TaxTMI 
TaxTMI 
2013 (8) TMI 253
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.... from the date of entry upon the office, the offer was made for appointment until the age of superannuation, i.e. 62 years. With reference to OM dated 13-9-2012 and corrigendum dated 19-9-2012 received by him on 19-9-2012 and 25-9-2012 respectively, the applicant sent communication dated 27-9-2012 to Under Secretary, Govt. of India, Ministry of Finance, Department of Revenue, North Block, New Delhi accepting the appointment as Member (J) in CESTAT. However, in the said communication, he made a request for change of his posting from Chennai to Mumbai. In response, thereto, the respondent vide their letter No. A. 12026/1/2011-Ad.IC (CESTAT) dated 8-10-2012 apprised the applicant that his request for posting at Mumbai or at any other place near Indore had not been accepted and requested him to convey his unconditional willingness to accept the offer of appointment as Member (Judicial) within a period of 10 working days from the date of receipt of said communication, failing which action for cancellation of offer of appointment could be initiated without further notice. Thus, the applicant sent a letter dated 25-10-2012 to the Under Secretary, Government of India, Ministry of Finance (....
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....cise Act, 1944] to debar a person who is discharged from service as Member (CESTAT) during the period of probation from appearing before CESTAT. (iv) When the person appointed as Technical or Judicial (Member) from other source such as services of Union or State Government, they are entitled to revert back to their parent post on giving one month's notice. The Member of the Bar who joins the CESTAT as Judicial (Member) on probation should not be deprived of such privilege and they should also be entitled to resume their previous position with all privileges including that of appearing before CESTAT as Advocate. (v) Even in the case of Hon'ble Judges of High Court, Article 220 of the Constitution of India plays an embargo on their right to practice after ceasing to hold office as Judge from the same Hon'ble High Court only when they are permanent Judges and not before their acquiring permanency by way of confirmation. (vi) The applicant is specialist in the field of Customs, Excise and Service Tax and has been practicing as an Advocate in said field for over 15 years. (vii) The Apex fact finding judiciary/judicial authority in a Central Excise and Service Tax matter bein....
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....en for the most imaginative Legislature to forestall exhaustively situation and circumstances that may emerge after enacting a statute where its application may be called for. The problem of interpretation is a problem of meaning of words and their effectiveness as medium of expression to communicate a particular thought. A word is used to refer to some object or situation in the real world and this situation has been assigned a technical name referent. "Words and phrases are symbols that stimulate mental references to referents". But words of any language are capable of referring to different referent in different context and times like in the present case the phrase "hold office" may be interpreted as being confirmed member or probationer as referent. In ordinary conversation or correspondence, it is generally open for parties to obtain clarification if the 'referent' is imperfectly communicated. The position is, however, different in the interpretation of statute. A statute as enacted cannot be explained by the individual opinion of the legislator, not even by a resolution of entire Legislature. After the enacting process is over, the Legislature becomes functus officio so far a....
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....rovision is within the interpretative jurisdiction of the courts. This is not legislation in strict sense but application and is within the court's province. 4. In State of Bombay and Another v. Sardar Venkat Rao Krishna Rao Gujar (AIR 1966 SC 991), Hon'ble Supreme Court while interpreting the word building viewed that the expression building does not mean everything that can by any means be described as built; it means building is a more narrow sense than structures, because there are other structure of a limited class which under the terms of sub-section may also be taken into consideration. In the said case, Hon'ble Supreme Court interpreted the word building as an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric, such as a house, a store, a church, a shed. Relevant excerpts of said judgment read as under :- "It is quite clear that the expression buildings does not mean everything that can by any means be described as built; it means buildings in a more narrow sense than structures, because there are other structures of a limited class which under the terms of the sub-section may also....
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....nstruction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction, such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation. 64. Where two alternative constructions are possible, the Court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living integrated organism, havi....
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....at the cost of public, exchequer." 7. In K. Ramanathan v. State of Tamil Nadu and Another (AIR 1985 SC 660) it could be viewed that the word 'regulation has no fixed connotation and its meaning differs according to the nature of the things to which it is applied. Para 24 of the said reads as under :- "24. We find no lawful justification for giving a restricted meaning to the word 'regulating' in Cl. (d) of sub-s. (2) of S. 3 of the Act as not to take in 'prohibiting'. In State of Tamil Nadu v. M/s. Hind Stone - (1981) 2 SCC 205 = (AIR 1981 SC 711), Chinnappa Reddy; J. referred with approval the observations of Mathew, J. in K. Krishnan v. State of Tamil Nadu - (1975) 2 SCR 715 = (AIR 1975 SC 583) laying down that the word 'regulation' has no fixed connotation and that its meaning differs according to the nature of the thing to which it is applied. The learned Judge also observed : "In modern statutes concerned as they are with economic and social activities, 'regulation' must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in a welfare State. It was pointed out by....
