PRADIP KUMARversusUNION OF INDIA AND ORS.

                    [2012] 9 S.C.R. 1141


                      PRADIP KUMAR                               A
                              v.
                UNION OF INDIA AND ORS.
              (Civil Appeal No. 9082 of 2012)

                   DECEMBER 14, 2012
                                                                  B
  [ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR
           AND J. CHELAMESWAR, JJ.]

   CUSTOMS EXCISE AND SERVICE TAX APPELLATE
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, F
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
                               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),
    Customs Excise and Service Tax Appellate Tribunal,
8
    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 one month notice has been made in r. 9(2).
[para 5 and 10) [1148-A-B, D-E, H; 1149-A; 1153-E]

     1.3 In the instant case, the order of discharge cannot
be upheld, as it is stigmatic and punitive in nature. It is a
matter of record that during three years of service no           E
order was issued extending the period of probation of the
respondent. He completed the mandatory period of
probation on 21.11.2007, therefore, it was expected of the
department to take a decision about the performance of
the respondent within a reasonable period from the expiry        F
of one year. The respondent continued in service without
receiving any formal or informal notice about the defects
in his work or any deficiency in his performance. It is also
a matter of record that the procedure for confirmation of
the respondent had been initiated on 26.11.2007 and              G
vigilance report for his confirmation had also been
received. Therefore, it cannot be said that the discharge
of the respondent is not founded on the complaint made
by some of the advocates and the report submitted by
the President, CESTAT. [para 6 and 11-12) [1153-F-H;             H
    1144    SUPREME COURT REPORTS               [2012] 9 S.C.R.


A 1154-A, F-G]
         P. Shere Dr. Vs. Union of India & Ors. 1989 (3) SCC 311-
    relied on

       2.1 The report prepared by the President, CESTAT on
B 18.11.2009, clearly indicated that the only reason for
  issuing the order of discharge was contained therein.
  There is clearly a live nexus between the decision to
  discharge the respondent and the disturbance caused by
  the members of the Bar in the Court of the appellant and
C his leaving the Bench and retiring to his Chambers. The
  report of the President prepared on 18.11.2009 leaves no
  manner of doubt that the respondent had been
  condemned unheard on the basis of the said incident.
  The order of discharge, being based upon the report of
D the President, CESTAT, is clearly stigmatic, punitive in
  nature and vitiated by the legal malice and could not have
  been passed without giving an opportunity to the
  appellant to meet the allegations contained in the said
  report. [para 12-13] [1154-G; 1155-A, E-H]
E
       2.2 This apart, the order of discharge has been
  passed in order to avoid the procedure of giving one
  month's notice as required under r.9(2) and an order was
  passed on 19.11.2009, extending the respondent's period
  of probation from 21.11.2007 to 21.11.2008 and further
F upto 21.11.2009. This was clearly done with an oblique
  motive of issuing the order of discharge on the very next
  day, i.e., 20.11.2009. The action of the Union of India is
  undoubtedly a colourable exercise of power. The order
  of discharge is arbitrary and, therefore, violates Art.14 of
G the Constitution. Consequently, this Court holds that the
  respondent is entitled to be reinstated in service with all
  consequential benefits. He shall be entitled to full back
  wages during the period he has been compelled to
  remain out of service. [para 14-15] [1156-D-G; 1157-A, D-
H E]
         PRADIP KUMAR v. UNION OF INDIA                  1145


     Union of India and Ors. Vs. Mahaveer C. Singh vi 2010       A
(9) SCR 246 = 201 o (8) sec 220 - relied on

