Case Law Details

Case Name : State Of U.P Vs S.K. Garg, Advocate And Another (Allahabad High Court)
Appeal Number : Contempt no. - 310 of 2013
Date of Judgement/Order : 28/05/2014
Related Assessment Year :
Courts : All High Courts (3801) Allahabad High Court (208)

 Allahabad High Court

Case :- CONTEMPT No. – 310 of 2013

Applicant :- State Of U.P.

Opposite Party :- S.K. Garg, Advocate And Another

Counsel for Applicant :- Govt. Advocate

Counsel for Opposite Party :- Rajan Roy

Hon’ble Imtiyaz Murtaza,J.

Hon’ble Devendra Kumar Upadhyaya,J.

(Delivered by Hon’ble Devendra Kumar Upadhyaya,J)

The opposite parties-(1) S.K.Garg, a practicing Advocate and (2) Pradeep Kumar Kapoor, the Chartered Account practicing in the Income Tax Appellant Tribunal, Lucknow (hereinafter referred to as “ITAT, Lucknow”) have been called upon to show cause as to why they should not be punished for committing contempt of the court under the Contempt of Courts Act, 1971 (herein after referred to as ‘Act’), on a reference made by Sri Sunil Kumar Yadav, the senior member of ITAT, Lucknow Bench under Section 15(2) of the Act. The said reference was routed through the Hon’ble Contempt Committee of this Court which recommended initiation of the criminal contempt proceedings against the aforesaid opposite parties and with the approval of the then Hon’ble the Acting Chief Justice, the matter has been placed before this Court.

Notices were issued to the opposite parties on 04.07.2013, on which separate replies have been filed by the opposite parties.

The facts mentioned in the reference made by Sri Sunil Kumar Yadav, the Senior Member of ITAT are extracted herein below:

The ITAT has been constituted under Section 252 of the Income Tax Act, 1961. Each Bench of the ITAT comprises of one Judicial Member and one accountant member. The ITAT has been entrusted to adjudicate the appeals arising out of the orders passed by the Chief Commissioner of Income Tax, Commissioner of Income Tax and Commissioner of Income Tax (appeals) under the Income Tax Act, Wealth and Interest Tax Act. The Lucknow Bench of ITAT exercises its jurisdiction over the districts of Barabanki, Bareilly, Basti, Bahraich, Faizabad, Gonda, Hardoi, Kanpur Dehat, Kanpur, Lucknow, Lakhimpur Kheri, Pilibhit, Raebareli, Shahjanpur, Sitapur and Unnao.

It has been asserted in the reference that this Court is well within its jurisdiction to initiate criminal contempt proceedings as ITAT, Lucknow can be termed to be a “subordinate court” within the meaning of the said word occurring in Section 15 (2) of the Act.

It has also been stated that on 27.08.2012, a letter signed by the President and Secretary of Lucknow Income Tax Tribunal Bar Association was received by the Senior Member of ITAT, Lucknow attaching therewith a copy of the letter dated 25.08.20 12, addressed to the President of Income Tax Appellate Tribunal, Member. In the said letter dated 27.08.2012, it was prayed that since the members of the Lucknow Income Tax Tribunal Bar Association have resolved not to appear before the Bench in which Sri B.R. Jain, the Accountant Member is one of the members, therefore the appeals be adjourned till such time a decision is taken by the President of the ITAT on the letter of Lucknow Income Tax Tribunal Bar Association dated 25.08.2012. On the said letter, an order by the Senior Member of ITAT, Lucknow, Sunil Kumar Yadav (hereinafter referred to as “complainant”), on whose reference the present proceedings have been initiated, was passed on 27.08.2012 stating therein that since the Bar has expressed its reservations through representation to the President of ITAT against the combination of the Bench, the matters are adjourned to 01.10.2012.

A separate order was passed on the same day by the Accountant Member, B.R. Jain stating therein that certain practitioners before the Tribunal have joined hands in “forum-shopping”. The allegations in the application are motivated, false, frivolous and, thus, unacceptable. The Accountant Member further expressed in the said letter that being junior member of the Bench, he did not object to the discretion being exercised by the Senior Member of the Bench in adjourning the hearing of the cases.

