9911796707
TMI Blog1998 (11) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... , Government of India, and the Union of India who were respondents Nos. 1 and 2 therein from interfering with the powers of the President of the Income-tax Appellate Tribunal to assign work to any member, to constitute Benches and to require a member to sit on any Bench wherever situate, and for such duration, as he may deem necessary. This petition was transferred to this court. This court by its order dated March 31, 1997, confirmed the interim order passed by the High Court. Another similar petition filed before the High Court of Andhra Pradesh was also transferred to this court, Both these petitions are pending. In the pending petitions, the present application is being made by the Income-tax Appellate Tribunal through its President. The occasion for making this application has arisen on account of an order dated October 23, 1997, passed by a Bench of the Income-tax Appellate Tribunal consisting of two members, one judicial and one accountant. The said order was passed in the case of Smt. Neer a Birla v. Asst. CIT for the assessment year 1992-93. As a result of the said order, the assessee who claimed a benefit amounting to Rs. 1,50,00,000 was denied that benefit by the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reservations of the views expressed in the draft order. Thereafter, both the members met and discussed the issues involved. At the end of the discussion, the Judicial Member agreed with the view taken by the Accountant Member and requested the Accountant Member to prepare an order on those-lines. The Accountant Member thereafter sent a draft order signed by him to the Judicial Member. The Judicial Member fully agreed with the draft order sent by the Accountant Member, put his signature on the draft order and the final order dated October 23, 1997, was issued with both the signatures. Both have stated that there are no two orders. The so-called first order was only a draft prepared by the Judicial Member which was not agreed to by the Accountant Member and ultimately after discussion a new draft order was prepared by the Accountant Member which is signed by both the members on October 23, 1997. This was the only order which was issued and copies were sent to the assessee as well as to the Department. Both the members also expressed surprise and distress at a confidential document like a draft judicial order reaching the first respondent. Before the applicant could send any reply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viewed the letters as serious interference with the administration of justice particularly in the context of the pending petitions. Thereafter, the present application has been filed. A. K. Sonik, Deputy Secretary in the Department of Legal Affairs, Ministry of Law and Justice, has also been made a party-respondent in this application because of the letter dated December 29, 1997, received from the Deputy Secretary just before the letter from the first respondent dated December 30, 1997. In the letter of December 29, 1997, the applicant was told that on a perusal of the summary statement showing institution, disposal and pendency of appeals before the Tribunal during the month of October, 1997, it appears that disposal has considerably gone down during the month of October, 1997, and the applicant should look into the matter and send a report on the reasons for this. According to the applicant, the disposals were within the norms, but were less than the previous month. And the letter was merely to intimidate him. The second respondent has, in his affidavit, stated that this letter was issued on the instructions of the first respondent and the letter was handled by the first resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. Article 129 of the Constitution provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. This article has come up for consideration on numerous occasions. This court has consistently held that the Supreme Court has power under this article to punish, not merely for contempt of itself, but also for contempt of all courts and Tribunals subordinate to it. In the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat, AIR 1991 SC 2176 ; [1991] 3 SCR 936, this court examined at length the power of this court under article 129 to punish for contempt. This court first examined the jurisdiction of the Supreme Court and held: "There is therefore no room for any doubt that this court has wide power to interfere and correct the judgment and orders passed by any court or Tribunal in the country. In addition to the appellate power, the court has special residuary power to entertain appeal against any order of any court in the country. The plenary jurisdiction of this court to grant leave and hear appeals against any order of a court or Tribunal confers p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact of the inclusive power conferred on the Supreme Court. Since the Supreme Court is designed by the Constitution as a court of record and as the founding Fathers were aware that a superior court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression 'including' was deliberately inserted in the article. Article 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts." This view was reiterated and reaffirmed in the case of In re: Vinay Chandra Mishra, AIR 1995 SC 2348 ; [1995] 2 SCC 584, where this court affirmed the decision in Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat, AIR 1991 SC 2176. After quoting extensively from the said judgment, this court held that since this court has the power of judicial superintendence and control over all the courts and Tribunals functioning in the country, it has a corresponding duty to protect and safeguard the interests of inferior courts to ensure that the flow of the stream of justice in the courts remains unsullied by any interference o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with power to punish not only for contempt for itself but also contains the inherent jurisdiction of the