                     Case Law Reference:
    1989 (3) sec 311             relied on          para 11
                                                                 B
     2010 (9) SCR 246            relied on          para 12
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9082 of 2012.
    From the Judgment and Order dated 27.07.2012 of the          c
High Court of Delhi at New Delhi in WP No. 98 of 2011.
                              WITH
Civil Appeal No. 9089 of 2012.
    Mukul Rohtagi, B.H. Marlapalle, Saurabh Kirpal, Bhaskar      D
Baisal and Nikhil Jain for the Appellant.
    K. Radhakrishnan, S. Wasim A. Qadri, Charul Sarin and
B. Krishna Prasad for the Respondents.
    The Judgment of the Court was delivered by                   E
     SURINDER SINGH NIJJAR, J. 1. Leave granted in both
the special leave petitions.
     2. By this common order, we propose to dispose of the
aforesaid two appeals as they are both directed against the      F
same judgmenf delivered by the High Court of Delhi in Writ
Petition [CJ No.98 of 2011 decided on 27th July, 2012. Appeal
arising out of Special Leave Petition No.34671 of 2012 has
been filed by the Union of India challenging the judgment on
various legal grounds. By the aforesaid judgment the High        G
Court has set aside the order passed by the Central
Administrative Tribunal [hereinafter referred to as the "CAT']
Principal Bench, New Delhi, dismissing QA No.3544 of 2009
on 9th December, 2010 whereby the respondent was
discharged from service. Appeal arising out of Special Leave     H
    1146     SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A Petition No.27821 of 2012 has been filed by Pradip Kumar
  challenging the judgment of the High Court, in so far as the said
  judgment limits the relief granted to him only to the extent of
  quashing of the order passed by the CAT and the order dated
  20th November, 2009, whereby he was discharged from
B service as Member [Judicial] in the Customs Excise and
  Service Tax Appellate Tribunal ["the CESTAT"].

        3. We will firstly take up the Civil Appeal No.......... of 2012
  arising out of Special Leave Petition No.34671 of 2012, filed
C by Union of India, for consideration.

       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
D 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]
E Appellate Tribunal Members [Recruitment and Conditions of
  Service] Rules 1987 [hereinafter referred to as the "Rules"]. The
  controversy ih 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:
F        "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
G        the period of probation in aggregate may not exceed three
         years.

         [3] A member may be discharged from service at any time
         during the period of probation without assigning him any
         reason.
H
         PRADIP KUMAR v. UNION OF INDIA                   1147
           [SURINDER SINGH NIJJAR, J.]

    Rule 9. Reversion or termination of the service of             A
    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     B
    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        C
    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      D
    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             E
    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 judicial member wishes to resign, he shall be
    required to give one month's notice to the Central             F
    Government."

     5. Under the aforesaid Rules, Member of the CESTAT is
put on probation for a period of one year (Rule 8(1 )].
Furthermore, under Rule 8(2), the period of probation may be
extended for a further period of one year at a time. However,      G
the total period of probation cannot exceed three years. Under
Rule 8(3) a Member may be discharged from service at any
time during th.e period of probation without assigning any
reason. This rule makes a general provision regulating the
period of probation of members Technical or Judicial,              H
    1148     SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A   irrespective of their source of recruitment. Rule 9 (1) and (2),
    on the other hand, deals with Technical or Judicial Members,
    recruited from two different sources. Rule 9(1) deals with
    members, who have been appointed whilst already in the
    service of the Central Government. In the case of such
B   Members a provision is made in Rule 9(1) to enable the Central
    Government to revert him to his parent post without assigning
    any reason, unless such a person is confirmed. Such Member
    can be reverted to his parent post after giving one month's
    notice of such reversion. If such a Member wishes to revert to
c   his parent post, he is required to give one month's notice to
    the Central Government. Under the proviso, services of such
    member can be terminated by giving one .month's notice,
    without assigning any reason, if he has already superannuated
    under the relevant rules of his parent post. Such member has
    a corresponding right to resign by giving one month's notice.
0
    We are, however, concerned only with Rule 9(2) 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
E   notice. Similarly in case the Judicial Member wishes to resign,
    he is required to give one month's notice to the Central
    Government. Rule 8 clearly operates within the period of the
    three years, during which a member can be continued on
    probation. Rule 9(2) would apply only in cases where the
F   Judicial Member is still not confirmed even 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
G   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
H   recruited from a Central Government post to be reverted to his
         PRADIP KUMAR v. UNION OF INDIA                 1149
           [SURINDER SINGH NIJJAR, J.]

parent post. To put Judicial member recruited directly from the A
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
ro~~~.                                                         B
     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 C
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 D
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:
                                                                E
     "F.No.26/8/2006-Ad.IC.
     Government of India
     Ministry of Finance
     Department of Revenue
     New Delhi the 20th Nov. 2009                               F
    ORDER N0.5 OF 2009

    In pursuance of rule 8(3) of the Customs, Excise and
    Service Tax Appellate Tribunal Members (Recruitment and
    Conditions of Service) Rules 1987, the President hereby G
    discharges forthwith Sh. P.K. Das, Member (Judicial) in
    Customs Excise & Service Tax Appellate Tribunal from
    service.

                                                               H
    1150        SUPREME COURT REPORTS             [2012) 9 S.C.R.


