2010 (12) TMI 97 - Tri - Customs

CESTAT Member Deemed confirmation - whether Member considered deemed to have been confirmed from probation after the prescribed one year of probation - provision existed for extension by two years, one year at a time, when the probation was extended towards the end of the third year, simultaneously for both the years; and whether the order of the Applicant s discharge from service would be considered - Rule also does not say that the two years period of probation, as mentioned in the Rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years No deemed confirmation as per rules governing applicant Instructions that shotcomings of probationer to be brought to his notice being administrative instructions, not create any right in his favor Application dismissed

Summary

Issues Involved:
1. Confirmation of probation after the prescribed period.
2. Whether the order of discharge from service was punitive or termination simpliciter.

Detailed Analysis:

Issue 1: Confirmation of Probation
The Applicant contended that he should be deemed confirmed after completing one year of probation, as no extension was communicated. The relevant rules, specifically Rule 8 of the Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987, allow for an extension of probation up to three years, one year at a time. The Applicant's probation was extended retrospectively for two years simultaneously towards the end of the third year. The Tribunal held that there can be no deemed confirmation unless an explicit order of confirmation is passed. The provisions in Rule 9, which allow for termination without assigning any reason unless the Member is confirmed, negate the argument for automatic confirmation. The Tribunal cited High Court of MP v. Satya Narayan Jhavar and Registrar, High Court of Gujarat v. C.G. Sharma to support this view, emphasizing that the confirmation is not automatic and must be explicitly ordered.

Issue 2: Nature of the Discharge Order
The Applicant argued that his discharge was punitive, based on allegations of misconduct and unsuitability for the job, which should have entitled him to a formal inquiry. The Tribunal examined whether the discharge was a termination simpliciter or punitive. The President of the CESTAT had cited unsatisfactory performance and transgression of jurisdiction as reasons for recommending the Applicant's discharge. The Tribunal referred to Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, which outlines that a termination is punitive if it follows a full-scale formal inquiry into allegations of misconduct resulting in a finding of guilt. In this case, there was no formal inquiry, only a preliminary assessment of the Applicant's performance. The Tribunal concluded that the order of discharge was based on unsuitability and unsatisfactory performance, not on punitive grounds. The Tribunal also noted that the discharge was in line with Rule 8(3) of the 1987 Rules, which allows for discharge during probation without assigning reasons.

The Tribunal dismissed the Applicant's contentions and upheld the orders extending the probation and discharging the Applicant from service, finding no merit in the OA. The Tribunal emphasized that the discharge was not punitive but a termination simpliciter based on unsuitability for the job.