2012 (11) TMI 490 - HC - Indian Laws

Termination of probation order - petitioner is a practicing advocate in the Calcutta High Court as well as CESTAT - Held that - Rule 9(2) of the CESTAT Members (Recruitment and Conditions of Service) Rules, 1987 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. Thus agreeing with the submission made by 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 & not agreeing with the submission made by 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. In any event the salutary principle of interpretation must not be forget that when there is any doubt, the benefit must go to the employee. Thus as a result the discharge order dated 20-11-2009 are set aside. The writ petition is allowed to the aforesaid extent.

Summary

Issues Involved:
1. Termination of probation without notice.
2. Arbitrariness and malice in the termination order.
3. Whether the termination was punitive and stigmatic.
4. Application of Rule 8(3) and Rule 9(2) of the CESTAT Members (Recruitment and Conditions of Service) Rules, 1987.

Issue-wise Detailed Analysis:

1. Termination of probation without notice:
The petitioner argued that the termination of his probation was invalid as it did not comply with Rule 9(2) of the said Rules, which mandates giving one month's notice prior to termination. The Court examined Rule 8(3) and Rule 9(2) and concluded that they must be read harmoniously. Rule 8(3) allows for discharge without assigning any reason during the probation period, while Rule 9(2) requires one month's notice for termination of a judicial member directly appointed from the bar. The Court found that the termination without the requisite notice was a clear violation of Rule 9(2), making the termination order dated 20-11-2009 bad in law.

2. Arbitrariness and malice in the termination order:
The petitioner contended that the termination was arbitrary and a product of malice in law. However, the Court did not delve deeply into this issue, as it found the termination invalid based on the lack of notice under Rule 9(2).

3. Whether the termination was punitive and stigmatic:
The petitioner claimed that the discharge order was punitive and stigmatic, thus necessitating an inquiry under Article 311 of the Constitution. The Court did not address this argument in detail, as the primary issue of non-compliance with Rule 9(2) was sufficient to decide the case in favor of the petitioner.

4. Application of Rule 8(3) and Rule 9(2) of the CESTAT Members (Recruitment and Conditions of Service) Rules, 1987:
The Court analyzed the interplay between Rule 8(3) and Rule 9(2). Rule 8(3) allows for discharge during the probation period without assigning any reason, while Rule 9(2) requires one month's notice for termination of a judicial member directly appointed from the bar. The Court held that these rules must be read together, and the requirement of one month's notice under Rule 9(2) cannot be ignored. The Court rejected the respondent's argument that Rule 8(3) applies only during the three-year probation period and Rule 9(2) applies thereafter. The Court emphasized that any ambiguity in the rules should benefit the employee, leading to the conclusion that the termination without notice was invalid.

Conclusion:
The Court set aside the impugned order passed by the Tribunal and the discharge order dated 20-11-2009. The writ petition was allowed to the extent that the termination was invalid due to non-compliance with Rule 9(2). The Court did not find it necessary to address the other arguments raised by the petitioner, as the primary issue of lack of notice was dispositive.