It has further been stated that during hearing of appeals in the cases of M/s Rotomac Global (P) Limited, Kanpur Vs. DCIT and Income Tax Officer VI (4) Vs. Sri Suneet Kumar Rastogi, an application was moved on 30.08.2012 for adjournment by Sri Pradeek Kumar Kapoor-opposite party No.2, a Chartered Accountant and authorized representative of the assessee. The said adjournment application was accompanied by a representation dated 28.08.2012 made by Sri S.K. Garg- opposite party No.1 before the President of ITAT, Mumbai raising certain allegations regarding functioning of the Tribunal at Lucknow. The said representation dated 28.08.2012 made by the opposite party No.1, inter alia, mentions the resolution dated 25.08.2012, passed by the Lucknow Income Tax Tribunal Bar Association. In the said representation, the opposite party No.1 further states that some members of the profession might have found the behavior of B.R. Jain, the Accountant Member to be awkward and embarrassing but for that, members of the profession themselves are to be blamed.

From perusal of the representation, it appears that S.K. Garg did not favour or approve the resolution dated 25.08.2012, passed by the Lucknow Income Tax Tribunal Bar Association complaining against the behaviour of the Accountant Member of the Tribunal, B.R. Jain. The opposite party No.1 in his representation further appreciates the approach of B.R. Jain as being judicious and states that the said Accountant Member never caused and meant undesirable or humiliating situations for the counsels. Representation/letter dated 28.08.2012 clearly states that opposite party No.1 and other members of the profession disapproved the resolution dated 25.08.2012, passed by the Lucknow Income Tax Tribunal Bar Association.

However, while denouncing the resolution passed by the Lucknow Income Tax Bar Association against the conduct of the Accountant Member-B.R. Jain, the opposite party No.1- S.K. Garg in his letter/ representation dated 28.08.2012 made a complaint against the functioning of the complainant S.K. Yadav, the Judicial Member. Mentioning certain instances, the letter dated 28.08.2012 complaints of impropriety and judicial indiscipline against the complainant. In light of the assertions made in the said letter/representation dated 28.08.2012, the opposite party No.1-S.K. Garg made a request to the President of Income Tax Appellant Tribunal, Bombay to permit him to submit a list of the pending cases in which he represents a party so that such cases may be transferred either at Agra Bench or Delhi Bench.

The complainant in his reference has further stated that the contents of the adjournment application moved through Pradeep Kumar Kapoor, the authorized representative and those of the representation dated 28.08.2012 were read in open court by the opposite party No.2-Pradeep Kumar Kapoor during the course of hearing on 30.08.2012. Complainant further states that the representation addressed to the President, ITAT made by opposite party No.1 contains scandalous and scurrilous allegation against the complainant, besides criticizing the orders authored by the complainant in several cases. The reference made by S.K. Yadav contains extracts from the orders authored by him as Senior Member of the Bench as mentioned in the representation dated 28.08.2012 and it also quotes extensively the extracts from the representation dated 28.08.2012 made by the opposite party No.1. It has further been stated in the reference that the adjournment application made by the opposite party No.2- Pradeep Kumar Kapoor was disposed of by passing an order whereby the complainant recused himself from all the cases being represented by opposite party No.1 and directed the Registry of ITAT to adjourn all the cases sine die where S.K. Garg-opposite party No.2 appears for either of the parties.

The sum and substances of the reference is that by the representation dated 28.08.2012 made by the opposite party No.1, the ITAT, Lucknow Bench has been scandalized through the opposite party No.1-Pradeep Kumar Kapoor with the intention to create fear/terror in the mind of members of the ITAT. It has also been stated in the reference petition that since contents of the adjournment application dated 30.08.2012 moved by the Pradeep Kumar Kapoor- opposite party No.2 and those of the representation dated 28.08.2012 made by S.K. Garg were read in open court, hence, opposite parties are guilty of committing criminal contempt for the reason that by reading the contents of the adjournment application and the representation (which according to the complainant contains scandalous and scurrilous allegations against the complainant), opposite parties have publicized the contents of the adjournment application and the representation which scandalizes the Tribunal and further tends to interfere with due course of judicial proceedings.

It has, thus, been stated by the complainant that by reading the contents of adjournment application and the representation in open court, the contents of these two documents have been made public during course of hearing of the appeal, hence both the opposite parties are guilty of committing criminal contempt.