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.... of appointment on trial. In the said case, the Hon'ble Supreme Court ruled 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 Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Paras 18 and 19 of the judgment read as under :- "18. The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a per....
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....l 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 Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any Lime. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the servant so appointed acquires a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or the person so ....
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....y or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. In the said case, it is also viewed that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier. Relevant excerpts of said judgment read as under :- "17. There cannot be any controversy that unless the appellant shows to the satisfaction of the Court that he was having a lien on the post of Lekhpal, he cannot make a grievance of any violation having been perpetrated under the above said rules. The word "lien" is defined in Rule 9(13) of the above said rules as follows : "Lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively." 18. We shall now examine what the word 'lien' means. The word 'lien' originally means "binding" from the Latin ligamen. Its lexical meaning is "right to retain". The word "lien" is now variously described and used under different context such as 'contractual ....
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....Cl. 14 means the title of a railway employee to hold substantively a permanent post to which he has been permanently appointed. According to this definition, therefore, the appellant and respondents 4 to 8 were entitled to, with effect tram August 15, 1947 (when all of them were made permanent), a lien on the respective posts to which, as from that day, they were confirmed and made permanent." 25. A learned single Judge of the Allahabad High Court in M.P. Tewari v. Union of India, 1974 All LJ 427 following the dictum laid down in the above Paresh Chandra's case in distinguishing the decision of this Court in P.L. Dhingra v. Union of India, AIR 1958 SC 36 has observed that "a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier", with which view we are in agreement". Also in Ali M.K. & Ors. v. State of Kerala and Ors (AIR 2003 SC 4006) it is held that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier. Para 25 of the judgment reads as under :- "A faint attempt was made to submit that the non-official respondents had lost the....
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....and activities of the appellant are generally under scrutiny and on the basis of his overall performance a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. In the present case, in the course of adjudging such suitability it was found by the respondents that the performance of the appellant was not satisfactory and therefore he was not suitable for the job. The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were lo....
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...., while a maximum period of probation has been indicated, yet the question of confirmation of such a probationer is dependent upon his fitness for such confirmation and his passing of the departmental examination by the higher standard, as prescribed. It necessarily stipulates that the question of confirmation can be considered at the end of the period of probation, and on such consideration if the probationer is found suitable by the appointing authority and he is found to have passed the prescribed departmental examination then the appointing authority may issue an order of confirmation. It is too well settled that an order of confirmation is a positive act on the part of the employer which the employer is required to pass in accordance with the Rules governing the question of confirmation subject to a finding that the probationer is in fact fit for confirmation. This being the position under sub-rule (1) of Rule 24, it is difficult for us to accept the proposition, broadly laid down in the case of Dayaram Dayal and to hold that since a maximum period of probation has been provided thereunder, at the end of that period the probationer must be held to be deemed to be confirmed on ....
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....ry of the maximum period of probation indicated in sub-rule (l), as has been observed by this Court in the case of Dayaram Dayal (supra) also and which is in conformity with the decisions of this Court in the case of Shamsher Singh (supra). Sukhbans Singh (supra), G.S. Ramaswamy (supra) and AkbarAli Khan (supra). Rule 24 on a plain grammatical meaning being given to the words used therein does not provide for a deemed confirmation on expiry of the maximum period of probation, and on the other hand it contemplates a positive order of confirmation to be passed by the Appropriate Authority, if the Authority concerned is satisfied about the fitness of the probationer for confirmation, and if the probationer has passed the departmental examination, as prescribed. Mere continuance of the probationer after considering his case of confirmation during the period of probation and finding him unsuitable for confirmation by the decision of the Full Court, by no stretch of imagination can be construed to be a confirmation by implication, as was held by this Court in the case of Dharam Singh (supra) and that can never be the intention of the Rule Making Authority. If the Full Court would not hav....