A       2. By order and in the name of the President.
                                                               Sd/-
                                                    (Victor James)
                              Under Secretary to the Govt. of India
        To,
B
        Sh. P.K. Das, Member (Judicial)
        CESTAT, West Block No.2
        R.K. Puram, New Delhi

c       Copy to:

           1.    President, Customs, Excise & Service Tax
                 Appellate Tribunal, New Delhi.

           2.    Registrar, Customs Excise & Service Tax Appellate
D                Tribunal, New Delhi.

           3.    Establishment Officer, Department of Personnel &
                 Training North Block.

           4.    Pay and Accounts Officer, Department of Revenue
E
           5.    Notification Folder
                                                               Sd/-
                                                   (Victor James)
                             Under Secretary to the Govt. of India"
F
    It appears that thereafter by letter dated 23rd October, 2009
    the respondent withdrew his resignation under Rule 9(2), which
    was well within the prescribed period of one month.

       7. During the period of his service the respondent had
G 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.
H In fact, he was given the annual increments in the years 2007
          PRADIP KUMAR v. UNION OF INDIA                     1151
            [SURINDER SINGH NIJJAR, J.]

and 2008. Since, he had received no adverse reports, the               A
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.              B
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,       c
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
                                                                       0
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           E
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 the complaint from the members
of the Bar about an incident which was alleged to have occurred
in the respondent's Court on 9th September, 2009 and                   F
requesting for a report about the incident. The President of the
CESTAT prepared a report on 18th November, 2009
regarding the incident, which inter alia, contained the following
observations regarding the conduct of the respondent:

     "15. It must be noted that whenever any act of misbehavior        G
     on the part of the parties or their representatives takes
     place in the court, it is essentially for the Presiding Officer
     to administer proper control and to try to defuse the tension
     if any caused on that count and not to retire immediately
     to the chamber. Abstaining from and abandoning the court          H
    1152      SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A       in such a situation and leaving it open and free for all court
        result is encouraging indiscipline in the court. Merely
        because some of the representatives of the parties start
        raising voice or make allegations against the Bench, it
        would not be proper to abandon the court functioning and
B       to retire to chamber. Rather the Presiding Officer has to
        try to control such situation by use of administrative
        acumen. In the case in hand, there does not appear any
        efforts made by the Presiding Officer in that regard."

  The respondent claims that his services were terminated as a
C direct consequence of the complaint made by the
  representatives of the Bar and the report of the President,
  CESTAT.

         9. Aggrieved by the aforesaid order, the respondent
D   challenged the same before the CAT by way of OA No.3544
    of 2009 on 7th December, 2009. On 9th December, 2009, the
    QA was dismissed by the CAT. The CAT rejected the
    submission that the respondent was deemed to be confirmed
    upon completion of one year period of probation. In any event
E   it seems respondent had dropped the contention regarding the
    deemed confirmation after some arguments initially and upon
    considering the judgment of the CAT in QA No.1895 of 2009 -
    Dr. Vineet Sodhi Vs Union of India decided on 6th December,
    2010. CAT also rejected the submission of the respondent that
F   the order of discharge from service was punitive in nature. It
    was held by CAT that even though report had been received
    from the President, CESTAT regarding the complaint made by
    the Members of the Bar, ultimately the discharge of the
    respondent was on the basis of his unsuitability of the job and
    unsatisfactory performance of duty. It was also observed by the
G   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 QA was dismissed.

H          10. The respondent being aggrieved challenged the order
          PRADIP KUMAR v. UNION OF INDIA                     1153
            [SURINDER SINGH NIJJAR, J.]

before the High Court of Delhi by way of Writ Petition [CJ No.98      A
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          B
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       c
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 and,
therefore, the termination was bad. Fourthly, it was submitted
that by virtue of Rule 8 of the Rules the respondent could be
                                                                      0
deemed to have been confirmed. The High Court on
interpretation of Rules 8 and 9 of the Ru.les has held that since
the respondent had completed more than three years service
and he was a Judicial Member, under Rule 9(2) his services
could not be terminated without serving upon him one month's
notice. In our view, the interpretation given by the High Court       E
on Rule 9(2) is not correct. In the case of Judicial Member
directly recruited from the Bar, the procedure prescribed under
Rule 9(2) is required to be followed only if such member without
being confirmed continues for three years or more.
                                                                      F
      11. Nonetheless the order of discharge cannot be upheld,
as it is stigmatic and punitive in nature. It is a matter of record
that during three years of service no order was issued
extending the period of probation of the respondent. He
completed the mandatory period of probation on 21st                   G
November, 2007, 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. It is also
a matter of record that the respondent continued in service
without receiving any formal or informal notice about the defects     H
    1154     SUPREME COURT REPORTS                 [2012) 9 S.C.R.


