Which one of the following statements about dismissal or removal of persons employed in civil capacities under the Union or State (Article 311) is not correct ?

Question

UnlockIAS · Accepted Answer

Correct — option (3). This is a negative question, and the paper marks it: the word not in the English stem and चूकीचे in the Marathi stem are both printed in bold italic, so the reversal is flagged rather than concealed. Fix the task in one word before reading — you are hunting for the FALSE statement — and then test each of the four in turn. Option (3) says that the provisions of Article 311 apply to permanent civil servants only and not to temporary servants, and that is not the law. Article 311(1) speaks of any person who is a member of a civil service of the Union or an all-India service or a civil service of a State, or who holds a civil post under the Union or a State, and it draws no distinction between the permanent and the temporary. A temporary government servant, and a probationer too, is within the article; if he is dismissed, removed or reduced in rank by way of punishment, he is entitled to the safeguards it gives — dismissal or removal only by an authority not subordinate to the appointing authority under clause (1), and an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard under clause (2). There is a genuine distinction in this area, but it is a different one from the distinction the option draws, and it is worth learning precisely because it is what makes the wrong statement sound plausible. Where the service of a temporary servant comes to an end simply because his term has expired or because his appointment is terminated in accordance with the conditions on which it was made, and not as a punishment for misconduct, that ending is not a dismissal or a removal at all, so the safeguards of clause (2) are not attracted. The article is not inapplicable to him; it is that nothing has happened which the article speaks to. The difference is between the reach of the article and the character of the action taken, and option (3) collapses the two by saying that Article 311 does not apply to temporary servants at all. The other three options state the position correctly. Option (1) is right that military personnel are outside the article, which by its own terms and by its heading protects persons employed in civil capacities. Option (2) is right that employees of statutory corporations such as the Life Insurance Corporation and the Oil and Natural Gas Corporation are outside it, because such a corporation is a distinct legal person and its employees are neither members of a civil service nor holders of civil posts under the Union or a State. Option (4) is right that suspension is neither dismissal nor removal: clause (2) protects against dismissal, removal and reduction in rank, and suspension is not among them. Since the false statement is option (3), that is the answer to be marked.

Why the other options are wrong — (a) This statement is true, so it cannot be the answer to a question asking for the statement that is not correct. Article 311 is headed dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State, and the words civil capacities do the work: members of the armed forces are not covered by it. That does not mean they are without any constitutional position. Article 310 lays down the doctrine of pleasure — that every person who is a member of a defence service or of a civil service of the Union or of an all-India service, or who holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, with the corresponding rule for the States and the Governor. Article 311 then carves two exceptions out of that pleasure for civil servants alone, and defence personnel do not receive them; their conditions of service and discipline are governed by the Army Act, the Navy Act and the Air Force Act and by court-martial procedure. The pairing of Articles 310 and 311 is the frame within which every question on this topic is set, and it is worth learning the two together rather than separately.  (b) This statement is also true and therefore not the answer. Article 311 protects a person who is a member of a civil service of the Union, an all-India service or a civil service of a State, or who holds a civil post under the Union or a State. An employee of a statutory corporation such as the Life Insurance Corporation of India or the Oil and Natural Gas Corporation falls into none of those categories: the corporation is created by or under a statute as a legal person distinct from the government, it employs its own staff on its own terms, and those employees hold posts under the corporation and not under the Union or a State. The consequence is not that such employees are without remedy — their service conditions rest on the statute, the regulations made under it and their contracts, and the corporation, being an authority within the meaning of Article 12, is subject to the writ jurisdiction and to the discipline of Articles 14 and 16. What they do not have is the particular procedural protection of Article 311(2). The distinction between a civil post under the Union and a post under a body created by the Union is the one this option tests.  (d) This statement is true, and its truth follows from the words of the article rather than from any judicial gloss. Article 311(2) provides that no such person shall be dismissed or removed or reduced in rank 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. Three actions are named and suspension is not one of them. The reason is that suspension does not end the relationship of service or reduce the servant's rank: it holds him out of duty while a matter is investigated or a disciplinary proceeding runs its course, he remains a government servant, and he ordinarily draws a subsistence allowance. Because it is not a punishment of the kind clause (2) is aimed at, the elaborate inquiry that clause requires does not have to precede it — which is precisely why suspension is available as an interim step, and why questions on Article 311 so often use it as the test of whether a candidate has read the clause or merely absorbed the idea that civil servants cannot be proceeded against without a hearing.

Concept: Articles 310 and 311 together govern the tenure of persons in public service and must be read as a pair. Article 310 states the doctrine of pleasure inherited from English law: subject to the provisions of the Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service, or who holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor. Article 311 then restricts that pleasure, but only for persons employed in civil capacities. Clause (1) provides that no such person shall be dismissed or removed by an authority subordinate to that by which he was appointed. Clause (2) provides that no such person shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of them; a proviso added later makes clear that the penalty may be imposed on the basis of the evidence adduced at that inquiry without a further opportunity to make representations on the penalty proposed. A second proviso lists three situations in which no inquiry need be held at all: where the person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; where the authority empowered to dismiss or remove him is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to hold an inquiry; and where the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold one. Clause (3) makes the decision of the authority on whether it is reasonably practicable to hold an inquiry final. The scope of the article is fixed by three boundaries: it covers civil servants and not defence personnel; it covers holders of posts under the Union or a State and not employees of statutory corporations or companies; and it covers dismissal, removal and reduction in rank and not suspension, compulsory retirement in accordance with the rules or the ordinary expiry of a temporary appointment.

State PCS 2022 Q69 — Polity & Governance PYQ with Answer

State PCS 2022 Q69 — Polity & Governance PYQ with Answer