9911796707
TMI Blog1983 (9) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... llows : In accordance with the provisions of paragraph 1(6) of this Ministry s memorandum F. No. A-1202619j 82-Ad.II(Trib) dated the 14th September, 1982, concerning the terms and conditions of appointment of Shri S. Grover as Vice-President in the Customs Excise and Gold (Control) Appellate Tribunal the President is pleased hereby to give one month s notice to Shri Grover and to order that on the expiry of the period of one month from the date on which this notice is served on him, he shall stand reverted to the post of Judicial Member, Income Tax Appellate Tribunal. 2. The petitioner is a B.A., LL.B. and was practicing Advocate. The petitioner joined as a Judicial Member of the Income Tax Appellate Tribunal on 3rd August, 1973. By Section 50 of the Finance Act 2 of 1980 read with fifth Schedule, an Appellate Tribunal was constituted called the Customs, Excise and Gold (Control) Appellate Tribunal to be called the Customs Tribunal consisting of as many Judicial and technical members as the Central Government may think fit to appoint. Section 129(4) of the Finance Act further empowered the Central Government to appoint one or more members of the Customs Tribunal to be Vice Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural justice inasmuch as it was passed without giving any opportunity of hearing to the petitioner. Re : Was the petitioner confirmed as Vice President : 6. Though in the petition averment was made that on 6th April, 1982 the petitioner was called by the President of the Customs Tribunal who informed him that the Government of India had decided to confirm him and that he had also given his option for confirmation on that very day, impliedly suggesting that he must be deemed to have been confirmed the learned Counsel for the petitioner, Mr. Sorabji did not press the plea that the petitioner should be treated to have been confirmed. He argued the matter on the acceptance of the petitioner still holding temporary appointment, a position also proved on record. 7. The fact that the petitioner did give his option for being confirmed in the Customs Tribunal is not in dispute. However the petitioner s contention that the same was done at the instance of Mr. F.S. Gill, the President of the Customs Tribunal who had informed him that the Government had decided to confirm him does not receive support from the counter affidavit filed by the President of the Tribunal. Mr. Gill has stated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taza Fazal Ali does not arise. In view of these pleadings we cannot hold that any decision had been taken by the government of India to confirm the petitioner and that the impugned order was a sudden volte face. Mr. Sorabjee therefore rightly argued the matter by accepting that the petitioner was holding a temporary appointment. If so, the petitioner was governed by the terms and conditions of his appointment letter dated 14th September, 1982 by which he could be reverted to his previous post by giving him one month s notice in this behalf. Indeed this finding of temporary appointment is the sheet anchor of stand of the Union of India because it was not disputed by the learned Attorney General appearing for the Union of India that had the petitioner been confirmed as Vice President in the Custom Tribunal then the order reverting the petitioner without first holding an inquiry and giving him opportunity of hearing would have been per se bad. But, argued Mr. Attorney General, as the petitioner was still a temporary incumbent he was validly reverted in terms of clause 6 of his terms and condition of appointment. The suggestion of the order being punitive arbitrary or for collateral pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be dispensed with before passing the impugned order. The Bench pointed out that from the analysis of Section 18AA(l)(a) it was clear that as a necessary preliminary to the exercise of power the Central Government is to be satisfied with regard to the existence of circumstances which would include that the person in charge has by committing any of the ads namely reckless investments or creation of encumbrances has brought about a situation which is likely to cause fall in production, and this satisfaction could not be arrived at without living a hearing to the undertaking there some stigma was to be attached before taking over and hence hearing was implied. 11. Similarly in S.L. Kapoor v. Jagmohan [AIR 1981 SC 136] where the case was of supersession of N.D.M.C. and it was held that as the status and office and rights of the Committee to serve its full terms are affected which if superseded would entail civil consequences which would justify the insistence upon the observance of principles of natural justice before an order of supersession is passed. The committee could only be superseded under Section 238, should a committee be incompetent to perform or is persistently incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould at least attract natural justice and require a hearing to be given to him before taking any action. And this is what a Division Bench of this court so held in 1970 SLR 213. But this view was not approved by the Supreme Court in AIR 1971 SC 40. The Supreme Court though it recognised the essential sweep of the natural justice and also recognising that the compulsory retirement