Judgment for the government servants to exercise the same when their case falls under the purview of the “Second Proviso of Article 311(2)”.

This judgment in overall is a great and an exhaustive piece of document which articulated the overall procedure and law regarding the removal of the government employees. This judgment does not confine itself in answering the concerned question but gives it a broader perspective by analyzing other constitutional provisions as well. This judgment is very significant in terms of Administrative Law as it answers the questions and defines the scope of Natural Justice, Fundamental Rights and Judicial Review in administrative bodies.  It has provided that a proper procedure and route has to be exercised by the administrative bodies and its stakeholders for ensuring that the procedure is just, reasonable, fair and in light of public interest.

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