TMI Blog2014 (3) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent that even after demitting office as a confirmed Member (Judicial) he can practice in CESTAT. His case was on demitting office as a probationer, the bar under Section 129(6) would not be applicable. A Member demitting office while on probation does not retire whereas a Member who is confirmed, retires on attaining the age of superannuation, unless he resigns. The rules do recognize Member on probation and a Member who is confirmed as two distinct separate classes. The provision in question must be read to mean that the bar would not be applicable to a Member who demits the office while on probation. - Petition dismissed. - W. P. (C) No. 7112/2013, W. P. (C) No. 7114/2013 - - - Dated:- 2-12-2013 - Pradeep Nandrajog And V. Kameswar Rao,JJ. For the Petitioner : Mr. Rajeeve Mehra, ASG instructed by Mr.Ankur Chibber and Mr.Aashish Gumber, Advocate For the Respondent : Mr.Atul Nanda, Sr.Advocate instructed by Ms.Rameeza Hakeem and Mr.Parinay T.Vasandani, Advocates JUDGMENT V. Kameswar Rao, J. 1. By a common order dated February 27, 2013 the Central Administrative Tribunal has quashed two letters dated November 12, 2012 and December 06, 2012 sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission that my posting in Chennai, will disrupt my family to a great extent. I along with my wife and three children are permanently settled in Indore having my own house. My three children are 13 years, 11 years and 9 years of age are studying since beginning in the schools at Indore. They are acclimatized with the prevailing condition and environment of Indore. My wife being an advocate is also practicing and running her own office at Indore. Therefore, it will not be possible for me to shift my family from Indore to any other place. Due to these reasons I am required to visit Indore very frequently to take care of my family. In these circumstances, if, I am posted in Chennai, it will not be possible to visit Indore in quick intervals, mainly because there is no direct regular train for Chennai-Indore-Chennai, and the travelling time is more than thirty hours. In view of above difficulties, I humbly request that my posting may kindly be made in any nearly place from Indore, preferably in Mumbai, so that, I would be also to pay visit to Indore, frequently by making overnight train/bus journeys on Holidays. It may also kindly be noted that during my past practice I do not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther side during the period of probation. I further like to refer to Section 129(6) of Customs Act, 1962 which is reproduced below: (6) On ceasing to hold office, the President, Vice President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal. In the above provision, it is not explicit that the restriction for appearing is applicable to those members also who cease to hold office during the probation period. However it is pertinent to mention here that in Rule 9 of Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Condition of Service) Rules, 1987 certain provisions has been given in case if a person who is appointed as technical or judicial member from any post under the Union or State during the period of his probation he shall be reverted back to his original post. Rule 9 reads as under : Rule 9. - Reversion or termination of the service of members. (1)-In 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 giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Tribunal (CESTAT). It is also requested to kindly inform me the Authorized Hospital in Indore (MP) to get my medical fitness test done in order to comply with the requirement of any appointment . 7. The petitioners responded vide letter dated November 12, 2012 informing the respondent that the words on ceasing to hold office is applicable to all types of cessation; whether it is retirement or resignation or discharge during probation or by any other way. 8. The respondent challenged the letter dated November 12, 2012 seeking a direction to the petitioners to allow him to join as Member (J) in CESTAT without being subjected to embargo of Section 129 (6) of the Customs Act, 1962 and Central Excise Act, 1944 (hereinafter referred as Act) in the event of his ceasing to hold office as Member (J) before the expiry of period of probation. This was as per Original Application No.4006/2012. 9. During the pendency of Original Application No.4006/2012 the petitioners issued a letter dated December 12, 2012 to the respondent withdrawing the offer of appointment on the ground that despite sufficient time granted to the respondent his unconditional willingness to accept th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 991 State of Bombay and Another vs. Sardar Venkat Rao Krishna Rao Gujar wherein the Court while interpreting the word building viewed that the observations must be considered in the context of the Act which was being construed and in the context in which they were made. (ii) AIR 1979 SC 193 Chief Justice of Andhra Pradesh Anr. vs. L.V.A. Dikshitulu Anr. wherein the Court held that the primary principle of interpretation is that a constitutional or statutory provision should be construed according to the intent of they that made it . The Court further held that if the words used in the provision are imprecise or ambiguous then the Court may go beyond the rigid rules of literal interpretation and take aid of other well recognized rules of construction such as its legislative history, basic scheme and framework of the statute as a whole. Furthermore, the Court held that where two alternative constructions are possible, the Court must choose harmonious rule of interpretation so as not to undermine or defeat the basic scheme of the statute. (iii) AIR 1989 SC 644 Collector of Central Excise, Bombay-1 Anr. vs. M/s Parle Exports (P) Ltd. and AIR 1985 SC 660 K.Ramathan vs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son who has acquired a lien on it. Further, while appreciating the intention of legislation incorporating