Article 311(1)- The Appointing Authority or Any Other Authority Senior to the Appointing Authority May Only Issue an Order of Employee Removal from Service: Allahabad High Court
SECOND APPEAL No. – 676 of 1991
UNION OF INDIA AND OTHERS V. RAMDHANI PRASAD
BENCH: JUSTICE VIVEK CHAUDHARY
CONSTITUTION OF INDIA
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Article 311 (1) |
No 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 holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed. |
FACTS OF THE CASE
Thursday, the Allahabad High Court in Lucknow decided that the appointing authority or any other authority that is more senior to the appointing authority can only issue an order to remove an employee from service. The appeal challenging the Additional District Judge’s decision and judgment was being handled by Justice Vivek Chaudhary’s bench.
Under the authority of the Chief Security Officer, the respondent was appointed to the Railway Police Force’s “Rakshak” position. An order that was signed by the Assistant Commandant of the Railway Protection Special Force suspended the respondent without giving him a charge sheet.
The respondent moved to his village during the suspension, where he became ill and had to be admitted to the hospital. In the interim, in his absence, a departmental investigation was launched against the respondent. The respondent received a show cause notice, but the notice was returned as unserved because the receiver was unavailable. The respondent was ordered out of service by the Adjutant/Assistant Commandant, Railway Protection Special Force, Lumding-Assam. The respondent appealed his removal order to the Commandant of the Railway Protection Special Force, but his appeal was rejected.
The respondent filed the initial lawsuit in opposition to the aforementioned orders, requesting that the Adjutant, Railway Protection Special Force order and the Assistant Commandant, Railway Protection Special Force order be overturned and that he be made a member of the Railway Protection Special Force.
The respondent’s lawsuit was dropped. The respondent filed an appeal against the Trial Court’s decision, which was decided in his favor.
The bench was to consider the following issue:
Whether the Assistant Security Officer/Assistant Commandant/Adjutant has the power to pass an order of removal from the service against the respondent who was appointed to the post of ‘Rakshak’ by the order of the Chief Security Officer?
JUDGEMENT
The bench opined that “no doubt an Assistant Security Officer can remove a Rakshak from service but it has to be first seen who was the appointing authority of such a Rakshak. Protection afforded to an employee by Article 311(1) of the Constitution provides that an order of removal/dismissal from service can only be passed by the appointing authority or any other authority senior to the appointing authority. In the present case the respondent was appointed by the Chief Security Officer and removed by the Assistant Security Officer, who is subordinate to the Chief Security Officer in the hierarchy of the Railway Police Force, this does not satisfy the protection afforded to an employee by the Article 311 of the Indian Constitution.”
According to the High Court, an employee’s constitutional protection under Article 311 was in effect on the date of his appointment, even if the power of appointment is later extended to subordinate officers. The circumstances as they existed on the date of appointment are relevant when determining which authority is qualified to issue a dismissal or removal order.
The bench cited Krishna Kumar v. Divisional Assistant Electric Engineer and Others, in which it was ruled that “Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by Respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellant’s appointment, it must be held that Respondent 1 had no power to remove the appellant from service.” This decision was based on the Supreme Court’s decision in the case. The removal order clearly contravenes the Constitution’s Article 311(1) provisions.
After applying the preceding judgment, the High Court concluded that the respondent’s appeal was granted by the First Appellate Court in good faith. The First Appellate Court correctly applied the protection provided to an employee by Article 311(1) and overturned the Trial Court’s decision.
The bench denied the appeal based on the foregoing.
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JUDGEMENT REVIEWED BY AJAY ADITHIYAA N