TMI Blog2019 (5) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... e that can be culled out from the above decisions is that unwarranted comments and remarks were not called for and what was important to bear in mind was as to whether the three cardinal tests laid down by the Hon'ble Supreme Court in the decision in the case of Mohammed Naim [ 1963 (3) TMI 63 - SUPREME COURT] had been complied with. One of those three tests is as to whether the party, whose conduct is in question is before the court or has an opportunity of explaining or defending himself. In the instant case, neither the officer of the Department nor its Senior Standing Counsel had an opportunity of explaining or defending themselves. Therefore, the first test laid down in the decision in the case of Mohammed Naim has not been fulfilled in the instant case. The second test is as to whether there is evidence on record bearing on that conduct justifying the remarks. We have carefully gone through the memo filed by the Department and the observations made by the learned Single Judge. The memo sought for an innocuous prayer to adjourn the matter by 15 days. It referred to engagement of a Special Counsel from New Delhi, who had been nominated pursuant to a request mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. We have heard Mr.T.Ravikumar, learned Senior Standing Counsel for the appellants. 3. Before we go into the contentions made by the learned Senior Standing Counsel for the appellants, we pose a question to ourselves as to whether we are required to issue notice to the respondent herein writ petitioner/assessee. To answer this question, we may straight away refer to a few decisions. One more question to be answered is as to whether the appeals filed by the Department would be sufficient to consider as to whether the remarks made by the learned Single Judge as against the Officer of the Department and its Senior Standing Counsel can be maintained. 4. In the decision in the case of State of Maharashtra Vs. Public Concern for Governance Trust [reported in 2007 (3) SCC 587], the State filed an appeal to expunge the remarks made against the Chief Minister of the State. The Hon'ble Supreme Court considered the questions as to whether the appeal filed by the State (State of Maharashtra) was maintainable and as to whether the State was competent to maintain the appeal for ordering expunction of remarks and observations/strictures made against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner therein. It was further pointed out that since the assessee in the said case was not concerned with the grievance, which had been made by the petitioner before the Hon'ble Supreme Court, it was not necessary to issue notice to him in the special leave petition. 8. The aforementioned decisions are clear answer to the query framed by us and consequently, we hold that the respondent herein writ petitioner/assessee is not concerned about the observations/ adverse remarks made against the officer of the Department and their Senior Standing Counsel and consequently, we hold that no notice is required to be issued to the respondent herein writ petitioner/assessee. 9. Having steered clear of this legal position, we will now examine one more crucial aspect, which has been brought to the notice of this Court even earlier when we dispensed with the production of the certified copy of the impugned order by a common order dated 26.3.2019 in CMP.Nos.7664, 7666, 7668, 7669, 7672, 7676 and 7680 of 2019 wherein we recorded reasons as to why the prayer needed to be granted, as the common order dated 31.1.2019 passed by the learned Single Judge was an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in entertaining the present appeals filed by the appellant - Department. 12. The impugned common order was passed by the learned Single Judge after a memo dated 29.1.2019 was filed by the appellant Department in the Registry on 29.1.2019. We have perused the said memo and we find that the prayer sought for in the said memo is for granting 15 days' time for final hearing of the said writ petitions, which were 7 in number. The sum and substance of what had been stated in the said memo was that the appellant Department wanted the said writ petitions to be adjourned by a period of 15 days so as to enable their Special Counsel, who had been nominated to appear in the matter before the Court and make his submissions. It had been further stated that on instructions given by the Special Counsel nominated by the Government, the said memo had been filed. The said memo had been signed by the Principal Director of Income Tax (Investigation), Chennai and filed before the Registry with the docket mentioning the names of the Standing Counsel appearing for the appellant Department. 