After noticing the aforesaid contents of the reference made by the complainant, we may also notice, as stated in the reference itself, that though Sunil Kumar Yadav, Senior Member of the ITAT proposed an order for making reference for initiation of criminal contempt proceedings against the opposite parties to this Court under Section 15(2) of the Contempt of Court Act and sent the said order with the file to the other member of the ITAT, Sri B.R. Jain, who is Accountant Member, for his approval and signature but the Accountant Member did not concur with the proposed order nor did he pass any dissent on the order passed by Sunil Kumar Yadav for making reference to this Court.

In these circumstances, it has been stated by the complainant-Sunil Kumar Yadav, Senior Member of ITAT that he has made the reference individually to this Court under Section 15(2) of the Contempt of Court Act.

As observed above, on the application moved by Pradeep Kumar Kapoor-opposite party no.2, the complainant passed an order on 30.08.2012 recusing himself in all the cases being represented by S.K.Garg- opposite party no.1. However, the other member of the ITAT, namely, B.R.Jain, the Accountant Member passed a separate order in the following terms:-

“Per B.R.Jain, Accountant Member

It is neither proper nor considered necessary at this stage to agree or comment on the subjective views expressed by the learned Judicial Member in the noting herein above. However, for the sole reason that S.K.Yadav recuses himself from hearing in all the cases which are being represented by S.K.Garg, learned Advocate the grant of adjournment on that ground is not objected”.

Sd/-

B.R.Jain Accountant Member 30.06.2008”

From the facts narrated in the reference made by S.K.Yadav, it appears to us that there was a difference of approach between the two learned members of ITAT, Lucknow Bench in dealing with the situation which had arisen on account of resolution passed by Lucknow Income Tax Tribunal Bar Association and on account of representation dated 28.08.2012 made by S.K.Garg- opposite party no.1 to the President, ITAT complaining against the conduct of complainant seeking transfer of cases to any other Bench of ITAT, either at Agra or Delhi.

Reply to the show cause notice issued by this Court has been filed by S.K.Garg- opposite party no.1 in which at the outset he has submitted his unconditional and unqualified apology for any act or omission. However, he has stated that he has put in almost 40 years of practice in the field of taxation before various forums and that he has the highest regard for this Court and the Tribunals and that it has never been his intent to scandalize or tend to scandalize or lower the authority of the Court or the Tribunal or to interfere or tend to interfere with the due course of any judicial proceedings or to obstruct the same. It has also been stated by opposite party no.1 that he is the elected President of Income Tax Appellate Tribunal Bar Association at Allahabad.

He has further stated in his reply that neither he nor his associate Pradeep Kumar Kapoor-opposite party no.2 were parties to the resolution dated 25.08.2012 passed by Income Tax Tribunal Bar Association, Lucknow. Opposite party no.1 has also mentioned the order passed by the complainant on 27.08.2012 on the application for adjournment coupled with the resolution dated 25.08.2012, passed by Income Tax Tribunal Bar Association, Lucknow against the conduct of the other member of the Tribunal. He has also referred to the separate order passed by B.R.Jain on 27.08.2012. In his reply, S.K.Garg has also stated that apart from Income Tax Tribunal Bar Association there is another Bar Association at

Lucknow, namely, Income Tax Bar Association, Lucknow which is a larger representative body of the professionals and is distinct from Income Tax Tribunal Bar Association.

He has averred that Income Tax Bar Association had condemned the complaint made and resolution passed against B.R.Jain, Accountant Member. Regarding representation dated 28.08.2012 made by the opposite party no.1, he, in his reply, has submitted that the same was made to the President, ITAT, Mumbai “most confidential and urgent” in response to the resolution dated 25.08.2012 passed by the Income Tax Tribunal Bar Association, Lucknow against the Accountant Member expressing reservations and objections to the said resolution. He has asserted in the reply that in the representation dated 28.08.2012 he had also made certain complaints about the functioning of the complainant­S.K.Yadav, the Judicial Member of ITAT. In his reply, he further stated that as per information provided to him by the opposite party no.2-Pradeep Kumar Kapoor on 30.08.2012, the complainant after going through the application for adjournment took offence and ordered Pradeep Kumar Kapoor to read certain paragraphs of the adjournment application and also the extracts from the representation dated 28.08.20 12. S.K.Garg further states that it was only on the direction of the complainant-S.K.Yadav, the Judicial Member, that the opposite party no.2 read out certain paragraphs of the adjournment application and few lines from his representation dated 28.08.20 12 with great reluctance.

