‘A’ a Central Government employee was removed from the service without conducting an enquiry. He was removed from the service on the ground that he used some criminal force against his superior authority. Is removal valid?
The removal from service on the ground that he used some criminal force against his superior authority is not valid. He ought to have been given a reasonable opportunity of being heard before removal from service. It is the basic principle of natural justice.
The exceptions to Exclusion of Natural Justice are provided under Art. 311(2). Art. 311(2) reads – The protection of Article 311(2) for giving, ‘reasonable opportunity’ is not available in the following circumstances only:
1) where a person is dismissed or reduced in rank on the ground of misconduct which has led to a conviction or criminal charges;
2) where it is impracticable to give the civil servant an opportunity to defend himself but the authority taking action against him shall record the reasons for such action.
3) where in the interest of the security of State. It is not expedient to give such an opportunity to the civil servant.
In the above problem, A has used some criminal force against his superior authority. It does not warrant waiver of natural justice. He should be given an opportunity of oral hearing by way of domestic enquiry.
In Jaswant Singh v. State of Punjab, (1991) 1 SCC 362, the appellant was dismissed from service without holding departmental enquiry to exercising the power under clause (b) of the second proviso to Art. 311(2) of the Constitution.
Two reasons were given in support of the subjective satisfaction of the authority, i.e.,
(i) that the appellant had thrown threats that he would not allow holding of any departmental enquiry against him, and
(ii) he and his associates would not hesitate to cause physical injury to the witness as well as the enquiry officer.
The Supreme Court held that the respondents have failed to disclose to the Court the material in support of the subjective satisfaction. The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority.
When satisfaction is questioned in a court of law, it is the duty of the respondent to show that the satisfaction is based on certain objective facts and not the outcome of the whim or caprice of the concerned officer.
In the absence of any independent material to justify the dispensing with the inquiry envisaged by Art. 311(2), the order of dismissal cannot be sustained.