2014 (3) TMI 138 - HC - Indian Laws

Bar on the person to practice before CESTAT who was appointed as member of CESTAT - Appointment of Member (Judicial) of the Customs Excise and Service Tax Appellate Tribunal (CESTAT) - Mr. Ramesh Nair - whether respondent unconditionally accepted the terms of his appointment as per the letter of offer dated September 13 2012 read with the corrigendum dated September 19 2012 - Scope of the term hold office used in Section 129(6) of the Act in order to determine whether a probationer can be said to be holder of office of Member CESTAT. - Tribunal concluded that a person under probation may not be said to be holding an office for the purpose of section 129(6) of the Act. It was further concluded by the Tribunal that in case of discharge of probationer from service on account of not being not found suitable for being confirmed may not be compared with cessation of office by person who has acquired a lien on it. Held that - the bar under Section 129(6) would be applicable to a Member holding the post on substantive basis. This we say so for the reason it is not the case of the respondent that even after demitting office as a confirmed Member (Judicial) he can practice in CESTAT. His case was on demitting office as a probationer the bar under Section 129(6) would not be applicable. A Member demitting office while on probation does not retire whereas a Member who is confirmed retires on attaining the age of superannuation unless he resigns. The rules do recognize Member on probation and a Member who is confirmed as two distinct separate classes. The provision in question must be read to mean that the bar would not be applicable to a Member who demits the office while on probation. - Petition dismissed.

Summary

Issues Involved:
1. Whether a person not confirmed as Member of CESTAT can be said to be holding the office as a member of said Tribunal.
2. Whether the term 'ceasing to hold office as Member' includes discharge of a probationer.
3. Whether seeking clarification on certain doubts or challenging the clarification received before a court can be construed as conditional acceptance or absence of willingness to accept the offer of appointment.

Detailed Analysis:

Issue 1: Whether a person not confirmed as Member of CESTAT can be said to be holding the office as a member of said Tribunal.
The Tribunal relied on various judgments to interpret the term 'hold office' in Section 129(6) of the Customs Act, 1962. It concluded that a probationer cannot be said to hold office as a Member of CESTAT. The Tribunal referred to the meaning of 'hold' in the Concise Oxford Dictionary and concluded that only a person who keeps possession or lien on a job can be said to be a holder of that office. It further relied on the judgment in Purshotam Lal Dhingra vs. UOI, which held that a probationer does not acquire any substantive right to the post and thus cannot be said to hold office.

Issue 2: Whether the term 'ceasing to hold office as Member' includes discharge of a probationer.
The Tribunal concluded that the term 'ceasing to hold office' does not include the discharge of a probationer. It held that Section 129(6) of the Act applies only to confirmed members who cease to hold office and not to probationers. The Tribunal referred to the legislative intent and the distinction between a probationer and a confirmed member, concluding that a probationer does not acquire a lien on the post and thus cannot be said to cease holding the office upon discharge.

Issue 3: Whether seeking clarification on certain doubts or challenging the clarification received before a court can be construed as conditional acceptance or absence of willingness to accept the offer of appointment.
The Tribunal held that merely seeking clarification does not amount to conditional acceptance. The respondent had accepted the terms of appointment unconditionally but sought clarification regarding the applicability of Section 129(6) to probationers. The Tribunal found that the respondent's willingness to accept the offer was unconditional and that seeking clarification was a legitimate query that should not be held against him.

Conclusion:
The Tribunal quashed the letters dated November 12, 2012, and December 06, 2012, and allowed the respondent to join as Member (Judicial) in CESTAT without being subjected to the embargo of Section 129(6) of the Customs Act, 1962, in the event of ceasing to hold office during the probation period. The Tribunal's interpretation of the term 'ceasing to hold office' and the distinction between a probationer and a confirmed member was upheld. The High Court dismissed the writ petitions, agreeing with the Tribunal's plausible view and declined to interfere with the impugned order.