A   in his work or any deficiency in his performance. This Court, in
    the case of Sumati P. Shere Dr. Vs. Union of India & Ors. 1,
    emphasised the importance of timely communication of defects
    and deficiencies in performance to a probationer, so that he
    could make the necessary efforts to improve his work. Non-
8   communication of his deficiencies in work would render any
    movement order of such an employee on the ground of
    unsuitability arbitrary. In Paragraph 5 of the judgment, it is
    observed:-

        "5. We must emphasise that in the relationship of master
c       and servant there is a moral obligation to act fairly. An
        informal, if not formal, give-and-take, on the assessment
        of work of the employee should be there. The employee
        should be made aware of the defect in his work and
        deficiency in his performance. Defects or deficiencies;
D       indifference or indiscretion may be with the employee by
        inadvertence and not by incapacity to work. Timely
        communication of the assessment of work in such cases
        may put the employee on the right track. Without any such
        communication, in our opinion, it would be arbitrary to give
E       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.
F      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
G 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 indicate'd that the only reason for issuing the order of

H 1. (1989) 3 sec 311.
           PRADIP KUMAR v. UNION OF INDIA                   1155
             [SURINDER SINGH NIJJAR, J.]

discharge was contained in the aforesaid report. In our opinion      A
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              B
reaffirmed in the case of Union of India and Ors. Vs. Mahaveer
 C. Singhvi2 • Considering the similar circumstances this Court
observed as follows:

      "25. In the facts of the case the High Court came to the
      conclusion that a one-sided inquiry had been conducted         C
      at different levels. Opinions were expressed and definite
      conclusions relating to the respondent's culpability were
      reached by key officials who had convinced themselves in
      that regard. The impugned decision to discharge the
      respondent from service was not based on mere suspicion        D
      alone. However, it was all done behind the back of the
      respondent and accordingly the alleged misconduct for
      which the services of the respondent were brought to and
      end was not merely the motive for the said decision but
      was clearly the foundation of the same."                       E

     13. In our opinion, there is clearly a live nexus between the
decision to discharge the respondent vide order dated 19th
November, 2009; the disturbance caused by the members of
the Bar in the Court of the respondent and his leaving the Bench     F
and retiring to his Chamber. The report of the President leaves
no manner of doubt that the respondent had been condemned
unheard on the basis of the aforesaid incident and the report
of the Chairman, CESTAT dated 18th November, 2009. The
order of discharge, being based upon the report of the               G
President, is clearly stigmatic and could not have been passed
without giving an opportunity to the respondent to meet the
allegations contained in the Jeport of the President, CESTAT.
We may notice here the observations made by this court in the
2.   120101 s sec 220.                                               H
    1156     SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A   case of Mahaveer C. Singhvi [supra]:

         "46. As has been held in some of the cases cited before
         us, if a finding against a probationer is arrived at behind
         his back on the basis of the enquiry conducted into the
         allegations made against him/her and if the same formed
8
         the foundation of the order of discharge, the same would
         be bad and liable to be set aside. On the other hand, if no
         enquiry was held or contemplated and the allegations
         were merely a motive for the passing of an order of
         discharge of a probationer without giving him a hearing,
c        the same would be valid. However, the latter view is not
         attracted to the facts of this case."

         14. This apart, we are also of the opinion that the order of
    discharge has been passed in order to avoid the procedure of
D   giving one month's notice as required under Rule 9(2). The
    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
E   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
F   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
G   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,
H   2009. The action of the Union of India is undoubtedly a
          PRADIP KUMAR v. UNION OF INDIA                     1157
            [SURINDER SINGH NIJJAR, J.]

colourable exercise of power. The order of discharge is in utter       A
violation of Article 14 of the Constitution of India, rendering the
same void. In view of the above, we have no hesitation in
holding that the special leave petition No. 34671 of 2012 filed
by the Union of India is wholly devoid of merit and has to be
dismissed.                                                             B

      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        C
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      D
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          E
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 ................. of 2012 arising out of   F
Special Leave Petition [CJ No. 34671 of 2012 is dismissed
and Civil Appeal No ................. of 2012 arising out of Special
Leave Petition [CJ No. 27821 of 2012 filed by the Pradip Kumar
is allowed.

R.P.                                       Appeals disposed of.        G