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Since 1st March, 1999
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Q: I used to work as an assistant engineer in a state government department. In September 2006, a charge sheet was issued against me containing certain allegations. I was placed under suspension and disciplinary proceedings were initiated against me which I duly contested. The enquiry officer found the charges to be true and filed a report against me. Under the service rules of the state government, the disciplinary authority competent to impose punishment pursuant to an enquiry report is the appointing authority, that is, the engineer-in-chief of our department. He issued a showcause notice asking for an explanation as to why the punishment of termination of service should not be imposed on me in view of the findings. My reply to the said notice was rejected. Last month, the chief secretary of our department issued a termination letter to me. I want to know whether the chief secretary is the competent authority to issue a termination letter? What legal remedies do I have? I am innocent and have not committed any misconduct or irregularity.

Name withheld

A: Articles 309 to 311 of the Constitution deal with the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union government or any state. Under those provisions, every civil servant holding a post under a state government holds office during the pleasure of the Governor. Article 311(2) qualifies the pleasure of the Governor and such pleasure cannot be exercised if a civil servant’s service is to be terminated as a punishment for misconduct. However, in such a case, a reasonable opportunity of being heard in respect of the charges must be given to the concerned civil servant. However, the said provisions do not mandate that the dismissal must be by the very same authority who had made the appointment or by its direct superior. The Supreme Court has recently held that the dismissal can be either by the appointing authority or by any other authority to which the appointing authority is subordinate. I take it that the engineer-in-chief of your department is subordinate to the chief secretary. In that event, you cannot have any grievance as regards issuance of the termination letter by the chief secretary instead of the engineer-in-chief.

As regards your second query, if your service rules provide for an appeal, you should forthwith challenge the enquiry officer’s report and the termination order before the appellate authority. You can also file a writ petition in the high court. Since you were given a hearing in compliance with Article 311 of the Constitution, you cannot complain of breach of natural justice.

However, if you can demonstrate that the report and the consequential termination order are so arbitrary, unreasonable or based on no evidence so as to render them perverse in the eye of law, then you have a good chance of succeeding. You may also take the ground of “proportionality”, if you can show that the punishment of termination imposed on you is wholly disproportionate to the charges levelled against you. Please note that if you have the alternative remedy of appeal, the writ court may decline to interfere on that ground alone. Hope this answers your queries.

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