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TMI Blog2012 (12) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been passed without giving an opportunity to the respondent to meet the allegations contained in the report of the President, CESTAT. Although, the High Court had allowed the writ petition of the respondent only on the ground that there had been a violation of Rule 9(2), we have come to a conclusion that the order of discharge was vitiated being colourable exercise of power, stigmatic and punitive in nature and such order cannot be sustained in law. In our opinion, the order of discharge is arbitrary and therefore violates Article 14 of the Constitution. The appellant - Pradip Kumar is entitled to be reinstated in service. He shall be entitled to full back wages during the period he has been compelled to remain out of service. Union of India is directed to release all consequential benefits to the said Pradip Kumar within a period of two months of the receipt of a certified copy of this order. - CIVIL APPEAL NO. 9082 & 9089 OF 2012 - - - Dated:- 14-12-2012 - ALTAMAS KABIR, SURINDER SINGH NIJJAR And J. CHELAMESWAR, JJ. For Petitioner(s) Mr. Nikhil Jain,Adv. For Respondent(s) Mr. B. Krishna Prasad,Adv. JUDGMENT SURINDER SINGH NIJJAR, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. [3] A member may be discharged from service at any time during the period of probation without assigning him any reason. Rule 9. Reversion or termination of the service of members. [1] In case of a person appointed as a technical or a judicial member from any post under the Union or a State, unless such a person is confirmed, the Central Government may at any time revert him to his parent post without assigning any reason, after giving him one month s notice of such reversion and in case a technical or a judicial member wishes to revert to his parent post, he shall be required to give one month s notice to the Central Government: Provided that in case such technical or judicial member has already superannuated according to the relevant rules of his parent post, the appointment may be terminated by the Central Government at any time without assigning any reason after giving him one month s notice of such termination and in case such technical or judicial member wishes to resign, he shall be required to give one month s notice to the Central Government. [2] In case of a person appointed as a judicial member directly from the Bar, unless he is confirmed, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven after the maximum period of three years, on probation. Rule 9(2) would have no application within the period of three years. Rule 8 provides for discharge of probationer. Rule 9(2) talks of termination of service. In such circumstances, it provides that notice of one month shall be given before termination. But this procedure would become applicable only if the Judicial Member has been in service for three years or more. Otherwise, provision of one month notice would have been made in Rule 8 itself. Rationale underlying the provision in Rule 9(1) is to enable the member recruited from a Central Government post to be reverted to his parent post. To put Judicial member recruited directly from the Bar at par with those recruited from Central Government posts, the necessary provision of one month notice has been made in Rule 9(2). No such notice would be required if the Judicial Member is discharged within a period of three years, if not confirmed. 6. Keeping in view the aforesaid interpretation of Rules 8 and 9, let us now examine the facts. It appears that no order extending the period of probation of the respondent was passed at the end of the mandatory period of probation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may, he received the order dated 19th November, 2009 which extended his period of probation; first upto 21st November, 2008 and then further upto 21st November, 2009. It is further the case of the respondent, on the basis of the information obtained under the Right to Information Act 2005, that there is a note dated 26th November, 2007 in File No.27/22/2005-AD.IC in which it has been mentioned that the action for initiation of the process of confirmation of the respondent, which was due on 22nd November, 2007, would be initiated in a new file. There is further noting on 23rd January, 2008 calling for the ACRs of the respondent and two other Members. On 6th June, 2008 Justice S.N. Jha, President, CESTAT, wrote to the Secretary, Department of Revenue, requesting him to take steps for the confirmation of some of the Members of the CESTAT including the respondent. The Vigilance Cell had also conveyed its clearance from its own angle, in so far as the respondent was concerned. 8. However, the circumstances did a complete about turn when, like a bolt out of the blue, on 14th September, 2009, the respondent received a note from the President of the CESTAT annexing therewith a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of duty. It was also observed by the CAT that there was no full scale formal inquiry, but only facts have been brought to the notice of the competent authority about the unsatisfactory performance of the respondent. With these observations, the OA was dismissed. 10. The respondent being aggrieved challenged the order before the High Court of Delhi by way of Writ Petition [C] No.98 of 2011. The High Court allowed the writ petition only on the interpretation of Rule 8(3) and Rule 9(2) of the Rules, although the respondent had raised four specific points for the consideration of the High Court. It was submitted that the order of discharge could not be sustained as it had been passed in arbitrary exercise of power. It was said to be a product of malice in law. Secondly it was submitted that the discharge order was punitive in nature inasmuch as it was stigmatic and, therefore, it was essential that inquiry under Article 311(2) of the Constitution of India ought to have been conducted. Thirdly, it was submitted that the relevant rules and in this case Rule 9(2) of the said Rules, requires giving of one month s notice prior to termination. That notice was admittedly not given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unication, in our opinion, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. In our opinion, the aforesaid observations are fully applicable in the facts and circumstances of this case. 12. It is also a matter of record that the procedure for confirmation of the respondent had been initiated on 26th November, 2007. It is also not disputed that vigilance report for his confirmation had also been received. Therefore, it is difficult to accept the submission of learned counsel for the Union of India, that the discharge of the respondent is not founded on the complaint made by some of the advocates. The report prepared by the President, CESTAT on 18th November, 2009, clearly indicated that the only reason for issuing the order of discharge was contained in the aforesaid report. In our opinion the order of discharge passed by the Union of India was clearly vitiated by the legal malice. It was clearly founded upon the report submitted by the President, CESTAT. In our opinion the controversy herein is squarely covered by a number of earlier judgments of this Court, which have been considered and reaffirmed in the case of Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid Rule has made a distinction between the members of the CESTAT who were working in the Central Government prior to their recruitment as Members of the CESTAT and the Judicial Member directly recruited from the Bar. In the case of members recruited from the various services of the Central Government, a provision has been made for their reversion to the parent department. In their case a provision has also been made for them to be reverted to the parent department without assigning any reason. However, the same can only be upon giving one month s notice. In the case of Judicial Member, directly recruited, it has been specifically provided [Rule 9(2)] that upon completion of three years if the Judicial Member has not been confirmed, his services can only be terminated upon being given one month s notice. To avoid this provision, an order was passed on 19th November, 2009, extending the respondent s period of probation from 21st November, 2007 to 21st November, 2008 and further upto 21st November, 2009. This was clearly done with an oblique motive of issuing the order of discharge on the very next day, i.e., 20th November, 2009. The action of the Union of India is undoubtedl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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