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TMI Blog2012 (11) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... reeing 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. - 98 of 2011 - - - Dated:- 27-7-2012 - Badar Durrez Ahmed and V.K. Jain, JJ. REPRESENTED BY : S/Shri Mukul Rohatgi, Sr. Advocate with Saurabh Kirpal, for the Petitioner. S/Shri Dayan Krishnan with Nikhil Nayyar, Nikhil Menon, Ruchir Mishra and Swapnil Verma, for the Respondent. [Judgment per : Badar Durrez Ahmed, J.]. - This writ petition is directed against the order dated 9-12-2010 passed in O.A. No. 3544/2009 by the Central Administrative Tribunal, Principal Bench, New Delhi [2010 (260) E.L.T. 569 (CAT)]. The petitioner is aggrieved by the fact that his said original application, which had been filed challenging the termination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia To, Shri P.K. Das, Member (Judicial) CESTAT, West Block No. 2, R.K. Puram, New Delhi. Copy to : 1. President, Customs, Excise Service Tax Appellate Tribunal, New Delhi 2. Registrar, Customs, Excise Service Tax Appellate Tribunal, New Delhi 3. Establishment Officer, Department of Personnel Training, North Block 4. Pay and Accounts Officer, Department of Revenue 5. Notification Folder. Sd/- (Victor James) Under Secretary to the Govt. of India 2.2 Thereafter, by a letter dated 23-11-2009, the petitioner withdrew his resignation under Rule 9(2) of the said Rules within the prescribed period. 2.3 As mentioned in the impugned judgment, there is a note dated 26-11-2007 in File No. 27/22/2005-Ad.IC, which was obtained under the Right to Information Act, 2005, in which it has been mentioned that the action for initiation of the process of confirmation of the petitioner, which was due on 22-11-2007, would be initiated in a new file. There is a noting of 23-1-2008 calling for the ACRs of the petitioner and two other members. On 6-6-2008, Justice S.N. Jha, President of CESTAT wrote to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner submitted that the relevant rules and, in this case. Rule 9(2) of the said Rules, required the giving of one month s notice prior to termination. That notice was admittedly not given and, therefore, the termination was bad. Lastly, the learned counsel for the petitioner submitted that by virtue of operation of Rule 8 of the said Rules, the petitioner could be deemed to have been confirmed. 4. Although, the four points were taken by the learned counsel for the petitioner and on all those four points, Mr. Dayan Krishnan, appearing on behalf of the respondents, presented his counter-case, the only point of relevance and importance for our purposes is the third one which involves interpretation of Rule 8(3) and Rule 9(2) of the said Rules. Rule 8 deals with probation and Rule 9 deals with reversion or termination of service of members . Both the rules are set out hereinbelow :- Rule 8. Probation. - (1) Every person appointed as a member shall be on probation for a period of one year. (2) The Central Government may extend the period of probation for a further period of one year at a time so that the period of probation in aggregate may not exceed three years. (3) A membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n mean one and the same thing. For this proposition, the learned counsel for the petitioner referred to the Supreme Court decision in the case of S.K. Sarma v. Mahesh Kumar Verma : 2002 (7) SCC 505, wherein in paragraphs 11 and 12 thereof, the Supreme Court accepted the view that the word discharge embraced all types of termination of contract of employment. The Supreme Court also observed that the word discharge is of the widest amplitude and would include a cessation of relationship of an employer or employee, maybe by retirement, resignation, dismissal or removal. Therefore, according to the learned counsel for the petitioner, it did not matter if the word discharge was used instead of the word termination . All that had to be seen was that there was a cessation in the relationship of employer and employee. 7. The learned counsel for the petitioner also placed reliance on the Supreme Court decision in the case of Chandra Prakash Sahai v. State of U.P. : 2000 (5) SCC 152, wherein the Supreme Court held as under :- 33. Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e three year period is over and the person concerned is still not confirmed. On the basis of this submission, he maintained that no notice was at all necessary for discharging the services of the petitioner inasmuch as the petitioner had not completed the three year period and, therefore, the provisions of Rule 9(2) had not been triggered into action. He further submitted that the discharge of the service of the petitioner by virtue of the order dated 20-11-2009 was not bad-in-law. 12. Before we examine the rival contentions with regard to the interpretation to be placed on the said Rules 8(3) and 9(2) of the said Rules, it would be appropriate to notice two decisions of the Supreme Court with regard to interpretation. In Superintendence Co. of India v. Krishan Murgai : 1981 (2) SCC 246, the Supreme Court observed as under :- 63. The true rule of construction is that when a covenant or agreement is impeached on the ground that it is in restraint of trade, the duty of the Court is, first to interpret the covenant or agreement itself, and to ascertain according to the ordinary rules of construction what is the fair meaning of the parties. If there is an ambiguity it must receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties. 31. It is also a well-recognized principle of construction of a contract that it must be read as a whole in order to ascertain the true meaning of its several clauses and the words of each clause should be interpreted so as to bring them into harmony with the other provisions if that interpretation does no violence to the meaning of which they are naturally susceptible. [(The North Eastern Railway Company v. L. Hastings) 1900 AC 260]. It is, therefore, clear that the contract (and, in our case, the rules) must be read as a whole and the true meaning of the clauses should be ascertained from the words used and not upon what the parties choose to say afterwards. 15. It is clear that Rule 8 specifically speaks of probation. It is also clear that Rule 8(1) stipulates that every person appointed as a member shall be on probation for a period of one year. By virtue of sub-rule (2) of Rule 8, the Central Government is empowered to extend the period of probation for a further period of one year at a time so that the period of probation in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are dealt with differently inasmuch as instead of termination/discharge, they would suffer reversion. It is only when such a person, by virtue of operation of the proviso, has already superannuated according to the relevant rules of his parent post, that he would suffer termination. In the case of a judicial member appointed directly from the bar, there can be no question of any reversion and, therefore, his services can only be terminated. It is for this reason that while Rule 8(3) stipulates that the services of a member may be discharged at any time during the period of probation without assigning him any reason, the individual cases of different types of technical and/or judicial members are specifically dealt with under Rule 9 and the expressions reversion and termination are used. 18. In a sense, Rule 9(2), 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 sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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