of an officer is bound to have some adverse effect on the employee compulsorily retired yet held that it involved no civil consequence nor is such a rule intended to take any penal action against the government servant. Reversing the reasoning for the applicability of principles of natural justice it said that In our opinion the High Court erred in thinking that the compulsory retirement involves civil consequences. Such a retirement does not take away any of the rights that have accrued to the Government servant because of his past service. Thus the broad argument put forth by Mr. Sorabjee that in every case even in the case of temporary employee and in case of reversion without any stigma demand of principles of natural justice requires hearing to be given must be rejected. If the case of compulsory r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because according to him no reason is mentioned in the impugned order as to why the petitioner is being reverted. He also makes a grievance that in justification of the order of reversion the Union of India has also taken a stand in the return affidavit that the order of reversion was passed because the petitioner s performance was not satisfactory and says that even though it is stated by the respondents to be an order of reversion simplicitor and not by way of punishment yet by commenting on the petitioner s performance it casts a stigma on the petitioner. Mr. Sorabjee seeks to refer us to a number of authorities to urge that an arbitrary order cannot be allowed to stand. The proposition is unexceptionable. It may be readily conceded that if it can be shown that termination of the services of an employee has violated the constitutional mandate of Article 14 or 16 of the Constitution the said arbitrary action is liable to be struck down, See; Govt. Branch Press v. D.B. Belliappa [AIR 1979 SC 429]. However it is necessary to strike a caution to urge that the principles on which the test of arbitrariness has to be judged has to be co-related with the facts of each case as are laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir existence is questioned, it has to be proved at least prima facie it is not sufficient to assert that those circumstances exist and give no clue to what they are, because the circumstances must be such as to lead to conclusions of certain definiteness; the conclusions must relate to an intent to defraud, a fraudulent or unlawful purpose, fraud or misconduct. That is not the position in the case of reversion of a temporary employee, because the only condition precedent is that it should be in accordance with service conditions, no other limitations are imposed on the government to exercise its undoubted power under the Rules. 18. Similarly futile is the reliance on J.N. Sinha v. Union of India (1971) II SLR 470, where in a case of compulsory retirement, this court held that material to show that it was necessary to pass an order in public interest must be produced before the court. It will be appreciated that these principles were laid down in cases in which an employee has a vested right unlike the temporary employee and that right is being taken away from him earlier than the date of normal superannuation date. Thus in the case of permanent government official who would nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... (He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as forefeiture of any right and could not be described as reduction in rank by way of punishment. See P.L. Dhingra v. Union of India [AIR 1958 SC 36 at page 498]. 21. Of course it is also equally well settled that even if the order of termination does not contain words attaching stigma to the character or reputation of a Government Officer still the court is not debarred from looking at all circumstances to discover whether the order has been made by way of punishment. The form of the order is not conclusive of its nature; See S.R. Tiwari v. The District Board Agra now the Antarim Zila Parishad Agra through its Secretary and another; [AIR 1964 SC 1680]. Now a reference to the impugned order would show that it is ex facie innocent order reverting the petitioner to his original post of a Judicial Member of the Income Tax Tribunal., The order as such neither casts any stigma on the petitioner nor does it impose any penalty or any adverse consequences. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition that the order was passed for ulterior and collateral purposes of inducting another person to the post of Vice President (Judicial) in the Customs Tribunal, the Union of India properly thought it right not only to merely denying such a reckless allegation, but also considered its duty to inform the court that it had a bona fide and justifiable reason to pass an order of reversion. His contention is that in order to repudiate the allegation of having acted with ulterior purpose the explanation is given by the respondent that not only the order of reversion has been passed in accordance with the terms and conditions of appointment, but also to show its bona fide it is explained that the performance of the petitioner was not satisfactory, but he says that this does not in any way make the order penal in nature. We feel that there is justification for such a complaint, because to accept the argument of Mr. Sorabjee would be to confront the Union with an irresolvable dilemma an uncross able obstacle