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..... 11-5-2007. Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963 were amended by Notification GSR 389(E) dated 3-6-2009 inasmuch as Rule 13E was inserted therein. In terms of the said Rule, the President, Senior Vice-President, Vice-President and Members of Tribunal were debarred from practicing before it after the retirement from service. For easy reference, said rule is extracted herein below :- "13E. The President, the Senior Vice-President, the Vice-President and the Member of the Tribunal shall not practice before the Tribunal after retirement from the service of the Tribunal." After detailed deliberation, the Special Bench of ITAT viewed that only such Member of the Tribunal who joined after 3-6-2009, i.e. in terms of the amended rules could be debarred from appearing ITAT and not the others. Thus, in terms of the aforementioned rules applicable to Members of ITAT, they are debarred from appearing before ITAT only after retirement from service of the Tribunal. Such conditions are not made applicable to a member discharged from service during the period of probation. Thus, from the stand taken by UOI before ITAT in Concept Creations ....
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....erveners. Accordingly, Rule 13E may not disqualify such persons from practicing under Section 288 of the I.T. Act. The intention of Rule 13E, according to him, was to avoid any kind of perception of a litigant that the decision in any controversy could be influenced by appearing of a retired Member of the Tribunal. He relied upon the affidavit on merit and pleaded that the ratio of decision in the case of P.C. Jain (supra) may still be made applicable to all the cases including the cases of resigned Members." It may not be against the dignity of office of Members of CESTAT if a person who is not found suitable to be confirmed in said office is allowed to practice before it. Similarly albeit a member who retired from service on attaining the age of superannuation can be said to have got opportunity to interact and develop proximity with President, Senior Vice-President, Vice-President and other Members of the Tribunal as well as its staff, but it may not be so said in respect of a person who is discharged from service on account of non-completing the initial period of probation successfully. During the initial period of probation a member may not get an opportunity to develop his....
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....gnificantly, in two observations in paragraphs 41 and 45 of the judgment, the Supreme Court noticed the distinction between an additional Judge and a permanent Judge of the High Court. In paragraph 41, the Supreme Court observed as follows : "41. An Additional Judge holding a tenure post stricto sensu does not retire. It is one thing to say that having regard to he constitutional embargo he would not hold office after he attains the age of 62 years but it is another thing to say that for all other purpose, he can be equated with a sitting Judge". Similarly, in paragraph 45, the Supreme Court noted that an Additional Judge, despite being a former Judge, "is entitled to practice in the same High Court which other Judges are not permitted to do." 16. Though Permanent Judges and Additional Judges of the High Court perform the same duties and functions, there is yet a cardinal distinction in the Constitution in the tenure of an Additional Judge as distinct from that of a Permanent Judge. A Judge of the High Court is a Permanent Judge on the basis of a guarantee of tenure which extends until the Judge attains the age of superannuation of sixty-two. The tenure of an Additional Ju....
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....n that the expression "Permanent Judge" in Article 220 of the Constitution must be held to include an Additional Judge in view of Section 17 of the General Clauses Act, 1897. What sub-section (1) of Section 17 provides is that in any Central Act or Regulation, it shall be sufficient for the purpose of indicating the application of a law to every person executing the functions of an office, to mention the official title of the officer at present executing the functions. This by no stretch of logic can be pressed in aid to even suggest that the expression "Permanent Judge" for the purpose of Article 220 will include an Additional Judge. 19. Having carefully considered therefore, the grievance of the Petitioner, we do not find any reason to exercise our extraordinary writ jurisdiction under Article 226 of the Constitution. The Petition shall stand dismissed. There shall be no order as to costs." In view of aforementioned, it is held that a member of the Tribunal discharged from service during probation period may not be debarred from practicing before it and the provision of Section 129(6) of Customs Act, 1962 would be applicable only to such Members who cease to hold office onl....
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....ion 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 ease 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 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 technical or judicial member has already superannuated according to the relevant rules of his parent post, the appoint....
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....a place near to Indore instead of Chennai. For easy reference, relevant excerpts of said representation are also extracted herein below : "First of all, I am very grateful to the Selection Committee, especially to the Hon'ble President, who has considered me for such a prestigious and responsible position, of Member (Judicial) in CESTAT. I am glad to accept this offer of appointment. However I humbly request you for kind consideration on my following submissions- In the said Appointment Offer my first posting has been given at CESTAT, Chennai Bench. In this connection I would like to make a humble 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 school 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 ....
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.... terminated by the Central Government at any time without assigning any reason after giving him one month notice of such termination and in ease such judicial member wishes to resign, he shall be required to give one month notice to the Central Government, it is not stipulated that on being discharged during probation, member would be debarred from appearing before the Tribunal. Thus on the face of communications dated 27-9-2012 and 25-10-2012 sent by applicant to respondent through Under Secretary to Government of India giving his unconditional willingness to accept the offer of appointment as Member (Judicial), Chennai and expressing his pleasure in accepting the offer given to him, we do not find the reason given by respondent in communication dated 6-12-2012 as incorrigible and acceptable. Merely because the applicant sought certain clarification from the respondent regarding applicability of Section 129(6) of Customs Act, 1962 to those discharged from service during probation, it cannot be said that he declined to accept the condition of his appointment. In view of unconditional willingness to accept the offer of appointment as Member (J) in Chennai given by applicant vide com....
