Dismissal may be a blessing in disguise for treasury scamster

Thiruvananthapuram: The government decision – summarily dismissing the prime accused in treasury fraud case, M R Bijulal, from service – raises several legal questions and a concern about its intention.
The hurdle, when such a decision is taken, is the Article 311 (2) of the Constitution, that says that ‘ no person who is the member of a civil service of the union or is an all-India service or a civil service of the state or holds a civil post under the union or a state shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges”.
However, the proviso of the Article 311 also says that the provisions of 311(2) will not apply if the person is removed or reduced in rank on the ground of conduct, which has led to his conviction on a criminal charge. It also says that if the president or the governor is satisfied that in the interest of state security, provisions of the article will not apply.
In this case, not even a chargesheet has been submitted as investigation is progressing. “Only the president and the governor have been given such powers. The governor can dismiss an employee summarily, but that can be challenged in court which the government will have to justify. Such dismissals are applicable only if a security angle is involved,” said former law secretary B G Harindranath. No such security angle has been cited by the government.
Article 311(2) proviso (b) also empowers the authority to dismiss or remove a person on its satisfaction for some reason to be recorded in writing that it is not reasonably practicable to hold an inquiry. In Union of India versus Tulsiram Patel (1985), case it has been held by a constitution bench that if the proviso (b) is applied on an extraneous ground or a ground having no relation to the situation envisaged in that clause, the action in so applying would be mala-fide, and, therefore, void.
Government sources said that the decision to summarily dismiss Bijulal may backfire in court, unless he is convicted or government is able to prove that the crime he committed involves threat to state security. It is interesting that finance department decided to act in a manner that will ultimately help the accused, when criminal investigation has not ruled out the involvement of higher-ups in the crime, sources added.
In multiple cases, SC had ruled against legally unsound dismissals. In M Ramanatha Pillai versus State of Kerala (1973) case, SC clearly said that the Article 311 will apply to both permanent and temporary posts in government. Also, in Superintendent of Post Offices versus PK Rajamma and others (1977), SC held that even an ‘extra departmental agent’ holds a civil post, and his dismissal or removal would be invalid if there was non-compliance with the Article 311 (2).
After a high-level meet on Monday, finance minister TM Thomas Isaac announced the government decision. He said that since 1995, eight employees have been dismissed in this manner of which three dismissals were during the time of the present government.