LexPRADIP KUMAR versus UNION OF INDIA AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2012] 9 S.C.R. 1141 PRADIP KUMAR v. UNION OF INDIA AND ORS. (Civil Appeal No. 9082 of 2012) DECEMBER 14, 2012 [ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR AND J. CHELAMESWAR, JJ.] CUSTOMS EXCISE AND SERVICE TAX APPELLATE A B TRIBUNAL MEMBERS (RECRUITMENT AND C CONDITIONS OF SERVICE) RULES, 1987: r. 9(2) - Termination of service of Judicial Member appointed directly from the Bar - Challenged - Held: In the instant case, r. 9(2) is relevant, which provides that in the case D of a person appointed as Judicial Member directly from the Bar, unless he is confirmed, his appointment may be terminated at any time without assigning any reason, after giving him one month's notice - The respondent had completed the mandatory period of probation - During three E years of service no order was issued extending his period of probation - Therefore, it was expected of the department to take a decision about the performance of the respondent within a reasonable period from the expiry of one year - The order .of discharge was based on the report of the President, CESTAT pursuant to a complaint made by advocates and, therefore, it was stigmatic, punitive in nature and, as such, vitiated by legal malice - It could not have been passed without giving an opportunity to respondent to meet the a/legations contained in the report of the President, CESTAT - Besides, the order has been passed in order to avoid the G procedure of giving one month's notice as required under r.9(2) and, thus, is vitiated·by colourable exercise of power - Order of discharge is set aside - Respondent is entitled to be reinstated with all consequential benefits - Administrative Law F 1141 H 1142 SUPREME COURT REPORTS [2012] 9 S.C.R. A - Malice in law - Constitution of India, 1950 - Art. 14 - Colourable f!Xercise of power. The respondent in C. A. No. 9089 of 2012 on being appointed directly from the Bar as a Member (Judicial), 8 Customs Excise and Service Tax Appellate Tribunal, assumed charge on 22.11.2006. He received an order dated 19.11.2009 extending his period of probation first upto 21.11.2008 and then upto 21.11.2009. The respondent tendered his resignation on 20.11.2009. On C that very date an order discharging him from service under r. 8 (3) of the Customs, Excise and Service Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987 was also issued. The respondent challenged the said order in an O.A. before the Central Administrative Tribunal contending that his services were D terminated as a direct consequence of the complaint made by the representatives of the Bar with regard to an incident that occurred in his court on 09.09.2009 and the consequent report dated 18.11.2009 sent by the President, CESTAT. The Tribunal dismissed the 0. A. But E the High Court held that since the respondent had completed more than three years of service and he was a Judicial Member, under r. 9(2) his services could not be terminated without serving upon him one month's notice. F Disposing of the appeals, the Court HELD: 1.1 Rule 8 of the Customs, Excise and Service Tax Appellant Tribunal Members (Recruitment and Conditions of Service) Rules, 1987 provides for discharge of a probationer. It operates within the period of three G years during which a member can be continued on probation. Under r. 8(3) a Member may be discharged from service at any time during the period of probation without assigning any reason. [para 5] [1147-G-H] H PRADIP KUMAR v. UNION OF INDIA 1143 1.2 Rule 9 talks of reversion or termination of service A of Members. Rule 9(1) deals with Members, who have been appointed whilst already in the service of the Central Government. In the case of Judicial Member directly recruited from the Bar, the procedure prescribed under r. 9(2) is required to be followed. In the instant case, B r. 9(2) is relevant, which provides that in the case of a person appointed as Judicial Member directly from the Bar, unless he is confirmed, his appointment may be terminated by the Central Government at any time without assigning any reason, after giving him one month's c notice. Rationale underlying the provision in r. 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 0 provision of
Excerpt shown. Read the full judgment & AI analysis in Lexace.