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State of U. P. vs. S. K. Garg (Allahabad High Court)
June, 14th 2014

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”.

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