INCOME TAX APPELLATE TRIBUNAL THROUGH PRESIDENT A

V.K. AGARWAL AND ANR.

NOVEMBER 17, 1998

[SUJATA V. MANOHAR AND G.B. PATTANAIK, JJ.] B

Contempt of Courts Act, 1971 : Sections 2(1) and 3.

Income Tax Appellate Tribunal-Draft order in favour of assessee by one of the two Members-Contrary view in the matter by another Member- C Discussion between the members-Order in favour of Revenue signed by both the members-Law Secretary to Govemment of India-On receipt of pseudonymous complaint-Letter to President of Tribunal questioning the judicial impropriety of two contradictory orders-Demand for enquiry and report within 10 days-Second letter threatening that adverse inference would be drawn if report not sent immediately-Held, amounted to interference D with the administration of justice and tends to undermine confidence in the functioning of Tribunal-Amounts to contempt of court.

Constitution of India, 1950 : Articles 32 and 129-Power of Supreme Court to punish for contempt-Held, Supreme Court has inherent power to E punish for contempt of itself and also for contempt of subordinate/inferior Courts.

Income Tax Appellate Tribunal-Interference with administration of justice-Suo moto cognizance of contempt by Supreme Court-No scope for appeal by contemner-Whether valid ground for not exercising that power F to punish for contempt? Held, No.

Income Tax Appellate Tribunal-Power of supervision and control of Department of Legal Affairs-Nature of-Held, only administrative supervision and control and does not extend to controlling or questioning judicial decision of the Tribunal.

Income Tax Appellate Tribunal Rules, 1963 : Rules 34 and 35- Procedure to be followed while delivering order-Laid down.

Anonymous and Pseudonymous complaint-Procedure to deal with- Held, governed Memorandum dated 29.9.1992 issued by Department of H

A Personnel and Training, Government of India.

Words and Phrases:

'Criminal contempt'-Meaning of in the context of section 2(c) of Contempt of Courts Act, 1971.

'Including the power to punish for contempt of itself -Meaning and scope of in the context of Article 129 of the Constitution of India.

A Bench oflncome Tax Appellate Tribunal consisting of two members heard and decided a matter pending before it in favour of Revenue. In the said C matter, initially the judicial member prepared a draft order in favour of assessee and signed it However, since the Accountant member took a contrary view, they had a discussion and in the end the judicial member agreed with the views taken by Accountant member. Thus an order in favour of Revenue signed by both the members was passed and copies of said order sent to the D parties.

Respondent No. 1 the law secretary on receipt of an pseudonymous complaint, wrote a letter to the applicant, President of the Tribunal stating that. passing two contradictory orders disclosed judicial impropriety and asked to send his report within 10 days. Applicant sent a copy of the above E letter to both the members and invited their comments. In reply, both the members pointed out that there are no two orders passed and the only order was the order which was only signed by both the members. But before the applicant could send his report, the law secretary wrote another letter threatening the applicant that adverse inference would be drawn if the report was not sent in time. The applicant treating the said two letters as serious F interference with the administration of justice preferred the present application for issuing contempt notice against respondent No. 1.

Allowing the contempt petition, this Court

HELD : 1. Respondent No. 1 by writing the two letters has travelled far G beyond exercising administrative control over the Tribunal and has tried to influence or question the decision making process of the Tribunal. Thus he is guilty of contempt of court. [725-F]

2. Whenever an act adversely affects the administration of justice or tends to impede its course, or shake public confidence in a judicial institution, H the power of contempt can be exercised to uphold the dignity of the court of

I.T. APPEL. TRI. THROUGH PRES. v. V.K. AGARWAL 709

law and protect its proper functioning, The definition of criminal contempt A under Section 2(c) of Contempt of Courts Act, 1971, therefore, refers not merely to publication by words, signs etc. but includes the doing of any act whatsoever which scandalise or tends to scandalise or lowers or tends to lower the authority of any court (Section 2(c)(i)) or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any manner (Section 2(c)(iii)). Therefore, any act which tends to interfere B with the administration of justice or tends to lower the authority of any court can be punished with contempt. (720-A; D-E)

3.1. In the instant case the President of the Income Tax Appellate Tribunal has considered the letters of respondent No. 1 as interference with C the judicial decision-making process of the Tribunal. The concerned Mem hers of the Tribunal from whom the President invited comments, also looked upon the letter as gross interference in the judicial discharge of their duties; and they were justified in so viewing the letter. Respondent No. 1 had jumped to the conclusion that the Judicial Member had issued two contradictory orders, and had demanded action against erring members. Coming as it did from a D senior officer holding the rank of Law Secretary, the applicant was justified in taking a serious view of the respondent's conduct. It is quite clear that by writing the two letters, respondent No. 1 was questioning the judicial decision arrived at by the Tribunal. Respondent No. 1 had commented upon the two so-called "orders" and had said that the so-called contradictory orders disclose judicial impropriety of the highest degree. He had demanded E 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 report 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 F functioning. The letter also tends to undermine confidence in the judicial functioning of the Tribunal. [720-F-H; 721-A-C)

