CESTAT rules probationary members can practice, offer cancellation premature. Customs Act applies post-confirmation.

The Tribunal ruled in favor of the applicant, holding that a probationary member of CESTAT discharged during probation is not debarred from practicing before the Tribunal. The Tribunal found the respondent's action of canceling the offer of appointment to be premature and legally unsustainable. The Tribunal clarified that Section 129(6) of the Customs Act, 1962, applies only to confirmed members who cease to hold office after confirmation, not to probationary members. The impugned letters were quashed, and the Tribunal allowed the OA with directions for subsequent actions.

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Issues Involved:
1. Interpretation of "on ceasing to hold office" in Section 129(6) of the Customs Act, 1962.
2. Whether a probationary member of CESTAT holds office as a confirmed member.
3. Legality of the respondent's action in issuing the letter dated 6-12-2012 canceling the offer of appointment.
4. Applicability of Section 129(6) of the Customs Act, 1962 to members discharged during probation.

Detailed Analysis:

1. Interpretation of "on ceasing to hold office" in Section 129(6) of the Customs Act, 1962:
The Tribunal examined the phrase "on ceasing to hold office" used in Section 129(6) of the Customs Act, 1962, to determine if it applies to members discharged during probation. The Tribunal emphasized that a statute must be construed according to the intent of the Legislature. The Tribunal concluded that the phrase "hold office" should be interpreted based on the context and purpose of the statute. The Tribunal noted that the intention behind Section 129(6) was to debar confirmed members from practicing before the Tribunal to maintain the dignity of the office and avoid bias.

2. Whether a probationary member of CESTAT holds office as a confirmed member:
The Tribunal referred to various judgments to conclude that a probationary member does not acquire a substantive right to the post and cannot be said to hold office in the same capacity as a confirmed member. The Tribunal cited the case of Purshotam Lal Dhingra v. UOI and Triveni Shankar Saxena v. State of UP, which clarified that a probationer does not acquire a lien on the post and their appointment is of a transitory character. Therefore, a probationer cannot be considered to hold office in the same manner as a confirmed member.

3. Legality of the respondent's action in issuing the letter dated 6-12-2012 canceling the offer of appointment:
The Tribunal found that the respondent's action in issuing the letter dated 6-12-2012 was precipitate and unsustainable in law. The Tribunal noted that the applicant had given his unconditional willingness to accept the offer of appointment and sought clarification on the applicability of Section 129(6) of the Customs Act, 1962. The Tribunal held that seeking clarification cannot be construed as a conditional acceptance of the offer. The Tribunal emphasized that the respondent should not have overreached the judicial proceedings by canceling the offer of appointment.

4. Applicability of Section 129(6) of the Customs Act, 1962 to members discharged during probation:
The Tribunal held that Section 129(6) of the Customs Act, 1962, applies only to confirmed members who cease to hold office after their confirmation. The Tribunal concluded that the phrase "on ceasing to hold office" does not include members discharged during probation. The Tribunal noted that a probationer does not acquire a lien on the post and cannot be said to cease holding the office in the same manner as a confirmed member. The Tribunal also referred to Rule 13(E) of the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963, which debars confirmed members from practicing before the Tribunal after retirement, but not probationers.

Conclusion:
The Tribunal quashed the impugned letters dated 13-9-2012 and 6-12-2012, holding that a probationary member of CESTAT discharged from service during the probation period is not debarred from practicing before the Tribunal. The Tribunal allowed the OA and directed that consequences would follow.

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