What is Article 311 (2)?

Source: By Mohamed Thaver: The Indian Express

Suspended police officer Sachin Waze, arrested by the National Investigation Agency (NIA) in connection with the Mukesh Ambani terror scare case, was dismissed from service by Mumbai Police Commissioner under Article 311 (2) (b) without a departmental enquiry.

After Waze was arrested by the NIA in March in connection with his role in the Ambani terror scare case and subsequent murder of Mansukh Hiran, he was suspended. On 11 May 2021, Mumbai Police Commissioner Nagrale dismissed him for service under Article 311 (2)(b) of the Indian Constitution.

While Article 311 is meant to act as a safeguard for civil servants that gives them a chance to respond to the charges in an enquiry so that he/she is not arbitrarily dismissed from service, the article also provides exceptions to these safeguards under subclause 2 provision b. It states “when an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry”.

In Waze’s case, Nagrale wrote that he was the competent disciplinary authority and was satisfied that holding a departmental enquiry against Waze “will not be reasonably practicable.”

Article 311 says that no government employee either of an all India service or a state government shall be dismissed or removed by an authority subordinate to the own that appointed him/her. Section 2 of the article says that no civil servant shall be dismissed or removed or reduced in rank except after an inquiry in which s/he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges.

In a departmental enquiry, after an enquiry officer is appointed, the civil servant is given a formal chargesheet of the charges. The civil servant can represent himself/herself or choose to have a lawyer. Witnesses can be called during the departmental enquiry following which the enquiry officer can prepare a report and submit it to the government for further action.

As per Article 311 subclause 2 provision a, if a government employee is convicted in a criminal case, he can be dismissed without DE. Apart from this, under 311 (2) (c), a government employee can be dismissed when the President or the Governor, as the case may be, is satisfied that in the interest of the security of state it is not expedient to hold such an enquiry, the employee can be dismissed without DE.

Are 311 (2) sub sections are invoked in exceptional circumstances. But the Jammu & Kashmir administration recently set up a Special Task Force (STF) to “scrutinise cases of employees suspected of activities requiring action under article 311(2)(c). The order dated 21 April 2021 further tasks the STF headed by ADG (CID) J&K to “compile records of such employees, wherever necessary and to the committee constituted by the government”. Three government employees, including two teachers, have already been fired. The move has been opposed by rights activists.

The government employee dismissed under these provisions can approach either tribunals like the state administrative tribunal – in Waze’s case it would be the Maharashtra Administrative Tribunal — or Central Administrative Tribunal (CAT) or the courts.