It has also been stated in the reply filed by the opposite party no.1 that on 31 .08.2012 when the Members of Income Tax Bar Association which had condemned the resolution dated 25.08.2012 passed by the Income Tax Tribunal Bar Association appeared before the Bench, the complainant-Judicial Member observed that unless members of the Bar come forward to condemn the remarks made by a counsel in a letter written to the President, ITAT their cases would not be heard.

At this juncture, we may extract a portion of the order passed by the complainant on 30.08.2012 on the adjournment application moved in a case which was represented on the said date by opposite party no.2 and in which opposite party no.1 also appears as a counsel, which is as follows:-

“On a careful perusal of the application as well as representation made to Hon’ble President, ITAT, we find that this representation is counterproductive of the representation made by the Lucknow Income Tax Tribunal Bar Association to Hon’ble President, ITAT on 25.08.2012. S.K.Garg, Advocate, in his petition, has raised serious grievance against the orders passed in the cases of Ravi Agarwal, Bareilly in ITA No. 612/LA W/2010 and Fortuna Foundation Engineers and Consultants Pvt. Ltd, Lucknow in ITAT No. 283/LKW/2012 and also against the case No. Ziauddin Ahmad, Kanpur in ITA No. 117/LKW/2011, which is pending for disposal with the Bench and levelled certain baseless allegations against the judicial member S.K. Yadav in conducting Bench. He has also made a request through his representation to Hon ‘ble President, ITAT that all the appeals which are being represented by him may be transferred to some other Bench and he is ready to bear the cost in conducting the cases outside Lucknow.”

Opposite party no.1, in his reply, has also stated that about the utterances made by the complainant on 30.08.2012, he on the very next day i.e. 31 .08.2012, wrote a letter to the President, ITAT, Mumbai informing the President about the utterances made by the complainant and submitted that such instance amounted to exercise undue influence on the counsels. S.K.Garg, in his reply, has also annexed a copy of an order dated 06.09.2012 passed by the complainant as annexure no.6 and has also quoted the following extract of the said order.

“In order to maintain the dignity of the institution, we , therefore, decide that we will not hear any appeal unless and until Bar Association passes a resolution condemning this act of a particular advocate and reposing confidence in the bench with an assurance that even if the matter is decided against them, there would not be such type of representation/complaint to Hon’ble President, as the remedy lies before the appellate forum and not with the administrative authorities and protection is given from Hon’ble President in this regard with an assurance that such type of complaint/representation would not be entertained and erring advocate would be dealt with severely”

It has also been stated that the Accountant Member of the Tribunal passed a separate order on the same order sheet and observed that the view expressed by the complainant- S.K.Yadav, the Judicial Member, cannot be treated to be the views/decision of the Division Bench. The separate order recorded by the Accountant Member on 06.09.20 12 is quoted below:-

“Per B.R.Jain, Accountant Member

The reasons assigned and views expressed herein above by my learned brother Shri S.K.Yadav for his refusal to hear all the appeals are purely subjective. The same cannot be taken as the views/decision of the Division Bench. I, therefore, disassociate myself therefrom and disagree with my learned brother thereon. The representation made by a particular advocate to the Hon’ble President, ITAT is yet to be decided/inquired into by him and at this stage it is beyond the scope of our duties to comment otherwise thereon or even require resolution from any Bar Association. I am, being a government servant, under duty as also is cast under the Constitution of India, to hear the cases/appeals listed before the Division Bench and render justice to them, but being a junior member, rendered helpless to hear Division Bench cases singly. The grant of adjournments being the prerogative of the Presiding Officer, that is the Senior Member, no interference in adjournments, as also stated with reservations in the past and now under the given circumstances is called for. Let this judicial noting also be laid before the Hon’ble President, ITAT.

