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TMI Blog2012 (11) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner appeared for an interview before the Selection Committee for the post of Member (Judicial) in CESTAT. He was selected. On 22-11-2006, the petitioner assumed charge as Member (Judicial) in CESTAT. On 21-11-2007, the petitioner completed the mandatory period of probation of one year under Rule 8(1) of the CESTAT Members (Recruitment and Conditions of Service) Rules, 1987 (hereinafter referred to as 'the said Rules'). No order extending the period of probation was issued. However, the petitioner continued to work as Member (Judicial). As pointed out in the impugned order, the petitioner served under three Presidents, namely, Justice Abichandani, Justice S.N. Jha and Justice R.M. Khandparkar. According to him, he never received any adverse comment from any of them during his tenure of service as a Member (Judicial). According to the petitioner, he was expecting that his probation period would come to an end and he would be confirmed in the post of Member (Judicial). But, he received an order dated 19-11-2009 extending his probation period first upto 21-11-2008 and then further upto 21-11-2009. Because of this, the petitioner came under great stress and tension, as a resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the vigilance angle insofar as the petitioner was concerned. But, out of the blue, on 14-9-2009, the petitioner received a note from the President of the CESTAT annexing therewith a copy of the complaint from the members of the bar about an incident alleged to have occurred in the petitioner's court on 9-9-2009 and also requesting for a report about the incident. The complaint was alleged to be related to misbehavior of the departmental representatives with the members of the bar. The President prepared a report dated 18-11-2009 regarding the incident, which, inter alia, contained the following observations with regard to the conduct of the petitioner :- "15. It must be noted that, whenever any act of misbehavior on the part of the parties or their representatives takes place in the Court, it is essentially for the Presiding officer to administer proper control and to try to defuse the tension, if any, caused on that count and not to retire immediately to the chamber. Abstaining from and abandoning the Court in such a situation and leaving it open and free for all could result in encouraging indiscipline in the Court. Merely because some of the representatives of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (1) In the case of a person appointed as a technical or a judicial member from any post under the Union or a State, unless such a person is confirmed, the Central Government may at any time revert him to his parent post without assigning any reason, after giving him one month's notice of such reversion and in case a technical or a judicial member wishes to revert to his parent post, he shall be required to give one month's notice to the Central Government. Provided that in case such a technical or judicial member has already superannuated according to the relevant rules of his parent post, the appointment may be terminated by the Central Government at any time without assigning any reason after giving him one month's notice of such termination and in case such technical or judicial member wishes to resign, he shall be required to give one month's notice to the Central Government. (2) In case of a person appointed as a judicial member directly from the Bar, unless he is confirmed, the appointment may be terminated by the Central Government at any time without assigning any reason after giving him one month's notice of such termination and in case such judicial member wishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services." (Underlining added) 8. From the extracted portion, it is clear that when the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the regulations for that purpose, then the termination has to be brought about in that manner. It, therefore, follows that if termination is brought about in a manner which is not as per the prescribed procedure, then the termination would be bad in law. In this backdrop, the learned counsel for the petitioner submitted that the manner of termination is clearly provided in Rule 9(2) of the said Rules which requires the giving of 'one month's notice. Since the said notice was not given to the petitioner, the termination would be bad in law. 9. The learned counsel for the petitioner also placed reliance on the Supreme Court decision in the case of Secretary, Akola Taluka Education Society v. Shivaji : 2007 (9) SCC 564, which, although it pertained to permanent employees, indicated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uity in a stipulation between employer and employee imposing a restriction on the latter, it ought to receive the narrower construction rather than the wider-the employed ought to have the benefit of the doubt. It would not be following out that principle correctly to give the stipulation a wide construction so as to make it illegal and thus set the employed free from all restraint. It is also a settled canon of construction that where a clause is ambiguous a construction which will make it valid is to be preferred to one which will make it void."' 13. Although the observations are in the context of covenants or agreements between employers and employees, the same principles would apply where the relationship is engrafted in the form of rules. The principle that is discernible from the above mentioned decision of the Supreme Court is that in employer-employee contracts, there is inequality of bargaining power between the parties and, as a result when covenants or agreements between such employers or employees are under the scanner, and if a doubt arises as to the construction of any of the provisions of such covenants of agreements, the benefit of that doubt must go to the em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er may be discharged from service at any time during the period of probation without assigning him any reason. These are the substantive provisions with regard to the probation period of a member and his discharge from service during the period of probation. It only makes clear what is otherwise a well-settled principle that during the probation period, the service of an employee can be terminated without assigning any reason. 16. On the other hand, Rule 9 speaks of 'reversion or termination of the service of members'. Rule 9(1) deals with the case of a person appointed as a technical or a judicial member from any post under a Union or a State. It provides that the services of such a person, unless he is confirmed, may be brought to an end and he could be reverted to his parent post without assigning any reason after giving him one month's notice of such reversion. The proviso to Rule 9(1) stipulates that where such a technical or a judicial member has already superannuated according to the Rules of his parent post, his appointment may be terminated by the Central Government at any time without assigning any reason after giving him one month's notice of such termination. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of probation and, if the probationer member happens to be a judicial member directly appointed from the bar, then his services can be terminated only after giving him one month's notice. 19. Therefore, we agree with the submission made by the learned counsel for the petitioner that if no notice had been given in terms of Rule 9(2) of the said Rules, the termination/discharge order dated 20-11-2009 would be bad-in- law. We do not agree with the submission made by the learned counsel for the respondent that Rule 8(3) would apply only during the three year period of probation and that Rule 9(2) would apply only to a situation of an unconfirmed member beyond the period of three years. There is no such indication in the rules. In any event, we must not forget the salutary principle of interpretation that when there is any doubt, the benefit must go to the employee. 20. Because of the view we have taken on this aspect of the matter, it would not be necessary for us to examine the other three arguments raised by the learned counsel for the petitioner. 21. As a result, the impugned order passed by the Tribunal as also the 'discharge' order dated 20-11-2009 are set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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