What are the legal and constitutional remedies against violation of Article 311 of the Constitution? Whether departmental proceedings can be held against a Government Servant relating to the same charge after he has been exonerated at a previous proceeding? Discuss.

Question: What are the legal and constitutional remedies against violation of Article 311 of the Constitution? Whether departmental proceedings can be held against a Government Servant relating to the same charge after he has been exonerated at a previous proceeding? Discuss. [MPJS 2010]

Find the answer to the mains question only on Legal Bites. [What are the legal and constitutional remedies against violation of Article 311 of the Constitution? Whether departmental proceedings can be held against a Government Servant relating to the same charge after he has been exonerated at a previous proceeding? Discuss.]

Answer

Article 311 of the Indian Constitution provides two procedural safeguards to the civil servants in relation to their tenure of office. These are:-

1. No removal or dismissal by an authority subordinate to the appointing authority.
2. No removal or dismissal or reduction in rank, except after an inquiry affording reasonable opportunity of hearing.

A government servant is not satisfied with the decision of the disciplinary authority has the following remedies against the order passed against him:

(A) Constitutional remedies- A government employee is a citizen of India, is entitled to protection under the Constitution of India. Therefore, if any action taken against him is in violation of his Constitutional rights, he may invoke the writ jurisdiction of the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution of India.

(B) Administrative Remedies:-

(i) Appeal:-The right of appeal is one of the basic rights and defense of the delinquent employee. A government servant may prefer an appeal to the appellate authority specified on this behalf, under the Rules regulating his service. An appeal shall generally be preferred within a period of 45 days from the date of delivery of the order to the government employee. However, the appellate authority may entertain the appeal after the expiry of the said period of 45 days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.

(ii) Revision: – When, after the appellate authority has passed its judgment and if the government servant is not satisfied with it, he may file revision with the revisional authority, as prescribed by service rules. No proceedings for revision should be commenced, until after the expiry of the period of limitation of appeal or the disposal of the appeal, where any such appeal has been preferred.

The power of revision shall be exercised only on the ground:

• Of material irregularity in the proceedings of the Inquiry of appellate authority
• On account of some mistake or error apparent on the face of the record.

(iii) Review of the order as a remedy is also available to the charged government servant.

Further, where the charged employee is exonerated after an Inquiry duly held, a second inquiry on the same facts is legally not permissible as held in Dwarkachand v. State of Rajasthan, AIR 1958 Raj 38. The court observed in the case that, If we were to hold that a second departmental inquiry could be held after the previous one has resulted in the exoneration of a public servant, the danger of harassment to the public servant would, in our opinion, be immense.

In the case of Hirdaya Narayan Prasad v. State of Bihar, 1975 Lab IC 640 Pat., the court held that in the absence of a specific rule, once a disciplinary case is decided on merits, a second inquiry cannot be held on the same facts.

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