Sd/-

06.09.2012
B.R.Jain

Accountant Member”

S.K.Garg-opposite party no.1 has also stated that on 07.09.2012 the complainant passed yet another order directing the registry of the ITAT to issue a letter to the assessees in all the cases in which S.K.Garg, Advocate appears and ascertain from the assessees as to whether they have given their consent in respect of the prayer made by S.K.Garg to transfer their cases from Lucknow Bench to Agra or Delhi Bench, ITAT. The Assistant Registrar thereupon issued notices to the assessees. One such notice has been annexed as annexure no.8 to the reply filed by opposite party no.1, the contents of which are extracted below:-

“I am directed by Hon’ble Senior Member to inform you that your advocate Sri S.K.Garg authorized by you to represent your IT appeals etc. has moved a representation dated 28.08.2012 to the Hon’ble President, ITAT with a request to transfer your appeal(s) from ITAT, Lucknow to ITAT, Agra or Delhi.

On the perusal of representation, it is not clear whether such request was made after obtaining proper consent from you.

In view of the above, you are requested to kindly confirm to this office within 15 days from the date of receipt of this letter whether you are interested or otherwise in transferring your appeal(s) from Lucknow Bench to ITAT, Agra Bench or Delhi so that necessary action may be taken in the matter.”

It has been stated that identical notices were sent to the other assessees represented by the opposite party no.1.

Contention raised in the reply filed by opposite party no.1 is that by asking the Registry to issue notice to the assessees, contents of the representation dated 28.08.20 12 were brought to the notice of the litigants by the complainant himself. It has also been stated that once the complainant recused himself from all the cases by means of order dated 30.08.2012 there was no occasion for him to have issued any such direction to the Assistant Registrar of the Tribunal.

Further submission made by opposite party no.1 is that the complainant, who is Judicial Member of the Tribunal, himself brought the contents of the representation dated 28.08.2012 made by him in full ‘public view’ by making copy of the said representation available to Income Tax Tribunal Bar Association by asking the lawyers and other professionals representing the parties before the TIAT to condemn his letter/representation dated 28.08.2012 and by passing an order whereby he put condemnation of his representation as a pre-condition to hear the appeals of the members of the Bar, by means of order dated 06.09.2012. He has also stated that the contents of the letter dated 28.08.2012 were also made public by directing the Assistant Registrar of the ITAT by means of order dated 07.09.2012 to send notices to the assessees represented by him.

In the background of the aforesaid facts, it has been submitted that reference made by the complainant cannot be treated to be a reference by a “subordinate court’ within the meaning of Section 15 (2) of the Contempt of Courts Act, 1971 for the reason that the Court/Tribunal in the instant case would mean the Division Bench comprising of Judicial Member and Accountant Member and further that in view of disagreement of the other member of the Bench, instant proceedings could not be initiated. It has also been stated that there was no intent on the part of the opposite party no.1 to publicize the representation dated 28.08.2012 with a view to scandalize the Tribunal or to lower its authority, nor was there any intention to interfere with due course of judicial proceedings. It has also been stated that opposite party no.1 had merely conveyed his grievance to the President, ITAT, Mumbai about functioning of the Judicial Member as the President is the head of the institution. It has further been stated that so far as annexing the copy of the representation dated 28.08.2012 with the adjournment application moved on 30.08.2012 is concerned, the same was not meant for perusal of anyone other than the complainant. Opposite party no.1 has also stated that neither the copy of the adjournment application dated 30.08.2012 nor even the representation dated 28.08.2012 annexed with the said application was provided even to the Accountant Member, B.R.Jain.

The defence has also been set up on the basis of the provision of Sections 5 and 6 of the Contempt of Courts Act.

Opposite party no.2 has also filed his reply to the show cause notice issued to him almost on the similar lines after tendering his unconditional and unqualified apology, however, asserting that he also never had any intent to scandalize or lower the dignity of the Tribunal or to scuttle the judicial proceedings in any manner.

From the pleadings available on record, the issue which emerges for determination by this Court is two folds: (a) as to whether on the basis of reference made by only one member of the Division Bench of ITAT, proceedings for criminal contempt can be initiated under Section 15 (2) of the Contempt of Courts Act and (b) as to whether in the facts and circumstances of the case, any case for initiating criminal contempt proceedings against the opposite parties is made out.

Taking up the first issue, we may state that cognizance of criminal contempt other than the contempt mentioned in Section 14 of the Contempt of Courts Act by the Supreme Court or this Court can be taken by taking recourse to the three following procedures:

(a)  This Court can take action in respect of criminal contempt suo-motu, that is to say, on its own motion.

