NEW DELHI , JULY 30, 2012: THIS writ petition is against the order dated 09.12.2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi. The petitioner is aggrieved by the fact that his said original application, which had been filed challenging the termination of probation order dated 20.11.2009, was dismissed.

The petitioner was a practicing advocate in the Calcutta High Court as well as before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) for about 20 years mainly dealing with the customs, excise and service tax matters. On 22.04.2006, the 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 ('the 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 result of which, he tendered his resignation from the post of Member (Judicial) on 20.11.2009. On that very day, the order dated 20.11.2009 was issued, whereby the petitioner was discharged from his service.

The counsel for the petitioner submitted that the order of discharge, which virtually amounted to termination, was bad in law. First of all, he submitted that it smacked of arbitrariness and was the product of malice in law. Secondly, the counsel for the petitioner submitted that the discharge order was punitive in nature inasmuch as it was stigmatic and, therefore, it was essential that an enquiry under Article 311 of the Constitution ought to have been undertaken. Thirdly, he submitted that the relevant rules and, in this case, Rule 9(2) of the said Rules, required the giving of one month's notice prior to termination. That notice was admittedly not given and, therefore, the termination was bad. Lastly, he submitted that by virtue of operation of Rule 8 of the said Rules, the petitioner could be deemed to have been confirmed.

The High Court observed,

It is clear that Rule 8 specifically speaks of probation. It is also clear that Rule 8(1) stipulates that every person appointed as a member shall be on probation for a period of one year. By virtue of sub Rule (2) of Rule 8, the Central Government is empowered to extend the period of probation for a further period of one year at a time so that the period of probation in the aggregate does not exceed three years. Rule 8 (3), which is important for our purposes, stipulates that a member 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.

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, in the said Rules, which also form part of the terms of appointment which govern the petitioner's period of probation, it is clear that during probation, a member of CESTAT may be discharged from service at any time without assigning any reason. It is also clear that a person, who is not confirmed as a judicial member and, if he is directly appointed from the bar, would have to be given one month's notice if his services are to be terminated. Of course, here, too, there is no requirement for assigning any reason. The only requirement being that one month's notice must be given. Qualitatively and substantively, there is no difference between Rule 8(3) and Rule 9(2), both of which speak of discharge / termination of the services of a member without assigning any reason during the probation period. Rule 8(3), if we examine the provision closely, deals with all members of CESTAT. No distinction between technical members or judicial members is made in that rule.

The case of the technical members and judicial members, who have come from any posts under the Union or the State, are dealt with differently inasmuch as instead of termination / discharge, they would suffer reversion. It is only when such a person, by virtue of operation of the proviso, has already superannuated according to the relevant rules of his parent post, that he would suffer termination. In the case of a judicial member appointed directly from the bar, there can be no question of any reversion and, therefore, his services can only be terminated. It is for this reason that while Rule 8(3) stipulates that the services of a member may be 'discharged' at any time during the period of probation without assigning him any reason, the individual cases of different types of technical and / or judicial members are specifically dealt with under Rule 9 and the expressions 'reversion' and 'termination' are used.

In a sense, Rule 9(2), apart from prescribing the substantive provisions with regard to termination during probation, also prescribes the procedure, whereby such termination is to be carried out. Therefore, when the two provisions, i.e., Rule 8(3) and Rule 9(2) are read harmoniously, there is no conflict between them. The only interpretation that follows upon a conjoint reading of the said two rules is that the services of a probationer member can be terminated at any time during the period 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”.

Therefore, the High Court agreed with the submission made by the 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. The High Court did not agree with the submission made by the 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.

As a result, the impugned order passed by the Tribunal as also the 'discharge' order dated 20.11.2009 are set aside.

(See 2012-TIOL-560-HC-DEL-CESTAT)