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| DATE: | June 10, 2014 (Date of publication) |
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| Click here to download the judgement (SK_Garg_SK_Yadav_ITAT_contempt.pdf) |
High Court’s order on complaint of contempt by Judicial Member of ITAT against CA reveals sorry state of inter-se in-fighting between Hon’ble Members of the ITAT and members of the Bar
The Lucknow Income Tax Tribunal Bar Association passed a resolution, and addressed a letter to the President of the ITAT, stating that they had resolved not to appear before the Bench in which Sri B.R. Jain, Accountant Member, is one of the members. It was requested that the appeals be adjourned till such time a decision is taken by the President of the ITAT. The senior Member of the Bench, Hon’ble Sunil Kumar Yadav adjourned the matters. However, the other Member of the Bench, Shri. B. R. Jain, passed a separate order stating that certain practitioners had joined hands in “forum shopping” and that the allegations against him were “motivated, false, frivolous” and unacceptable. He also stated that being a junior member of the Bench, he was not objecting to the adjournment granted by the Sr. Member. Thereafter, one Mr. S. K. Garg, Advocate, filed a representation to the President in which he denounced the resolution passed by the Bar against Hon’ble B. R. Jain and claimed that B. R. Jain was “judicious”. At the same time, S. K. Garg made a complaint against Hon’ble S.K. Yadav and cited instances which according to him showed impropriety and judicial indiscipline by Hon’ble S.K. Yadav. Hon’ble S.K. Yadav took the view that the representation of S. K. Gard contained “scandalous and scurrilous allegations” with the object of “scandalizing” the Lucknow Bench and “intention to create fear/terror in the mind of members of the ITAT”. Though Hon’ble Sunil Kumar Yadav proposed an order for making reference for initiation of criminal contempt proceedings against the opposite parties u/s 15(2) of the Contempt of Court Act, Hon’ble B.R. Jain did not concur with the proposed order though he also did not pass any dissent thereon. Accordingly, Hon’ble Sunil Kumar Yadav filed a contempt petition in the High Court against S. K. Garg in his individual capacity. Hon’ble S. K. Yadav also passed an order stating that “in order to maintain the dignity of the institution” no appeal would be heard “unless and until Bar Association passes a resolution condemning this act of a particular advocate and reposing confidence in the bench ….” However, Hon’ble B.R.Jain passed a separate order disassociate and disagreeing with the view of Sunil Kumar Yadav. HELD by the Court on the said contempt petition:
(i) The reference made by Hon’ble Sunil Kumar Yadav singly is not a reference by a subordinate court within the meaning of s. 15(2) of the Contempt of Courts Act for the reason that the other member of the division bench has not concurred with it. While this does preclude the Court from taking suo motu cognizance of alleged criminal contempt, the facts and circumstances do not make out a case for criminal contempt against the opposite parties. Certain startling facts are noted. One Bar Association passes a resolution against the conduct of one member of the ITAT whereas members of another Bar Association condemn the same and lodge the complaint against the other member of the ITAT. Both the members of the Tribunal did not concur in their views on various occasions. The complainant who is the Judicial Member of the ITAT has gone even to the extent of saying in his order that the Tribunal will not hear any appeal unless and until Bar Association passes the resolution condemning the particular act of an Advocate of moving the representation against him. The complainant has even observed in the said order that Bar Association should pass the resolution in a particular manner giving assurance that in case of decision in the any case, no such type of representation or complaint will be made to the President of ITAT and further that the protection be given from President of the ITAT with the assurance that such type of complaint/representation would not be entertained and erring Advocate will be dealt with severely. The said view expressed by the complainant-S.K. Yadav, who is Judicial Member of the ITAT, though was not agreed to by the other member, namely, B.R. Jain, Accountant Member, however, such observations, as the one made by the complainant in a judicial order are unacceptable. Further, the instructions issued by the complainant, in his capacity as senior member of the Tribunal to the Assistant Registrar, ITAT, Lucknow to obtain consent of the individual assessees in respect of the application moved by the opposite party No.1 regarding transfer of cases from Lucknow Bench to some other Bench, also does not appear to be a sound act on his part, if measured or judged on acceptable judicial standards;
(ii) The language used in the representation dated 28.08.2012 also cannot be said to be in good taste, which we also do not appreciate, as the words like “deeper evil”, “conspiracy” and “ill motivated” have been used but the same in itself may not amount to criminal contempt. The emphasis of the representation made by the opposite party No.1, prima facie, appears to be on “judicial precedences” not allegedly being followed by the complainant and on the alleged “judicial indiscipline” and “impropriety”. It is well settled that proceedings under the Contempt of Courts Act are quasi-criminal in nature and hence, no action under the Act can be taken unless a clear case of criminal contempt is made out;
(iii) The lawyers and other representatives of the litigants in the subordinate courts and Tribunals are expected to conduct themselves in a manner which protects the dignity and decorum of the judicial proceedings. Use of words, as narrated above, by the opposite party No.1 in his representation is not worthy of approval. We express our hope that lawyers will always be guided by the following observations of Supreme Court in Hargovind Dayal Srivastava vs. G.N. Verma AIR 1977 SC 1334 “It is the duty of lawyers to protect the dignity and decorum of the judiciary. If lawyers fail in their duty, the faith of the people in the judiciary will be undermined to a large extent. It is said that lawyers are the custodians of civilization. Lawyers have to discharge their duty with dignity, decorum and discipline”.
