ABSTRACT
For better or for worse, Britain has had a lasting effect on the Constitution, conformation and construction of India and its government. The Doctrine of Pleasure was one of the many doctrines that emerged and was borrowed from England.
In simple terms, this doctrine translates to its meaning that the Crown has the authority or power to terminate the services of a particular civil servant at any time they wish to, without having to give any prior notice of the termination or any reason to the servant. Therefore, the civil servants essentially work at the pleasure of the Crown with the risk of getting ousted by them at any given time and it is also important to note that the said civil servant will not receive any arrears of salary nor will he be eligible to receive any damages for the termination of his service before the contract term ends.
Through this paper, the researcher aims to compare the Doctrine of Pleasure in India and the United Kingdom to elaborate on the differences of the doctrine in the two common law countries. The data for this research paper was collected from secondary sources in the form of books, previous studies and government websites.
Keywords: Doctrine of Pleasure, Crown, Constitution of India, United Kingdom.
INTRODUCTION
The Doctrine of Pleasure, also known as “tenure at pleasure” is a term that is exclusive to civil servants and its origin can be traced back to the Latin maxim “durante bane placito”.
This maxim states that the contract of service with the Crown must include a clause stating that the Crown has the right to terminate the employee at any time it feels to do so[1]. The Crown has the legal authority to discharge either civil or military officers at will, with a prerequisite to such an effect being an implicit term of service contract, unless otherwise expressly stated[2]. The Doctrine is solely founded on the Crown's sovereign right, and the concept that the King is incapable of making a mistake. The Crown therefore has unilateral relationship with the servants and further, this doctrine has been recognized as a prerequisite by the Privy Council in several of its decisions[3].
In India, the Doctrine of Pleasure, though modeled upon the British pattern, is different from the English approach. In England the public officers and servants of the Crown held their office during the pleasure of the appointer, based on the Latin maxim “durante bebe placito” meaning that any appointment of a Crown Servant is terminable at will unless it is expressly provided by the Law of British Parliament. In India, the civil servants hold the office during good conduct known as “dum bene se gesserit'' also called as “quadiu se bene gesserit” which means as long as he shall behave himself well[4].
DOCTRINE OF PLEASURE IN THE UK
In the UK, the doctrine of pleasure is absolute in nature. The servant's position is often held at the Crown's absolute authority and has no fixed term; they hold the office only on the discretion of the Crown[5].
Further, the Crown has the final say and it may also fire a civil servant if he or she was hired on a contractual basis, with no compensation. Additionally, the Crown has the power to dismiss the public servant it has appointed.
In the UK this doctrine has declared that the employee does not have the right to challenge the actions of the Crown and the same is applicable to all the civil servant officials appointed by the Crown. The doctrine further states that in case the civil servant was appointed through a contract, even then he/she can be terminated and the contract doesn’t hold any value.
DOCTRINE OF PLEASURE IN INDIA
Under the Constitution of India, Article 310 provides that the civil and defense servants of the Union as well as the members of the All India Service hold that office during the pleasure of the Governor and the President.
The doctrine of pleasure is applicable on every civil servant except Supreme Court Judges, Auditor General, High Court Judges, Members of Public Service Commission and Chief Election Commission. But the doctrine of pleasure is not absolute in India as the Constitution of India has furnished certain measures to penalize the civil servants and other government office bearers, attributable to the increasing corruption cases among them. The Supreme Court, in the case of Purushottam Lal Dhingra v. Union of India[6] explained the contrasted position of the doctrine of Pleasure in India and English Common law.
In the case of Shamshir Singh v. State of Punjab[7]The Supreme Court held that the President and the Governor of the State acts on the aid and advice of the Council of Ministers in executive authority and therefore, the dismissal of civil servants is not a personal function but a power granted by the Constitution itself. Also in the case of Union of India v. J.N.Sinha[8]The Supreme Court held that the doctrine of pleasure is subject to the rules that are mentioned under Article 309 and conditions under Article 311 of the Constitution. In a way, Article 311 acts as a proviso to Article 310.
In India, the notion that the King can do no wrong is not followed and hence, they are subjected to the Constitutional limitations provided under Article 311. According to this article, certain protections are incorporated such as that a subordinate authority cannot dismiss the civil servant and that they are to have a reasonable opportunity of being heard. These provisions provides for considerable faith to the general public about the civil service department of our country and furthermore, the civil servants are also equipped with some guarantee or affirmation that they can perform their obligations without fearing groundless, bigoted and unjust removal from their respective offices as given in the provision stated in the Doctrine of Pleasure.
In India therefore, the relation between the State and the civil servant is not unilateral like the UK, and the servant can sue the act done while the exercise of this doctrine.
The question of who can be safeguarded under Article 311 of the Constitution has undergone multiple discussions and the Supreme Court through the judicial decisions[9] has concluded that under Article 311 the doctrine is not absolute and the following people can claim protection:
· Member of Civil Servant of Union
· Member of Civil servant of State
· An All India Servant
CONCLUSION
It can be observed that even though the makers of the Constitution wanted to incorporate the Doctrine of Pleasure into the Indian Constitution, they did not want to retain its original essence which can be clearly observed through the interpretations and judgments rendered by the Supreme Court of India.
Article 311 of the Constitution has improved the position of the Civil Servants as they have a guarantee of tenure to discharge their lawful duties without fearing expulsion unlike the case in the UK. Further it can be observed that this article is not a limitation of the services of the Civil Servants of the Union of India or the State as it is often misunderstood.
Therefore it can be concluded that the doctrine of pleasure that currently exists in India under Article 310 is not absolute and is subject to constitutional limitations under Article 311. While comparing the two countries, it can be seen that Indian law on this particular concept is better and more refined as it allows the civil servant to challenge any unlawful action in a court of law and also, in case of contractual appointment, the civil servant cannot be terminated on the whims and fancies of the authority they are under.
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[1] Dunn v. R (1896) 1 Q.B.116; (1895-9) All E.R. 907. De Dohse v. R (1896) 1 Q.B.117. Shenton v. Smith (1896) A.C.299 (P.C.).
[2] Gould v. Stuart, (1896) A.C. 575 (P.C)
[3] Shenton v. Smith, 1895 AC 229 (PC)
[4] Union of India v. Tulasiram Patel AIR 1985 SC 1416
[5] Dunn v. Queen 1896 (1) QB 116
[6] AIR 1958 SC 36
[7] AIR 1974 SC 831
[8] AIR 1971 SC 40
[9] S. L. Agrawal v. General Manager, Hindustan Steel Limited 1970 AIR 1150
This article is written by Neha Navaneeth of School of Law, CHRIST Deemed to be University.