(b)  the criminal contempt proceedings can be initiated on a motion made by the Advocate General.

(c) Such proceedings can also be initiated by any other person with the consent of the Advocate General in writing.

Apart from the above three modes of initiation of criminal contempt proceedings, in the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court itself or on a motion made by the Advocate General.

So far as taking the cognizance of a matter relating to any criminal contempt of a subordinate court is concerned, as per the provisions contained in Section 15 (2) of the Act, this Court can initiate proceedings in case any such reference is made to it by the subordinate court or in a case where any such motion is made by the Advocate General. It is also worthwhile to mention that this Court apart from exercising in power to punish under the Contempt of Courts Act also exercises the said powers under Article 215 of the Constitution of India. This Court, being a court of record, possesses all powers of such a court including the power to punish for contempt of itself. There is no room of doubt that so far as the contempt of itself is concerned, this Court can always take suo-motu cognizance of any matter relating to criminal contempt while exercising the powers of court of record under Article 215 of the Constitution of India. Furthermore, the issue as to whether this Court can take cognizance and punish for contempt of a subordinate court on its own motion is no more res-integra. The same has been settled by the Hon’ble Apex Court in the case of S.K.Sarkar Member, Board of Revenue, U.P. Lucknow vs Vinay Chandra Mishra, reported in AIR 1981 SCC 723. In the said judgement, it has clearly been held that sub section (2) of Section 15 of the Act, if properly construed, does not restrict the power of the High Court to take cognizance of and punish contempt of a subordinate court, on its own motion. Hon’ble Supreme Court has further held in this case that in a case where this Court is directly moved through a petition by a private person, not being Advocate General, without the consent in writing of the Advocate General, a discretion always lies with this Court to refuse or to entertain or to take cognizance on its own motion on the basis of information supplied to it through such a petition.

The reason why we have adverted to the aforesaid issue of this Court taking suo-motu cognizance of any criminal contempt of a subordinate court is that in the instant case, admittedly, the reference made can not be termed to be reference by the Tribunal for the reason that Tribunal admittedly comprises of two members and the reference has been signed and made by only one member i.e. the complainant, who is the Judicial Member. Accountant Member is not a party to this reference. Thus, the instant reference, in our considered opinion, cannot be termed to be a reference by a subordinate court within the meaning of Section 15(2) of the Contempt of Courts Act.

Having said so, we, however, further observe that merely because reference in the instant case is not a reference by a subordinate court within the meaning of Section 15(2) of the Contempt of Courts Act for the reason that the other member of division bench of the ITAT has not concurred with it, this Court is not precluded from taking cognizance of the issue relating to alleged criminal contempt suo-motu in the light of the information gathered from the reference, in view of the law laid down by the Hon’ble Apex Court in the case of S.K. Sarkar Member, Board of Revenue, U.P. Lucknow (supra).

Nonetheless, this Court has to exercise its discretion either to refuse or entertain or take cognizance of the alleged criminal contempt on the basis of information available on record. It is well settled that Section 15 of the Contempt of Courts Act does not specify the basis or sources of information on which this Court can act on its own motion. Thus, apart from acting on the modes as prescribed under Section 15 (1) and (2) of the Contempt of Courts Act, this Court can take cognizance suo-motu treating the reference made by the complainant in the instant case as a piece of information. We, accordingly, do not find any reason why the contents of the reference can not be utilized by this Court to initiate suo-motu proceedings. Thus, the competence or incompetence of the reference becomes immaterial.

We would not examine as to whether in the facts and circumstances and also on the basis of material available on record any criminal contempt against the opposite parties is made out.

While going through the reference petition and the reply submitted by the opposite parties, we notice certain startling facts. One Bar Association passes a resolution against the conduct of one member of 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 dated 06.09.2012 that the Tribunal will not hear any appeal unless and until Bar Association passes the resolution condemning the particular act of an Advocate (i.e. moving the representation dated 28.08.20 12 by the opposite party No.1). 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, in our considered view, are unacceptable. This observation by us, however, does not mean that this Court in any manner intends to dilute the well accepted principle that Presiding Officer or members of a Tribunal or court should always be protected and they should be made to work in an environment which is conducive to discharge their judicial duties/functions.