Re : Hira Lal Dixit and Two Ors., (1955] 1 SCR 677; C.K. Daphtary and Ors. v. O.P. Gupta and Ors., [1971) Supp. SCR 76 and Delhi Judicial Service Association, Tis Hazari Court, Delhi etc. etc. v. State of Gujarat and G Ors. etc. etc., [1991) 3 SCR 936, relied on.

3.2. The letters of Respondent No. 1 insinuate a dishonest conduct on the part of the two members, presumably because the view expressed by the Judicial Member in the first alleged order is changed by him in favour of the Revenue when he concurred with the order which was actually pronounced. H

A This kind of an attack based on access to a confidential draft exchanged between the Members of the Bench is bound to affect free exchange of ideas between the two Members who have to judicially decide a case. It is a clear obstruction to proper decision-making and to proper 11dministration of justice.

(721-G-H; 722-A) B 3.3. The entire tone of the letter is highly unwarranted, offensive and tends to undermine the dignity of the post of the President of the Appellate Tribunal. It is unbecoming of 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 inference would be C 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 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 Tribunal and not interfere with its judicial functioning, amounts to gross contempt of court It is deliberate attempt on his part to question the judicial functioning D of the Tribunal coming as it does from a person of his rank. It is rightly perceived by the President as well as the two concerned Members of the Tribunal as a threat to their independent functioning in the course of deciding appeals coming up before them. (724-H; 725-A; D-E)

4. On the basis of the pseudonymous complaint, and the receipt of E copies of two separate orders, respondent No. 1 claims to have written the letter. Before doing so, he did not check whether there was any person existing at the address given in the letter and whether what had been stated in the letter had any factual basis. He did not even check whether both the orders or any of them had been pronounced by the Bench or not. He should F have been aware of an Office Memorandum issued by the Department of

Personnel and Training, Government oflndia, to all Departments, giving instructions about dealing with anonymous and pseudonymous complaints.

The Memorandum states that before taking cognizance of such complaints the Chief Vigilance Officer of the Department or Organisation CO!lcerne~ should obtain specific orders from the Head of the Department A copy of all G such complaints shall first be made available to the Officer concerned for his comments, and only thereafter further action should be taken. Precaution should be taken to take into custody all relevant documents. In the present case respondent No. 1 did not send a copy of the complaint which he had received, to the President of the Tribunal for investigation. [723-8-E)

5. Respondent No. 1 seems to be unaware of Rules 34 and 35 of the

I.T. APPEL. TRI. THROUGH PRES. v. V.K. AGARWAL 711

Income Tax Appellate Tribunal Rules of 1963 which regulate the procedure A of the Appellate Tribunal. Under Rule 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 that 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 a Bench is signed by all Members constituting it and is B 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. Respondent No. 1 has noted in the letter that the first socalled "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 C or to the Commissioner. If he had done 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 the Commissioner. Had he ascertained from the Commissioner oflncome Tax or the assessee and the only order which had been communicated was the order signed by both the Members.

(723-E-H; 724-A-C) D

6. The Rules of Allocation of Business as also the supervisory control of the Department of Legal Affairs over the Income Tax Appellate Tribunal, is administrative supervision and control. It does not extend to controlling or questioning judicial decisions of the Appellate Tribunal. Thus the E contention of respondent No. 1 that the letters were written by him bona fide in exercise of his right to control the functioning of the Tribunal has no merit. (722-D; G-H]

Rizwan-ul-Hasan and Anr. v. The State of Uttar Pradesh, (1953] SCR 581, held inapplicable.

7.1. 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. The expression used in Article 129 is not restrictive, instead it is extensive in nature. If the framers

of the Constitution intended that the Supreme Court shall have power to G punish for contempt of itself only, there was no necessity for inserting the expression "including the power to punish for contempt of itself;" The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression "including". Article 129 recognised the existing inherent power of a court of record in its full plentitude "including H

A the power for the contempt of inferior courts." There can, therefore, be no doubt that this Court has jurisdiction to punish for contempt of the Income Tax Appellate Tribunal. [717-C; 718-A-B; E; 719-A)

Delhi Judicial Service Association, Tis Hazari Court, Delhi, v. State of Gujarat and Ors., (1991) 3 SCR 936; Re: Vinay Chandra Misra, (1995) B 2 SCC 584 and Supreme Court Bar Association v. Union of India & Anr.,

[1998) 4 sec 409, relied on.