The ITAT needs an impartial administration, a complete overhaul, and conscious efforts to motivate the Members to work hard and work fairly. Any partisan approach can only add to the troubles. Its time for the top management to rise to the occasion and lead by example. All the best !
One only hopes that this phase of the Tribunal is over soon and the ITAT can wor hard enough to reclaim the old glory.
Interesting insight about the “bar resolutions” at some stations.. It is difficult to believe that anyone can make it a pre codition for doing judicial work.
Ld. Hon S C observation in the Hargobind Dayal srivastava v GN Verma, AIR 1977, SC 1334 is indeed right and timely quoted. Sirs, it is only well behaved and good orderly behavior of Advocates only could make the court as a temple of justice, as the honorable judges only come mostly from lawyers community and so Advocates need to be the custodians of civilization is a very much a fact and when they adorn benches their judgements need to be honored yes if you do not agree to the judgement you have an appeal route very much there, that way knowledge can be better displayed is the doctrine of propriety, instead of personally attacking the judge is just uncouth behavior of any advocate as you have an appeal procedure on hand that way judicial system is functioning, as every one need not agree to subscribe to a particular judgement, there is a curative petitions even in hon Ld, HC and SC ids it not when you exhausted appeals procedure;
Indeed give respect and take respect is the tenet of civilization or any advanced culture behavior, though one might not agree to a particular thought line in a judgement.That does not mean you need to behave like an uncouth angry man, as anger only makes one uncouth, though one by nature might not be uncouth by nature;
Why we say when a client wants meaningless litigation Advocacy implies that he should advice the client not to proceed under unnecessary litigation route, but go be conciliation or mediation route as every legal problem is not necessarily legal as laws are never made to meet every conflict resolution as such, when so transactional lawyers always say prevent litigation by complying with a laid down law so that unnecessary litigation is nipped in the bud as that also saves unnecessary expenses, but unnecessary litigation would cost heavily the client financially too besides time consumption too;
so the mediation and conciliation procedure came into being right from international chamber of commerce (ICC, at Paris) ans so too followed world over since 1940 and modifications came in 1996 and so on so that clients unnecessarily suffer is the basic principle;
coming back here in the specific matter, the assessed as appellant or the revenue as appellant would suffer due to the mud slinging attitudes of advocates or any client or a person and this would definitely put him in wrong perception ever in any court as a person who would tend to play against judges that impression is not going to be any civilized work, so we conceived contempt procedures, no doubt honorable courts invariably looked at several angles on any contempt and rarely admit and conceive judgements, not as a regular affair but only in exceptional circumstances;
so my humble plea is that Adv Garg on his own volition withdraw his contempt of ITAT and that would help the honorable Ld ITAT MEMBERS would also withdraw once Adv Garg withdraws and submit a formal apology and apology is not a any degradation on Advocate but it would show his maturity as it is normal for any to get at logger heads but correction is a wisdom, so we say common sense itself is based upon the tenet of WISDOM which is a product of several centuries of experience in the life of man;
so English common law is always respected in England so also any judicial review is also a WISDOM instrument of the constitutional courts that is always accepted world over!
so kindly get resolved legal fraternity and justice fraternity – ERR IS HUMAN REPENT IS DIVINE is it not sirs!
No doubt ‘to err’ is , in every sense, ‘human’; but in order to ‘repent’ , first and foremost, the individual (s) who has erred has to soulfully awaken to the fact and realize that he has erred; also realize as to why the need for him to rid self of that abominable ‘ego’, admit, then repent. At the bottom of it all, it ought to be realized, with no reservation, that any such self-stimulated ‘friction’ between the bar and the bench goes to impair and jeopardize, unjustifiably so, the interests of the ligating parties – in a sense, ‘the paymasters’, and in turn, in no small measure, the very sacred institutions entrusted with solemn duties to administer and adjudicate.
Having noted the regularity with which such bizarre instances have surfaced in recent times, one is left irredeemably worried as to how far or how long such a pathetic state of affairs is fated or doomed to continue ?!
Being vexed, perhaps, practical solution to bring about an improvement may lie with the clientele whose interests have come to be eventually impaired and damaged. That is by their straightaway lawfully proceeding against such erring practitioners who have been responsible for the unsavory friction/ confrontation, for no fault of them and without concurrence.