TaxTMI 
TaxTMI 
2012 (12) TMI 578
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.... Petition No.27821 of 2012 has been filed by Pradip Kumar challenging the judgment of the High Court, in so far as the said judgment limits the relief granted to him only to the extent of quashing of the order passed by the CAT and the order dated 20th November, 2009, whereby he was discharged from service as Member [Judicial] in the Customs Excise and Service Tax Appellate Tribunal ["the CESTAT"]. 3. We will firstly take up the Civil Appeal No.......... of 2012 arising out of Special Leave Petition No.34671 of 2012, filed by Union of India, for consideration. 4. The respondent was a practising Advocate in the Calcutta High Court as well as before the CESTAT for over twenty years mainly dealing with the customs, excise and service tax matters. On 22nd April, 2006 he appeared for an interview before the Selection Committee for the post of Member [Judicial] in CESTAT. On being duly selected, he assumed charge as Member [Judicial] in the CESTAT on 22nd November, 2006. Service conditions of the Member of the CESTAT are governed by Customs, Excise and [Service Tax] Appellate Tribunal Members [Recruitment and Conditions of Service] Rules 1987 [hereinafter referred to as t....
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....al provision regulating the period of probation of members Technical or Judicial, irrespective of their source of recruitment. Rule 9 (1) and (2), on the other hand, deals with Technical or Judicial Members, recruited from two different sources. Rule 9(1) deals with members, who have been appointed whilst already in the service of the Central Government. In the case of such Members a provision is made in Rule 9(1) to enable the Central Government to revert him to his parent post without assigning any reason, unless such a person is confirmed. Such Member can be reverted to his parent post after giving one month's notice of such reversion. If such a Member wishes to revert to his parent post, he is required to give one month's notice to the Central Government. Under the proviso, services of such member can be terminated by giving one month's notice, without assigning any reason, if he has already superannuated under the relevant rules of his parent post. Such member has a corresponding right to resign by giving one month's notice. We are, however, concerned only with Rule 9(2) which provides that in the case of a person appointed as Judicial Member directly from the Bar, unless he i....
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....nbsp; ORDER NO.5 OF 2009 In pursuance of rule 8(3) of the Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules 1987, the President hereby discharges forthwith Sh. P.K. Das, Member (Judicial) in Customs Excise & Service Tax Appellate Tribunal from service. 2. By order and in the name of the President. Sd/- ( Victor James ) Under Secretary to the Govt. of India To, Sh. P.K. Das, Member (Judicial) CESTAT, West Block No.2 R.K. Puram, New Delhi Copy to: 1. President, Customs, Excise & Service Tax Appellate Tribunal, New Delhi. 2. Registrar, Customs Excise & Service Tax Appellate Tribunal, New Delhi. 3. Establishment Officer, Department of Personnel & Training North Block. 4. Pay and Accounts Officer, Department of Revenue 5. Notification Folder Sd/- ( Victor James ) Under Secretary to the Govt. of India" It appears that thereafter by letter dated 23rd October, 2009 the respondent withdrew his resignation under Rule 9(2), which was well within the prescribed period of one month. 7. During the period of his service the respondent had served under three Presidents, CEST....
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....m and abandoning the court in such a situation and leaving it open and free for all court result is encouraging indiscipline in the court. Merely because some of the representatives of the parties start raising voice or make allegations against the Bench, it would not be proper to abandon the court functioning and to retire to chamber. Rather the Presiding Officer has to try to control such situation by use of administrative acumen. In the case in hand, there does not appear any efforts made by the Presiding Officer in that regard." The respondent claims that his services were terminated as a direct consequence of the complaint made by the representatives of the Bar and the report of the President, CESTAT. 9. Aggrieved by the aforesaid order, the respondent challenged the same before the CAT by way of OA No.3544 of 2009 on 7th December, 2009. On 9th December, 2009, the OA was dismissed by the CAT. The CAT rejected the submission that the respondent was deemed to be confirmed upon completion of one year period of probation. In any event it seems respondent had dropped the contention regarding the deemed confirmation after some arguments initially and upon considering....
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....r three years or more. 11. Nonetheless the order of discharge cannot be upheld, as it is stigmatic and punitive in nature. It is a matter of record that during three years of service no order was issued extending the period of probation of the respondent. He completed the mandatory period of probation on 21st November, 2007, therefore, it was expected of the department to take a decision about the performance of the respondent within a reasonable period from the expiry of one year. It is also a matter of record that the respondent continued in service without receiving any formal or informal notice about the defects in his work or any deficiency in his performance. This Court, in the case of Sumati P. Shere Dr. Vs. Union of India & Ors.[(1989) 3 SCC 311], emphasised the importance of timely communication of defects and deficiencies in performance to a probationer, so that he could make the necessary efforts to improve his work. Non-communication of his deficiencies in work would render any movement order of such an employee on the ground of unsuitability arbitrary. In Paragraph 5 of the judgment, it is observed:- "5. We must emphasise that in the relationship of master an....
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....not merely the motive for the said decision but was clearly the foundation of the same." 13. In our opinion, there is clearly a live nexus between the decision to discharge the respondent vide order dated 19th November, 2009; the disturbance caused by the members of the Bar in the Court of the respondent and his leaving the Bench and retiring to his Chamber. The report of the President leaves no manner of doubt that the respondent had been condemned unheard on the basis of the aforesaid incident and the report of the Chairman, CESTAT dated 18th November, 2009. The order of discharge, being based upon the report of the President, is clearly stigmatic and could not have been passed without giving an opportunity to the respondent to meet the allegations contained in the report of the President, CESTAT. We may notice here the observations made by this court in the case of Mahaveer C. Singhvi [supra]: "46. As has been held in some of the cases cited before us, if a finding against a probationer is arrived at behind his back on the basis of the enquiry conducted into the allegations made against him/her and if the same formed the foundation of the order of discharge, the ....