Conduct & Disciplinary Rules – 66

CCS Rules & Principles of Natural justice 

I.     JUDICIAL PRONOUNCEMENTS

1. No Removal By Subordinate Authority

i. 'Subordinate' means subordination in rank and not in respect of function. Where the order of dismissal is made by an authority subordinate to the appointing authority, the unconstitutionality is not cured by the fact that the order of dismissal is confirmed, on appeal by the proper authority.

[Suraj Narain Anand v. North West Frontier Province, AIR 1942 FC 3]

ii. The power to dismiss cannot be delegated

The appointing authority cannot delegate his power of dismissal or removal to a subordinate authority, so as to destroy the protection afforded by the Constitution unless the Constitution itself authorises such delegation by other provisions.

[Ramchandra v. DIG, AIR 1957 MP 126]

iii. It is not required that dismissal or removal must be ordered by the very same authority who made the appointment or by his direct superior. There is a compliance with the clause if the dismissing authority is not lower in rank or grade than the appointing authority.

iv. As held in Venkateswarrao v. State of Madras, AIR 1954 Madras 1043 the dismissal by an authority superior to the appointing authority is not bad. There have been judicial pronouncements to the effect that clause (i) of Art. 311 has no application where the punishment is of reduction in rank. Since Art. 311 (1) does not refer to reduction in rank, the authority to impose such punishment need not be the appointing authority as held in Babaji Charan Rout v. State of Orissa, 1982 Lab IC 603 (Ori) and Const. Nyadar Singh v. Union of India, AIR 1988 SC.

v. Since the clause (1) of Art. 311 does not apply to any other punishment, the question of laws or rules or administrative instructions regarding other punishments or disciplinary action in relation to such punishment being violative of Art. 311 (1) cannot arise - although such actions are liable to be tested against Arts 14 and 16 of the Constitution.

2. Reasonable Opportunity to defend

i. In relation to the three major punishments of dismissal, removal and reduction in rank, Clause (2) of Art 311 mandates the compliance of natural justice. It provides the procedural essentials to be followed before the dismissal, removal or reduction in rank of an employee. An opportunity to defend has to be given to the civil servant at the stage of enquiring of charges against him. This opportunity to defend himself, does not, it will be noted, apply to all cases of termination of service by the Government. The protection under Article 311 (2) can be available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.

ii. The inquiry contemplated by Art 311 (2) is what is generally known as a departmental enquiry and the constitutional requirements for a proper inquiry within the meaning of Art 311 (2) are two fold :

(a) The civil servant must be informed of the charges against him.

(b) He must be afforded a reasonable opportunity of being heard in respect of those charges.