13. The respondent herein writ petitioner/assessee filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration before courts of law unless it is really necessary for the decision of the case as an integral part thereof to animadvert on that conduct. Accordingly, the Hon'ble Supreme Court held that the adverse remarks against the appellant therein were neither justified nor called for. It was further pointed out that higher the forum and greater the powers, the greater the need for restraint and the more mellowed reproach should be. 17. In the decision in the case of A.M.Mathur Vs. Pramod Kumar Gupta [reported in 1990 (2) SCC 533], the former Advocate General of the State of Madhya Pradesh filed an appeal to expunge certain derogatory remarks made against him by the High Court. The Hon'ble Supreme Court pointed out that judicial restraint might better be called judicial respect i.e. respect by the Judiciary; respect to those, who come before the court as well as to other coordinate branches of the State, the Executive and the Legislature, that there must be mutual respect and that when these qualities fail or when litigants and public believe that the Judge had failed in these qualities, it will be neither good for the Judge nor for the judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of judicial exercise. The Hon'ble Supreme Court, at the very outset, pointed out that for disposal of the said appeal, there was no necessity to issue notice to the sole respondent therein namely the Registrar General of the High Court of Karnataka, as he would have nothing to say about the impugned directions and therefore disposed of the matter without bringing the respondent therein before the Court. 21. As pointed out by us earlier, the cases on hand are also on the same pedestal, as the respondent herein writ petitioner/ assessee can say nothing about the remarks made by the learned Single Judge against the officer of the appellant Department and their Senior Standing Counsel. 22. Reverting back to the decisions, the Hon'ble Supreme Court in the case of State of Karnataka Vs. Registrar General, High Court of Karnataka, referred to the decision in the case of Mohammed Naim and other decisions and set aside the directions/remarks made by the Division Bench of the High Court of Karnataka. 23. In the decision in the case of Manish Dixit Vs. State of Rajasthan [reported in 2001 (1) SCC 596], the Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reputation having been made without giving an opportunity were quashed. 28. In the decision in the case of Parkash Singh Teji Vs. Northern India Goods Transport Company Private Limited [reported in 2009 (12) SCC 577], the Hon'ble Supreme Court, while pointing out about the judicial restraint and discipline, referred to the decision in the case of `K', a Judicial Officer, In re, [reported in (2001) 3 SCC 54] wherein it was held that the overall test is that criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve. 29. In the decision in the case of Amar Pal Singh Vs. State of Utter Pradesh [reported in 2012 (6) SCC 491], the Court made observations as to how the Superior Court has to employ the language in a judgment and on facts, having found that the said procedure had not been followed, the Hon'ble Supreme Court expunged the remarks made therein. 30. In the decision in the case of Om Prakash Chautala Vs. Kanwar Bhan [reported in 2014 (5) SCC 417], the Hon'ble Supreme Court pointed out that reputation is fundamentally a glorious amalgam and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the questions, which fell for consideration is as to the what was the effect of an opinion given by a counsel to a party. It was held that the opinion given by a counsel was mainly based upon the records produced by his client and that the plaintiff had no right whatsoever to question the same or find fault with the opinion. 36. In the decision in the case of K.Ponnammal Vs. A.Loganathan [reported in 2010 (2) CTC 63], a learned Single Judge of this Court referred to Section 126 of the Indian Evidence Act and held that this protective umbrella also saves the counsel from unwanted and unnecessary proceedings. 37. The legal principle that can be culled out from the above decisions is that unwarranted comments and remarks were not called for and what was important to bear in mind was as to whether the three cardinal tests laid down by the Hon'ble Supreme Court in the decision in the case of Mohammed Naim had been complied with. One of those three tests is as to whether the party, whose conduct is in question is before the court or has an opportunity of explaining or defending himself. In the instant case, neither the officer of the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras High Court Rules to regulate the proceedings under Article 226 of The Constitution of India wherein there is a mention about affidavits, petitions, counter affidavits, reply to counter affidavits and other supplemental affidavits. Hence, it is submitted that filing a reply or rejoinder or surrejoinder cannot be stated to be outside the procedural rules. It is further pointed out that in the counter affidavit filed by the respondent herein writ petitioner/assessee to the memo filed by the Department before the learned Single Judge, there is a reference to Rule 2(d) of the said Rules and that the said Rule is no way applicable and irrelevant to the proceedings. 42. In our considered view, we need not dwell into this aspect, as we are required to decide as to whether the adverse remarks made by the learned Single Judge against the officer of the Department and its Senior Standing Counsel deserve to be expunged or not. 43. The learned Counsel for the appellants has contended that the Senior Standing Counsel, who had been nominated by the Department has had an excellent academic record from school days, that he has penned various articles, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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