Section 129 (6) of the Act, the Tribunal referred to an order of ITAT Delhi ( B Bench) Special Bench reported as (2009)120 ITD wherein it was held that Members of ITAT are debarred from appearing before ITAT only after retirement from service of the Tribunal and such conditions are not made applicable to a member discharged from service during the period of probation. Thus, on the basis of the aforesaid decisions the Tribunal, with regard to issues (i) and (ii), held that a member of the Tribunal discharged from service during probation period may not be debarred from practicing before it and provisions of Section 129(6) of the Act would be applicable only to such members who cease to hold office only after their confirmation. It was further held that the phrase on ceasing to hold office as Member used in section 129 (6) of the Act would not include discharge of probationer and only a Member who is confirmed to hold office in such capacity can be said to have ceased to hold the same. Since a probationer does not acquire any lien on the post of Member before its confirmation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by speed post, wherein it was requested that, in view of the issuance of notice by this Hon ble Tribunal in OA 4004/2012, the time limit for conveying his unconditional acceptance to the offer of appointment as Member (Judicial) be extended till disposal of the OA by this Hon ble Tribunal or by any higher forum. A copy of the said communication dated 4.12.12, by the applicant to the respondent, is annexed hereto as Annexure A-8. 22. Mr.Rajeeve Mehra, learned Additional Solicitor General also relied upon the judgment of this Court reported as 159 (2009) DLT 326 P.C.Jain v.Union of India Anr.(connected writ petitions). His submission also centered around Article 220 of the Constitution of India to urge that in the absence of any express provision in Section 129(6) of the Act excluding Members demitting office while on probation, such Member would also be barred from practising in the CESTAT. 23. Mr.Atul Nanda, learned Senior Counsel appearing for the respondent would submit that there is a fallacy in the submission made on behalf of the petitioners inasmuch as a distinction has to be carved out between the terms and conditions in an offer of appointment with a request for a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Service and has held a post in Grade I of that service or any equivalent or higher post for at least three years, or who has been an advocate for at least ten years. Explanations: For the purposes of this sub-section, (i) In computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law; (ii) In computing the period during which a person has been an advocate, there shall be included any period during which the person has held a judicial office, or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an Advocate. (2A) A technical member shall be a person who has been a member of the Indian Customs and Central Excise Service, Group A, and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years. (3) The Central Government shall appoint (a) a person who is or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wishes to resign, he shall be required to give one month s notice to the Central Government . Rule 16 -. Age of Superannuation. Subject to the provisions of rule 10, a member shall hold office until he attains the age of sixty-two years. Rule 17 - Retirement benefits. (1) A member, who at the time of his appointment as a member was holding a pensionable post under a Government in a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .K.Bajpai s case (supra) would not be of relevance while deciding the issue raised by the respondent before the Tribunal. In other words, the bar under Section 129(6) would be applicable to a Member holding the post on substantive basis. This we say so for the reason, it is not the case of the respondent that even after demitting office as a confirmed Member (Judicial) he can practice in CESTAT. His case was on demitting office as a probationer, the bar under Section 129(6) would not be applicable. 28. Now coming to the arguments advanced by the learned counsel for the parties, in so far as the submission of Mr.Rajeeve Mehra, learned ASG on the conclusion of the Tribunal regarding the acceptance given by the respondent to the terms and conditions in the offer of appointment, is concerned, we note that the respondent was to be on probation for a period of one year extendable by one more year. The terms of appointment also reveal that the appointment would continue till the respondent was to attain the age of 62 years. It is also noted that till the respondent was on probation his appointment was liable to be terminated by the Central Government at any time without assigning any re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice. An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law. It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punitive in nature. The Court further held that in determining the true nature of the order the Court should apply two tests namely: (1) whether the temporary government servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary government servant is by way of punishment. It must be borne in mind that a temporary government servant has no right to hold the post and termination of such a Govt. servant does not visit him with any evil consequences. The evil consequences as held in Parshotam Lal Dhingra's case (supra) do not include the termination of services of a temporary government servant in accordance with the terms and conditions of service. The view taken by the Constitution Bench in Dhingra's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in the State of Orissa v. Ram Narayan Dass, (1961) 1 SCR 606; R.C. Lacy v. The State of Bihar C.A. No. 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah v. The Union of India, (1964) 5 SCR 190; Jagdish Mitter v. The Union of India, (1964) AIR SC 449; A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