because if it was to take the stand that it was its sweet will and whim to terminate the services then it may be accused of arbitrariness and having acted capriciously. But if i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Art. 311 for the simple reason that the enquiry which utilimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged . The court held that even if the authorities initiated a formal departmental enquiry against the temporary servant but it is stopped before reaching a conclusion and an order of discharge simplifier is served it will have to be held that the termination of service of temporary servant cannot in law be regarded as his dismissal. That justification for action mentioned in the counter-affidavit cannot be seized by the employee to characterise a simple order of discharge as one of dismissal is clear from the following observations in Jagdish Mitter s case (para 13) (supra) :- We must bear in mind that the real character of the termination of services must be determined by reference to the material facts that existed prior to the order. Take a case where a temporary servant attacks the validity of his discharge on the ground of mala fides on the part of the authority. If in resisting the plea of mala fides, the authorities refer to cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of misconduct or inefficiency. All it states is that the compulsory retirement is for administrative reasons . It was only after the appellants own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him. There is therefore, no basis for saying that the order of retirement contained any imputation or charge against the officer. The fact that considerations of misconduct or inefficiency weighed with the government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer. 26. In Debesh Chandra Das v. Union of India, [(1969) II SCC 158] the appellant was a member of Indian Civil Service. On 20th June 1966, he received letter from the Cabinet Secretary (when he was posted as Secretary in the Government of India, Delhi), informing him that it had been decided to revert him or he may agree to proceed om leave preparatory to retirement or to agree to accept some post lower than Secretary of the Government of India. Thereafter the appellant was reverted to hist parent State in Assam. The appellant challenged the reversion on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d being cut short by the impugned order. The reference to the affidavit in Das s case was mentioned so as to clear any doubt. - The court was convinced that order of reversion was penal from other facts noticed in the judgment. The present case is clearly distinguishable. Here the petitioner is holding a temporary post. His reversion is in accordance with the term of .his appointment. Seeking to found a challenge on some small explanation given in the return affidavit is to ask us to adopt a course which was deprecated in Jagdish Mitter s and O.N.G.C., case (supra.). The petitioner cannot derive any assistance from this case. 27. In Madan Mohan v. State of Bihar [AIR 1973 SC 1133] a Munsif had been appointed in January, 1955. His services were terminated in January, 1972. Why the court held that the order of termination violated Article 311(2) was that though the petitioner was a temporary employee he had been holding a temporary post and then a permanent post for 17 years, and further the Chief Minister of the State had also made a statement in the Assembly stating that his services were not satisfactory and the Government was considering serving a show cause notice. It was for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temporary servant. See A. Vishwanath Rao v. State of Mysore [AIR 1968 SC 1089]. In that case the probation period expired in July 1954. A chargesheet was given to the employee on January 1957. He even replied to the chargesheet in May 1957. The charges levelled against the employee were of fairly serious nature. By the order of 23/26-5-1958 the employee was reverted to his substantive post. The employee s argument was that services had been terminated without a show cause and without an enquiry into the chargesheet and there was violation of Article 311(2) of the Constitution. This plea was negatived by the Supreme Court which found that the departmental enquiry did not proceed beyond the stage of merely serving of a chargesheet followed by respondent s explanation thereto, no evidence was taken, no conclusion reached. The court, therefore, held that there was no stigma and the order was a valid one and no enquiry was necessary. An authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the temporary employee is unsuitable for the job and hence must be discharged, in accordance with term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to the State counsel to indicate the reason if any for the unsuitability of Belliappa, it was not able to disclose any such information. It was in that context that the Supreme Court came to the conclusion that the termination of Belliappa s services was made arbitrarily and not on the ground of unsuitability or other reason, which would warrant discriminatory treatment to him as a class apart from others in the same cadre. Though the counsel for the State had sought to plead in the Supreme Court that action had been taken against Belliappa because of his service record the same was not allowed; to be urged because of the stand adhered to throughout was that action had been taken to terminate his services without any reason in exercise of the power vested in the competent authority under the conditions of Belliappa s employment. The Supreme Court commented adversely on the action of the State Government that while a charge of unfair discrimination had been made it made no effort to dispel that charge by disclosing to the Court the reasons for the impugned action. Thus in that case the State as a matter of fact never took the stand that it was because of any unsatisfactory ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability of Article 16. 