court to punish for contempt of subordinate courts and Tribunals in order to prevent interference in the due administration of justice, this court also clarified the position of a party which brings the contumacious conduct of the contemned to the notice of the court. It said: that the party which brings such conduct to the notice of the court, whether a private person or the subordinate court, is only an informant and does not have the status of a litigant in the contempt of court case. The case of contempt is not stricto sensu a cause or a matter between the parties, inter se. It is a matter between the court and the contemner. Whenever an act adversely affects the administration of justice or tends to impede its course, or shake public confidence in a judicial institution, the power can be exercised to up hold the dignity of the court of law and protect its proper functioning. It is in the light of these principles that one has to examine section 2(c) of the Contempt of Courts Act, 1971. Section 2(c) is as follows:-- "Section 2(c) : 'Criminal contempt' means the publicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the two so-called "orders" and had said that the so called contradictory orders disclosed judicial impropriety of the highest degree. He had demanded action against the Members of the Tribunal. Questioning of a decision given in a particular case, or the conduct of a Member of the Tribunal in deciding a case by the Law Secretary who has the power to write confidential reports of the Tribunal Members, is bound to be perceived by the Members as an attempt to affect their decision making. It is a clear threat to their independent functioning. The letter also tends to undermine confidence in the judicial functioning of the Tribunal. In re Hira Lal Dixit, AIR 1954 SC 743 ; [1955] 1 SCR 677, this court observed that it was not necessary that there should be an actual interference with the course of administration of justice. It is enough if the offending act or publication tends in any way to so interfere. If there are insinuations made which are derogatory to the dignity of the court and are calculated to undermine the confidence of the people in the integrity of the judges, the conduct would amount to contempt. In the case of C.K. Daphtary v. O. P. Gupta, AIR 1971 SC 1132 ; [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the letters were written by him bona fide in the exercise of his right to control the functioning of the Tribunal. He has pointed out that the Tribunal functions under the Department of Law and Justice. The Rules of Recruitment provide that the Law Secretary should be a member of the Selection Board which selects the Members of the Tribunal. The confidential reports of the Tribunal's Members are written by the Law Secretary. The Ministry of Law and Justice, Department of Legal Affairs, exercises disciplinary powers over the Members of the Tribunal. The Allocation of Business Rules of the Government of India place the Income-tax Appellate Tribunal under the Department of Legal Affairs, Ministry of Law and Justice. He contends that the two letters were written by him in the legitimate exercise of his power of supervision and control ; and these could not be construed as contempt. In this connection, the first respondent has placed reliance upon a decision of this court in Rizwan-Ul-Hasan v. State of Uttar Pradesh, AIR 1953 SC 185 ; [1953] SCR 581, where the court said that since the alleged contemner had the duty to supervise the work of the trying Magistrate, the alleged con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 35 of the Income-tax (Appellate Tribunal) Rules, 1963, which regulate the procedure of the Appellate Tribunal. Under rule 34 which deals with final orders to be passed, it is provided as follows : "34(1) : The order of the Bench shall be in writing and shall be signed and dated by the Members constituting it." Rule 35 provides as follows : "35 : The Tribunal shall, after the order is signed, cause it to be communicated to the assessee and to the Commissioner." Therefore, unless the order of the Bench is signed by all Members constituting it and is dated, it is not an order of the Appellate Tribunal. Secondly, this signed and dated order has to be communicated both to the assessee and to the Commissioner. The first respondent has noted in the letter of December 30, 1997, that the first so-called "order" only bears the signature of one Member. It is not signed by the Second Member, nor does it bear any date. He ought to have verified whether this so called first "order" had been communicated to the assessee or to the Commissioner. Had he done so, so he would have found that such an "order" does not exist and no such order has been communicated either to the assessee or to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d tends to undermine the dignity of the post of the President of the Appellate Tribunal. It is unbecoming of the Law Secretary to issue such "commands" to the President of the Income-tax Appellate Tribunal ordering him to send reports within a few days and threatening that adverse inferences would be drawn if the report is not so sent---and all this without even bothering to check whether the complaint received by him was a genuine complaint or not ! The first respondent, although he received the pseudonymous complaint of November 15, 1997, seems to have written a letter to the so called sender of the complaint only on January 12, 1998, and that too asking only for a confirmation whether the complaint was made by that person. When he wrote the letter of December 30, 1997, he had not even checked the veracity of the complaint. Thereafter, although the first respondent had not received any response to his letter of January 12, 1998, he did not hesitate to address the letter of February 3, 1998, to the President of the Tribunal. In our view this kind of conduct and that too on the part of the Law Secretary, who is expected to maintain the independence of the Income-tax Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
