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| DATE: | December 3, 2013 (Date of publication) |
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| Click here to download the judgement (ramesh_nair_CESTAT_probation.pdf) |
Bar in s. 129(6) on ex-Members practising before CESTAT does not apply to Members demitting office on probation
The respondent, a practising Advocate at Indore, was offered appointment as Member (Judicial) of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). It was indicated that the respondent would be on probation for a period of one year and upon confirmation shall hold office for a term of 5 years extendable by another term of 5 years. It was indicated in the letter that if the respondent accepted the offer his first posting would be at CESTAT Chennai Bench. The respondent sent a letter accepting the offer of appointment but requested that he may be posted at a place nearby Indore, preferably at Mumbai. That request was not accepted and the respondent was requested to convey his unconditional willingness to accept the offer of appointment as Member (Judicial) within 10 days. The respondent wrote a reply in which he gave his unconditional willingness to be appointed Member (Judicial) but sought clarification whether a Member is entitled to practice and appear in CESTAT after he is discharged from services for any reason during the period of probation. The Government responded and stated that the bar in s. 129(6) of the Customs Act which applied to a member ‘on ceasing to hold office’ is applicable to all types of cessation; whether on retirement, resignation or discharge during probation or by any other way. The respondent challenged the said letter before the Central Administrative Tribunal and sought a direction that he should be allowed to join as Member in the CESTAT without being subjected to the embargo of s. 129 (6) in the event of his ceasing to hold office as Member before the expiry of period of probation. During the pendency of the application before the CAT, the Government withdrew the offer of appointment on the ground that his unconditional willingness to accept the offer of appointment had not been received. The respondent challenged the withdrawal of the offer of appointment before the CAT. The CAT held that a person under probation was not holding an office for the purpose of s. 129(6) of the Customs Act and that the case of discharge of a probationer from service on account of not being not found suitable for being confirmed was not comparable with cessation of office by person who has acquired a lien on it. The CAT followed the order in Concept Creations vs. ACIT 120 ITD 19 (Del) (SB) where it was held that Members of the ITAT are debarred from appearing before the ITAT only after retirement from service of the Tribunal and such conditions are not made applicable to a member discharged from service during the period of probation. It also held that the clarification sought by the respondent did not mean that he had not unconditionally accepted the offer of appointment and that the same could not be revoked. The Government challenged the said order in a Writ Petition. HELD by the High Court dismissing the Petition:
The bar under s. 129(6) that a Member “on ceasing to hold office” shall not be entitled to appear, act or plead before the Tribunal is applicable to a Member holding the post on substantive basis and not to a person demitting office as a probationer. The word ‘probation’ means the testing of the character, conduct or abilities of a person. A Member on probation cannot be said to be “holding office” because he has no vested right in the said office. The Service Rules also show that a distinction has been made between the appointment of a Member who is on probation and a Member who is confirmed. Also, the fact that the respondent sought a change in the place of posting and sought clarification does not mean that he had not unconditionally accepted the offer of appointment.
OFFHAND > For the common good, seek clarification on rather a more fundamental point of doubt, not being unrelated, that has come to the fore yet again; refer, –
1) CA JOURNAL, 2013 NOVEMBER ISSUE, KYE, pg 694; and
2) http://www.lawyersclubindia.com/forum/Re-Only-lawyers-entitled-to-practice-law–17080.asp
To be precise, the pointed query – Is it legally permi-ssible / -tted for a person qualified both as a CA and Advocate, hold cetrificates of practice , also prsctice concurrently as either, at his choice ?
The Bar council of India has yet to respond to the same query directly sent !
issues are indeed divergent in the case of a an earlier reply to the sec 129(6) of Customs Act. Hon court is indeed right a probationer cannot be treated as a substantial position holder. that way IAS probationers too. so to as any all india services, when probation word is attached.
Besides if ‘probation’ is treated as equal to ‘substantive’ then why there is a need of ‘probation at all will emerge that will be the immediate question.
CAT gave a sensible order. It is a wonder how appointing authorities are ignorant of very laws they serve? when so how ‘ignorance of law’ is permissible to appointing authorities to profess by appointing authorities? Does it show any man can be an appointing authority, does it mean?
I hope soon all HRD people in government must indeed qualify in the art of appointing people to important judicial posts ? Else that HRD fails in its role?
The importance is ig you appoint a novice in any important office naturally tax payers moneys are unnecessarily squandered as necessary frugality is vital in expending public exchequer moneys in unnecessary litigations. I believe sooner or later Hon high courts will fine that department to make good that loss to public exchequer that itself will make haphazard understandings of law. That way hon courts may do greater social justice to save public exchequer moneys.
secondly when a person has been admitted into Bar council that person automatically becomes substantive advocate not a probationer advocate so too any complete membership in professional bodies like CA. So how can a substantial CA can become substantial Advocate will be the question as he is one person whether he can do devote substantial time to profession is a vital question except exceptional genius.
Exceptions are not can be treated as a general rule, as normal memberships are granted not only too genius but mostly to normal member. So clubbing two substantial professions together may harm their respective clients, that is the logic behind.
Law works on logics not one’s convenience. So separate identities are given to make their respective area clients need not suffer that is the basis of Laws’ logic.
it is like when a person is Accused then he is no substantive crime committed person. that way you give bail to accused but to a committed criminal you cannot give bail just some furlough to give a grant of absence by legal leave to meet specific needs.
But now see several ‘Accused’ spend much more time in jail than if he is a confirmed criminal by a competent court. that is he is a substantive criminal.
Sad honorable courts do not realize how an Accused is kept indefinitely in jail while a criminal has a designated period of detention under any act where there is clear ‘mens rea’ guilty mind confirmed. So it is vital honorable courts need to decide when prosecution fails to prove the guilt before a substantial competent court within a speciied period the Accused need to be acquitted is my view some countries do it.
So word probation and substantial need to be properly decoded while decoding the ideation og those words as words have indeed a definite meanings but you cannot have your own innovative or creative meanings that way Laws came into being as there was too much confusion looming in the minds of people in the society.
professional is suppose to know how to decode every word connected to his profession, so he is designated as professional or else he loses his professional competence is my view , subject to discussion on ideation and decoding of words!