32. Mr. Sorabjee contends that in a high quasi judicial post like that of the Vice President of Customs Tribunal a Statement in the counter affidavit that the performance of the petitioner was not satisfactory must be treated by itself to amount to casting a stigma on the petitioner and therefore, per se penal. Though we have all the regard and respect for such high office it must yet be accepted that this is a post like any other Class I civil post under the Government of India. The said post is governed by the terms and conditions of appointment letter. In terms of the appointment letter unless the petitioner was confirmed as a Vice President he could at any time be reverted by giving him one month s notice. It is the exercise of this power which has been resorted to by the respondent/Union of India. The statement in the counter affidavit that the performance was not satisfactory was in answer to the pleading of the petitioner that the reversion was an act of victimization or for collateral purposes. As a matter of fact Mr. Attorney General was fair enough to emphasise that notwithstanding the order of reversion the Government of India held the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est that even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such a power flowed from the contract of service it could not be termed as penalty or punishment. Here in this case the impugned order is an innocent order of petitioner s reversion to his old post which is as responsible and of equal status. No infirmity can attach to the impugned order. It so happens with best of people that in a particular post somehow the work is not so fully appreciated as in some other field. That this assessment by the President is not arbitrary or just a whim, finds some support from the affidavit filed by Mr. Gill a retired Judge. The President of the Tribunal who has stated that though he had made proposals to the Government on 6th April, 1983 for confirming all the officers including the petitioner but after watching the performance of the officers he had on 8th July, 1983 recommended to the Government that the question of confirmation of the Vice President and the Members be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding the temporary post of Vice President of the Customs Tribunal has been reverted to his original permanent post of a member of Income Tax Tribunal which by all standards is equally high powered, responsible and high status post. 34. As a result of the above we find no merit in the petition. The same is, therefore, dismissed. No order as to costs. 35. Before parting with the case we would like to observe that in posts like the present or those in the Income Tax Appellate Tribunal which though act quasi judicially are in fact Central Civil Service Class I posts but perform the functions where the Government is one of the parties, it needs to be considered whether some greater protection may not be necessary to be given before terminating or reverting the officer even if temporary one, other than that which is provided under the Central Civil Services (CCA) Rules 1965. We are not suggesting that the action taken is necessarily motivated by extraneous reasons. We are mentioning this because we feel that if some independent instrumentality other than the Central Government was involved in determining whether the services of a temporary employee should be terminated or an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber ought on such grounds to be removed. It is true that the status of the member of Monopolies and Restrictive Trade Practices Commission is possibly on a little higher pedestal than that of the Customs Tribunal. It is also correct that a member of the MRTP Commission is straightway appointed for a specified period not exceeding 5 years and cannot hold office for a total period exceeding 10 years or after he has attained the age of 65 years whichever is earlier, while in the case of members of the Customs Tribunal or Income Tax Tribunal appointment once made on permanent basis is to go upto 60 years. Thus there is a greater period of service in these bodies. In the M.R.T.P. Commission there is no question of any appointment being made for a period of less than 5 years. But we also have no doubt that the work performed by the member of the Customs Tribunal as well as the Income Tax Tribunal is of very sensitive nature inasmuch as it is connected with the most important sinews of the government i.e. collection of revenue. Earlier the quasi judicial functions were performed by the Administrative officers. This naturally led to a feeling of dis-quiet amongst the citizens that unless ..... X X X X Extracts X X X X X X X X Extracts X X X X
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