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....rained judges in the High Court and Supreme Court would arise for discussion and decision. 69. In Union of India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423 at 442 = (AIR 1977 SC 2328 at p. 2338), this Court at p. 463 (of SCR) : (at p. 2355. of AIR) laid emphasis that, "independence of the judiciary is a fighting faith of our Constitution. Fearless justice is the cardinal creed of our founding document. It is indeed a part of our ancient tradition which has produced great judges in the past. In England too, judicial independence is prized as a basic value and so natural and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it would be regarded an act of insanity for any one to think otherwise". At page 471 it was further held that if the beacon of the judiciary is to remain bright, Court must be above reproach, free from coercion and from political influence. At page 491 (of SCR) : (at p. 2376 of AIR), it was held that the independence of the judiciary is itself a necessitous desideratum of public interest and so interference with it is impermissible except where other considerations of public interest are so str....
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....nce of the disputants. In Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 = (1992 AIR SCW 1093), this Court emphasised that, "Needless to say that the independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution. The objectives enshrined in the Constitution cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility." 71. In a democracy governed by rule of law surely the only acceptable repository of absolute discretion should be the Courts. Judicial review is the basic and essential feature of the Indian constitutional scheme entrusted to the judiciary. It cannot be dispensed with by creating tribunal under Arts. 323A and 323B of the Constitution. Any institutional mechanism or authority in negation of judicial review is destructive of basic structure. So long as the alternative institutional mechanism or authority set up by an Act is not less effective than the High Court, it is consistent with constitutional scheme. The faith of the people is the bed-rock on which the edifice of judi....
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....knowledge of trends is essential. A premature approach would hinder the effective performance of judicial functions. Law is a serious matter to be left exclusively to the judges, because judges necessarily have an important role to play in making and applying the law. There is every reason for ensuring that their selection, training and working practice facilitate to render their ability to decide the cases wisely on behalf of the community. If judges act in injudicious manner, it would often lead to miscarriage of justice and a brooding sense of injustice rankles in an aggrieved person. 73. The CEGAT is a creature of the statute, yet intended to have all the flavour of judicial dispensation by independent members and President. Sri Justice Y.V. Chandrachud, Chief Justice of India, in his letter dated October 5, 1982 stated that "Govt. had created a healthy convention of providing that the Tribunals will be headed by a President who will be a sitting or a retired judge of the High Court. Added to that is the fact that selection of the members of the Tribunal is made by a Committee headed by a Judge of the Supreme Court........I am sure that the Tribunal will acquire higher reput....
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....h whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to be made or the procedure adopted whether fair, just and reasonable. Exercise of judicial review is to protect the citizen from the abuse of the power etc. by an appropriate Govt. or department etc. In our considered view granting the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely. When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice-President or President of a Tribunal, we cannot sit over the choice of the selection, but be left to the executive to select the personnel as per law or procedure in this behalf. In Srikumar Prasad's case (AIR 1992 SC 1213), K.N. Srivastava, M.J.S., Legal Rememberance, Secretary to Law and Justice, Govt. of Mizoram did not possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Art. 217 of the Constitution, namely, that he was not a District Judge for 10 years in State Higher Judicial Service, which is a mandatory requirement for a valid appointment. The....
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....remedy of appeal by special leave under Art. 136 to this Court also proved to be costly and prohibitive and far-flung distance too is working as constant constraint to litigant public who could ill afford to reach this court. An appeal to a Bench of two Judges of the respective High Courts over the orders of the tribunals within its territorial jurisdiction on questions of law would assuage a growing feeling of injustice of those who can ill afford to approach the Supreme Court. Equally the need for recruitment of members of the Bar to man the Tribunals as well as the working system by the tribunals need fresh look and regular monitoring is necessary. Except body like the Law Commission of India would make an indepth study in this behalf including the desirability to bring CEGAT under the control of Law and Justice Department in line with Income-tax Appellate Tribunal and to make appropriate urgent recommendations to the Govt. of India who should take remedial steps by an appropriate legislation to overcome the handicaps and difficulties and make the tribunals effective and efficient instruments for making Judicial review efficacious, inexpensive and satisfactory.". So when the ....