7.2. The Income Tax Appellate Tribunal, although it may have Benches in different parts of the country, is a national Tribunal and its functioning affects the entire country and all its Benches. Appeals also lie ultimately to C this Court from the decisions and Reference m11de by the Tribunal The mere fact that by this Court taking suo motu cognizance of the contempt, respondent no. 1 would not be able to appeal to any other court, cannot be a ground for not exercising the power to punish for contempt of a national Tribunal.

[719-C-D)

8. On the facts and circumstances of the case, the apology offered by respondent No. 1 cannot be accepted. However, since he has retired as Law Secretary and is not in a position to inflict further damage, the ends of justice will be met if he is fined a sum of Rs. 2000 as punishment for contempt [725-F-G)

E CIVIL ORIGINAL JURISDICTION : Contempt Petition No. 287 of 1998.

Under Article 145 of the Constitution of India.

Dinesh Vyas, P.H. Parekh, Sameer Parekh and Ms. Bina Madhavan for F the Applicant.

Altaf Ahmad, Additional Solicitor General, K.K. Venugopal and Uma Dutta, (T.C. Sharma) for P. Parmeshwaran for the Respondents.

The Judgment of the Court was delivered by

G MRS. SUJATA V. MANOHAR, J. A public interest Writ Petition No.2350 of 1996 was filed in the Bombay High Court by the Income-tax Appellate Tribunal Bar Association through its Secretary challenging the validity of a letter dated 5 .11.1996 purporting to modify the powers of the President of the Income-tax Appellate Tribunal regarding posting and transfer of Members of the Incqme-tax Appellate Tribunal. The petitioners contended that they were H interested in fair and impartial administration of the income-tax law and in

I.T. APPEL. TRI. THROUGH PRES. v. V.K.AGARWAL[SUJATA V. MANOHAR, J.] 713

upholding the independent working of the Income-tax Appellate Tribunal, the A Rule of Law and independence of the income-tax Judiciary. By an interim order, the High Court restrained the Under Secretary, Ministry of Law, Government of India and the Union of India who were respondents 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 B 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 31.3 .1997 confinned 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 23rd of October, 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 D case of Smt. Neerja Bir/av. Assistant Commissioner of Income Tax 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 Tribunal which decided the appeal in favour of the revenue.

Thereafter the President of the Tribunal received a letter dated 30th of December 1997 from Shri V.K. Agarwal, who was the then Law Secretary, Ministry of Law and Justice, Government of India. In the letter, the then Law Secretary, who is the first respondent before us, referred to the decision of the Tribunal in the case ofNeerja Birla v. Assistant Commissioner of Income

Tax heard and decided by Shri R.V. Easwar, Judicial Member and Shri M.V.R. F Prasad, Accountant Member sitting together. He observed that the Judicial Member dictated this judgment in this matter some time in August, 1997 and duly corrected and signed it. However, a contrary order dated 23rd October, 1997 was pronounced by the Accountant Member which was signed by both the Members. Copies of both the "orders" were enclosed. The first respondent G then went on to say, " ........... Thus the two orders have taken a contradicting stand. The aforesaid circumstances disclose judicial impropriety of highest _ degree. It is intriguing as to how two contradicting orders got dictated in the same matter by the two Members, while one order is by the Judicial Member, the other is by the Accountant Member and signed-by both. You may like to enquire into the matter and send a report to the Government within 1 O days H

A from the date of the receipt of this letter. You may also like to suggest the action that may be taken in the matter and the Members against whom it may be taken. Further, while submitting the report, a copy of the 'file order sheet' indicating the name of the Member to whom the case was allotted for writing the judgment may also please be sent to the Government."

B On receipt of this letter, the app Ii cant addressed a letter dated 7th of January, 1998 to both the Members of the said Bench enclosing a copy of the letter he had received from the first respondent, and requesting them to send their comments. Both the Members have separately sent their replies to the applicant pointing out that the only order which was passed in the said ca! e is the order dated 23rd of October, 1997 which has been signed by both C the Members constituting the Bench on 23.10.1997. The Judicial Member has pointed out that after hearing the above case, he had prepared a draft order which was in favour of the assessee. When he sent the draft to the Accountant Member, the Accountant Member expressed his reservations on the views expressed in the draft order. Thereafter, both the Members met and discussed D 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 23rd of October 1997 E 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 23rd October, 1997. This was the F 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 to the first respondent after G ascertaining the views of the concerned Members, on 3rd of February, 1998, the first respondent wrote another letter to the applicant which as follows:

"Please refer to my D.O. letter of even No. dated 30.12.1997 regarding the case of Smt. Neerja Bir/a v. Asstt. Commr. Bombay, disposed of by a bench consisting ofShri R.V. Easwar, JM and Shri H M.V.R. Prasad, AM.

