Pradip Kumar vs Union Of India & Ors

4. The respondent was a practising Advocate in the Calcutta High Court as well as before the CESTAT for over twenty years mainly dealing with the customs, excise and service tax matters. On 22nd April, 2006 he appeared for an interview before the Selection Committee for the post of Member [Judicial] in CESTAT. On being duly selected, he assumed charge as Member [Judicial] in the CESTAT on 22nd November, 2006. Service conditions of the Member of the CESTAT are governed by Customs, Excise and [Service Tax] Appellate Tribunal Members [Recruitment and Conditions of Service] Rules 1987 [hereinafter referred to as the “Rules”]. The controversy in the present proceedings is limited to the interpretation of Rule 8 and Rule 9 [2] of the aforesaid Rules. The said Rules are as under:

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 on 21st November, 2007 or soon thereafter. The respondent, therefore, continued to work as Member [Judicial]. However, he received an order dated 19th November, 2009 extending his period of probation; first upto 21st November, 2008 and then upto 21st November, 2009. Receipt of the letter dated 19th November, 2009 resulted in the respondent tendering his resignation from the post of Member [Judicial] CESTAT on 20th November, 2009. On that very date an order was issued whereby the respondent was discharged from service on the post of Member [Judicial] CESTAT. The said order is reproduced below:

7. During the period of his service the respondent had served under three Presidents, CESTAT, namely, Justice Abichandanani, Justice S.N. Jha and Justice R.M. Khandparkar. It is the case of the respondent that he never received any adverse comments from any of the Presidents during his tenure of service as a Member [Judicial], CESTAT. In fact, he was given the annual increments in the years 2007 and 2008. Since, he had received no adverse reports, the respondent assumed that he would be confirmed on the post of Member [Judicial] CESTAT. But to his utter shock and dismay, 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.

15. This now brings us to the appeal arising out of Special Leave Petition No. 27821 of 2012 filed by Pradip Kumar claiming the relief of reinstatement and for the grant of consequential benefits including full back wages. 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. Consequently, we hold that 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.

16. With these observations, the appeal filed by Union of India being Civil Appeal No. 9089 of 2012 arising out of Special Leave Petition [C] No. 34671 of 2012 is dismissed and Civil Appeal No. 9082 of 2012 arising out of Special Leave Petition [C] No. 27821 of 2012 filed by the Pradip Kumar is allowed.

December 14, 2012.

Date: 14/12/2012 These matters were called on for pronouncement of judgment today.

Leave granted in both the petitions.

Civil Appeal No.9089 arising out of SLP(C) No.34671/2012 is dismissed and Civil Appeal No.9082/2012 arising out of SLP(C) No.27821/2012 is allowed in terms of the signed judgment.

(Signed reportable judgment is placed on the file)