This article is written by Raslin Saluja from KIIT School of Law, Bhubaneswar. This article analyzes the rule of audi alteram partem in reference to disciplinary proceedings against civil servants under Article 311(2) of the Constitution.
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Rules of natural justice imply fairness, reasonableness, equity and equality. These have developed over time and are a proper measure of the level of civilization prevailing in the community. These are a part of the higher procedural principles of common law developed through adjudication to guide the administrative agency while taking any decision adversely affecting the rights of a private individual. These principles are incorporated in the Indian Constitution to provide legal immunity and protection for safeguarding administrative officials and civil servants against the misuse of the law.
Audi alteram partem – the rule of fair hearing
In simple terms, the principle of audi alteram partem means hearing the other side. It is the second fundamental principle of natural justice which states that no man should be condemned unheard, that both the parties must be given the reasonable opportunity to be heard before passing any order. This is the first principle of civilized jurisprudence and is accepted by laws of men and god and is a sine qua non of every civilized society. The principle is used to ensure fair play and justice in the field of administrative action. Its application depends upon the factual matrix to improve administrative efficiency, expediency and to mete out justice. The rule of fair hearing is a code of procedure, and hence covers every stage through which an administrative adjudication passes, starting from notice to final determination.
Article 311 of the Indian Constitution
Article 311 of the Constitution of India as such does not affect or modify the doctrine of pleasure exercised by the President/Governor or any person so authorized on their behalf under Article 310 but only provides limitations on it by subjecting them to the two conditions laid in the Article. It protects the civil servants holding civil posts by safeguarding and protecting them from arbitrary arrest. Civil post here essentially means an office or appointment from the civil side of administration. In the case of State of Uttar Pradesh v. A.N. Singh (1965), the Supreme Court laid down certain points to determine the relationship of an employer and employee in terms of appointment for services, control and management, duty to pay, method of work and power to terminate.
The safeguards mentioned under Article 311 of the Constitution can be claimed by members of All India Service, members of civil service of the Union and a State, persons holding a civil post under the Union or a State. However, some persons are excluded from claiming the benefit of the Article like those in military services, the defence sector, employees of statutory public corporation, P.G.I, etc., the employees of government companies registered under the Companies Act, 1956, or of registered societies, or of a university are not holders of civil post and thus do not fall under these civil servants. Further, where a person is appointed without following the recruitment and procedure, his appointment being illegal can be terminated without complying with the safeguards.
This provision is applicable only upon the event when a civil servant is “reduced in rank”, “dismissed” or “removed” against his will before the expiration of the period of his tenure. They are entitled to this safeguard under clause 2 only when the reduction in rank, dismissal, or removal is done by way of penalty. To determine whether it was done by way of penalty/punishment, the Supreme Court laid down two tests in the case of Parshotam Lal Dhingra v. Union of India (1958) which are:
- Whether the concerned employee has the right to hold the post?
- Whether the employee has been visited with evil consequences? (evil consequences mean civil or penal consequences)
It has been held in the case of Union of India v. Raghuwar Pal Singh (2018) that the simple order on termination does not reflect on the respondent’s conduct rather it is just an implication of his appointment being illegal due to being made without the prior approval of the competent authority. Where such termination is made without taking recourse to an inquiry is violative of the principle of natural justice and Article 311(2) of the Constitution. Article 311(2) also attracts certain cases like rank reduction or termination of the contractual or permanent employee since both have the right to hold posts. Similarly, under Rule 6 of Central Civil Services (Temporary Service) Rules, 1965, Article 311(2) is attracted as it states that the termination of services of persons in ”quasi-permanent” services would also be treated as punishment. Thus, it can be concluded that for any order passed in any form with the effect of rank reduction, dismissal or removal against employees holding a civil post, to be valid has to be preceded by an inquiry and reasonable opportunity to be heard as guaranteed under Article 311(2).
Inquiry and reasonable opportunity
A civil servant to be reduced in rank, dismissed or removed will first have to be given a reasonable opportunity to be heard and make his defence. The Preamble of the Indian Constitution offers economic, social and political justice along with the freedom of belief, thought and equal opportunity which allows the employee an opportunity to make his defence pursuant to ensuring fairness in administrative action based on the rules of natural justice. These principles are connected to Article 14 which ensures “equality before the law and equal protection of the law”, in a way that violation of principles of natural justice would violate Article 14 as well. Such an administrative action would be considered arbitrary in nature. All the procedures of Audi Alteram Partem from the right to notice to the final determination of a complaint filed against an employee have to be applied equally to every employee and otherwise, it would violate Article 21 of the Constitution.
The reasonable opportunity to be heard entails all the aspects of the natural justice principles that must not be left unaddressed to provide an absolute opportunity to present his defence. Since all the principles of natural justice cannot be laid down to determine whether a reasonable opportunity was given or not, a generic statement that is given recognition is that an inquiry was followed after observing the principles of natural justice in fair conduct. In the case of Union of India v. T.R. Varma,(1957), Venkatarama Aiyer J said, for the purpose of applying the rules of natural justice, a party must be given an opportunity for adducing all relevant evidence on which he relies. He should be allowed to cross-examine witnesses. No material should be relied upon without giving him the opportunity to make the defence.