Further, the instructions issued by the complainant, in his capacity as senior member of the Tribunal by means of letter dated 07.09.2012 to the Assistant Registrar, ITAT, Lucknow to obtain consent of the individuals 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.

From a reading of the reference made by the complainant for initiation of the proceedings for criminal contempt, we find that the complainant has emphasized on the reading of the contents of the adjournment application and the extracts from the representation made by the opposite party No.1 dated 28.08.2012 during course of hearing on 30.08.2012 in open court, which in his view, amounts to publication of the words written in the representation which are scandalous and which tend to interfere with due course of the judicial proceedings.

Criminal contempt has been defined under Section 2(c) of the Contempt of Courts Act which reads as under:-

“2(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which‑

(I)       scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(II)       prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or

(III) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

Thus, to constitute criminal contempt, it should be established that there is some matter or some act which scandalizes or lowers the authority of any court or tends to scandalize or tends to lower the authority of the court or prejudices, or interferes or tends to interfere with the due course of any judicial proceedings or which interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice.

However, mere existence of any such matter or any such act, may not, in all circumstances, constitute criminal contempt unless it is publicized.

The question, thus, is as to whether by making the representation dated 28.08.2012, the opposite party No.1 and by reading the contents thereof, the opposite party No.2 publicized the contents of the said representation.

It has been categorically stated by opposite party No.1 in his reply that as per information provided to him by opposite party No.2 it was the complainant who ordered the opposite party No.2 to read certain paragraphs of the adjournment application and extracts of the representation dated 28.08.2012. It has also been stated categorically by the opposite party No.1 that the copy of the representation was not provided to anyone including even the other member i.e. the Accountant Member of the Tribunal as in the Tribunal there is a practice that adjournment application is given to the senior member who generally presides over the Tribunal. He has also stated that the representation dated 28.08.2012 was most confidential and that it was kept confidential only to be sent to the President of ITAT raising certain grievances in respect of the conduct of the complainant.

Similarly, the opposite party No.2 in his reply has also stated that he has moved an application for adjournment on 30.08.2012 on the instructions of the opposite party No.1 and on the said date the complainant directed him to read the extracts from the representation dated 28.08.20 12.

The circumstances under which certain paragraphs of adjournment application and the extracts of the representation dated 28.08.2012 might have been read in the court on 30.08.2012 are not difficult to understand. We may also notice that at the relevant point of time, the representation made by the opposite party No.1 which contains certain complains about conduct of the complainant as member of ITAT, Lucknow Bench was still under consideration before the President of ITAT at Mumbai. One may agree or disagree with the contents of the representation/application dated 28.08.2012 made by the opposite party No.1 to the President , ITAT, however, the circumstances in which it is alleged that the contents thereof were read by the opposite party No.2 also need to be taken into account while arriving at a conclusion as to whether the said act of opposite party No.2 would amount to committing criminal contempt of the Tribunal.

The language used in the representation dated 28.08.2012 though, 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.

As observed above, at the cost of repetition we may state that the circumstances under which the contents of the representation dated 28.08.2012 were read by the opposite party No.2 are not difficult to understand. We have also observed above that the language applied by the opposite party No.1 in his representation cannot be approved of. However, since, the grievance raised in the said representation was in respect of a particular member of the ITAT allegedly not following the judicial precedence and thus not adhering to the accepted norms and principles of judicial discipline, the acts of opposite parties complained against in the reference, in our considered opinion, would not constitute criminal contempt in its strict sense.

Having regard to the nature of proceedings under the Contempt of Courts Act and also on the basis of material available on record and taking into account the surrounding circumstances of the instant case, in the result, we are unable to agree with the complainant that opposite parties have committed criminal contempt so as to attract punishment therefor under the Contempt of Courts Act.

Accordingly, notices issued against the opposite parties are liable to be discharged.

We order accordingly.

Before parting with the case, the Court, however, also feels it appropriate to put it on record that 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 dated 28.08.2012 is not worthy of approval.

We express our hope that lawyers will always be guided by the following observations of Hon’ble Supre Court made in the case of Hargovind Dayal Srivastava and another Vs. G.N. Verma and others, reported in 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”.

Let the record of this case be consigned.

Order Date :- May 28,2014

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