Ramesh Nair to be Member CESTAT again?
CESTAT Members discharged during probation entitled to practice
FORMER Members of CESTAT are not allowed to practice before the CESTAT. Does this bar apply to a Member who is not confirmed, but discharged during probation?
If an advocate practicing in CESTAT is appointed as a Member at the age of 45 and if he is not confirmed within two years but discharged - at the age of 47, is he permanently barred from practicing in the CESTAT for the sin of being a Member under probation for two years?
Ramesh Nair was appointed as a Member (Judicial) in CESTAT (Please see - 21.09.2012) vide Office Memo F.No.A-12026/ 1/20 11-Ad.IC (CESTAT) dated 13.09.2012. The OM was modified on 19.9.2012 to the extent that instead of a term of 5 years from the date of entry upon the office, the offer was made for appointment until the age of superannuation, i.e. 62 years.
He sought a clarification "whether a member is entitled to practice and appear in CESTAT after he is discharged from service for any reason given by either side during the period of probation." He was informed that the words "on ceasing to hold office", is applicable to all types of cessation-whether it is retirement or resignation or discharge during probation or by any other way. He filed an application in the CAT challenging this communication and sought a direction to the Ministry to appoint him as Member in CESTAT without being subjected to embargo of Section 129 (6) of Customs Act, 1962 and Central Excise Act, 1944 in the event of his ceasing to hold office as Member before the expiry of period of probation. While the issue was pending in the CAT, the Government withdrew the offer of appointment.
We understand that the CAT recently held that a member of the Tribunal discharged from service during probation period may not be debarred from practicing before it and the provision of Section 129 (6) of Customs Act, 1962 would be applicable only to such Members who cease to hold office only after their confirmation. The phrase "on ceasing to hold office as Member" used in Section 129 (6) would not include discharge of probation and only a Member who is confirmed to hold office in such capacity can be said to have ceased to hold the same. Since a probationer does not acquire any lien on the post of Member before its confirmation, there is no question of his ceasing to hold the same.
It is understood that the CAT has allowed the application with consequential benefits and this may find Ramesh Nair back in CESTAT.