It was held in the case of Khem Chand v Union of India (1958), that the opportunity of being heard translates into allowing the concerned employee to establish his innocence after the charge sheet is issued to him, this would also allow cross-examining the witness for his defence as well as the one in support of charge sheet. This will be followed by the opportunity to make representation only when penalties like dismissal, removal or rank reduction have been inflicted by the competent authority.
Prior to the 42nd amendment in 1976, a civil servant had the opportunity to make defence at two stages:
- at inquiry stage where the inquiry officer is given the opportunity to make his own defence, and
- at the punishing stage where the employee concerned is given the opportunity to make his representation against the penalty proposed to be imposed by the disciplinary authority.
After the amendment, the second stage was removed. Therefore later when in the case of Keya Kar v.The State of West Bengal (2019), the petitioner was granted the opportunity to make a defence in the enquiry and not against the order of punishment. Hence, it was held that there was no violation of principles of natural justice.
Exclusion of inquiry
Though Article 311(2) of the Constitution states that every person shall be given the opportunity to be heard, however, it is not absolute and has some exceptions wherein it is not required to give the said opportunity and it will not amount to a violation of principles of natural justice. These instances are as follows:
Exception 1 – conviction on criminal charge [proviso 2(a), Article 311(2)]
According to proviso (a) to clause (2) of Article 311, the protection under clause 2 of Article 311 i.e opportunity to be heard, will not be applicable before imposing any of the major penalties in cases where the prosecution of the employee is for a criminal offence and leads to rank reduction, dismissal or removal. To apply this proviso, it is not necessary for the government to wait until the disposal of appeal or revision presented against the conviction. But the order of dismissal will cease to exist if the conviction is set aside.
Exception 2 – where inquiry is not reasonably practicable [proviso 2(b), Article 311(2)]
The scope of this clause has been explained in the case of Union of India v. Tulsiram Patel (1985), wherein the Supreme Court 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 at the satisfaction of the disciplinary committee. It is not a total or absolute impracticability that is required by clause (b).
- 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 disciplinary authority is to record the reasons in writing for dispensing with the inquiry. There is no obligation to communicate the reasons to the government servant.
- The decision of the disciplinary authority is final by Article 311(3). However, it is not binding upon the courts so far as its power of judicial review is concerned.
In another case of Southern Railway Officers Association v. Union of India (2010), the application of clause 2 was put to test before the Supreme Court. Herein a disciplinary proceeding was initiated against one Arputharaj which led to his dismissal from the services who was later reinstated. One day, when the disciplinary authority for workmen working in the workshop was waiting in the railway station when that servant abused him and threatened to kill him. Based on the documents available with the Committee, he was dismissed from the service without holding an inquiry which was held properly by the Apex Court.
Exception 3 – the holding of inquiry not expedient in the interest of state [proviso 2(c), Article 311(2)]
This exception provides that it is not expedient to give a civil servant the opportunity when it is found to not be in the interest of the security of the state subject to the satisfaction of the president/governor. The purpose of this exception was elaborated by the Court in Union of India v. Tulsiram Patel, wherein the satisfaction of the president/governor is in the context of expediency in holding an inquiry in the interest of the security of the state. This satisfaction is subjective in nature and cannot be classified by objective standards.
In the case of Union of India & Anr v. M.M.Sharma (2011), an Indian employer working in China was terminated for disclosing certain confidential photos to the Chinese government. The Supreme Court held that it was justified for protecting the interest of the security of the state.
Clause D – Article 311(3)
It is the finality clause that refers to the situation covered under Article 311(2) (b), provision (ii), mentioned earlier. It states that if a question arises whether it is reasonably practicable to hold such inquiry as in clause 2 in respect of such a person, the decision of the empowered authority to dismiss, remove or reduce rank shall be final. However, it has been stated by the Apex Court that Article 311(3) does not absolutely bar the judicial review of the action taken under Clause 2(b) of Article 311, proviso (ii). It has been held that the finality of it can be tested in the court of law when it is found that the action is arbitrary or mala fide or motivated by extraneous consideration or a ruse to dispense with the inquiry.
Article 311 aims to safeguard the rights of the civil servants under government service against the arbitrary rank reduction, dismissal or removal. It enables them to discharge their function confidently and efficiently. The main aim is to ensure a certain amount of security to them. Thus, in case of imposition of penalty in the form of rank reduction, removal or dismissal by virtue of Article 311(2), they must be given an opportunity to be heard. The public interest and security of the country are given more emphasis and therefore the principles of natural justice are tailored to serve the public interest and adapt to the demands of the developing society. Therefore, their application needs to be flexible to accommodate the requirements of the case. However, sometimes following the principles can create unnatural results and it may not be possible to present such an opportunity to be heard, hence the exceptions.
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