2013 (8) TMI 253 - Tri - Indian Laws

Applicability of Section 129(6) of the Customs Act on a person appointed as member(judicial) of CESTAT Held that - The phrase on ceasing to hold the office .. member shall include only those members who acquired right to hold office after their confirmation and not a member who is discharged during probation Also, in terms of Rule 3(2) of Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Condition of Service) Rules, 1987, a Commissioner of Customs who has held such office at least for three years is qualified for appointment as Member (Tech). On not found fit for being confirmed on said post, he is liable to be reverted back to his original post, i.e. Commissioner (Customs). It is quite possible that on reversion, such Commissioner may represent Revenue before CESTAT as legal representative. Thus, a person offered appointment as Judicial (Member) not be prohibited from returning to his position enjoyed by him before such appointment in the event of being not considered suitable to be confirmed as Member (Judicial). Respondent reiterated the stand taken by them in the impugned communications dated 12-9-2012 and 6-12-2012, which was not be sustainable Respondent vehemently relied upon the word ceasing to hold office - The said phrase cannot be applied to probationer not found suitable to be confirmed and discharged from service - Reference has been made to CESTAT Member (Recruitment and Condition of Service) Rules, 1987, but in the said rule, there is no any stipulation that if a probationer member of CESTAT is not found suitable to be confirmed and discharged, he cannot appear before it Decided in favor of Appellant.

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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