The matter involved two contradicting orders being dictated in the A same matter by the same members constituting the bench. You were requested to reply within I 0 days of the receipt of the letter. In spite of this, I have not received any report from you in the matter even after a month.

You would appreciate that as President of the Tribunal you have B the responsibility to ensure that the judicial functions of the Tribunal are discharged by its members properly and in a manner conducive to instilling confidence in the minds of the taxpayers. The irregularity pointed out in my letter relates to a Bench which is functioning at Mumbai, where you, as the head of the Tribunal, have your regular headquarters. Under the circumstances silence on your part may invite C adverse inferences in the matter.

It is therefore requested that your report in the matter may be sent to the Government without further delay and in any case not later than 6th February, 1998. In case no report is received from you by that date, it will be presumed that you have nothing to say in the matter D and Government will be constrained to take such action in the matter as may be deemed fit according to law.

This may please be accorded TOP PRIORITY.

With kind regards,

Shri T. V. Rajagopala Rao, President, IT AT,

IOI, Old DGO Bldg., M.K. Marg, Mumbai - 400 020. "

Yours faithfully,

Sd/- (Dr. V.K. Agarwal)

The applicant replied to this letter by his letter of 6th of February, 1998

in which he pointed out that there was no impropriety in the pa.; sing of the order by the Members of the Income-tax Appellate Tribunal in the matter of G Neerja Bir/a v. Assistant Commissioner of Income-tax. He went on to state that the applicant's letter amounted to gross interference in the judicial functioning of the Tribunal, and he had no authority to do so. The applicant also stated that the contents of the first respondent's letter pertaining to himself smacked of vindictiveness. The applicant has viewed the letters as serious interference with the administration of justice particularly in the context H

A 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 29th of December, 1997 received from the Deputy B Secretary just before the letter from the firt respondent dated 30th December,

1997. In the letter of 29th of December, 1997, the applicant was told that on a perusal of the summary statement showing institution, disposal and pendency of app.; als 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 ir.to the matter and send a report on the C 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 frrst respondent directly. In view of the statements made in his affidavit by the second respondent, the applicant has not pressed the D application against the second respondent.

In the application, the applicant has requested this court to issue a show caU'se notice to the fust respondent why action should not be taken against him in contempt, inter alia, for interfering with judicial functioning E of the Tribunal. He has also prayed for a direction to the fust respondent not to interfere in any manner with the independent judicial functioning of the Income-tax appellate Tribunal. On the basis of this application, this Court issued a suo motu contempt notice to both the respondents. Since the application is not being pressed against the second respondent in view of his explanation for the letter of 29th of December, 1997, we have to examine the F conduct of the first respondent who was, at the material time, the Law Secretary in the Ministry of Law and Justice.

Undoubtedly, in the application before us it was also contended that the two letters can be looked upon as interference with the interim orders of G this Court dated 31.3.1997 and 9.5.1997 in the pending petitions. This would then amount to civil contempt. But the basic charge is interference with the judicial functioning of the Tribunal. The prayer in this petition was amended after it was filed to make it clear that the grievance related to interference with administration of justice. The respondents at their request were given sufficient time to reply to the charge of criminal contempt. There can, therefore, be no H grievance on this score.

Before examining the conduct of the first respondent, we would like to A deal with the technical objections which were raised before us on behalf of the first respondent. The first respondent had initially contended that the Income-tax Appellate Tribunal was not a court, and was also not a court subordinate to the Supreme Court. Hence the Supreme Court had no Jurisdiction to issue a suo motu notice of contempt in respect of a matter pertaining to B the Income-tax Appellate Tribunal. However, subsequently, learned senior counsel for the first respondent conceded that the Income-tax Appellate Tribunal did perform judicial functions and was a court .subordinate to tht: High Court. Hence, there is no need to examine any further, the contention that the said Tribunal is not a court.

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 D to it. In the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors., [1991] 3 SCR 936, this Court examined at length the power of this Court under Article I 29 to punish for contempt. This Court first examined the Jurisdiction of the Supreme Court and held, (at page

970) "There is, therefore, no room for any doubt that this Court has wide E 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 power of judicial superintendence over all the courts and Tribunals in the territory of India F including subordinate courts of Magistrate and District' Judge. This Court has, therefore, supervisory jurisdiction over all courts in India." Examining the powers of a court of record, it came to the conclusion that a court of record has inherent power to punish for contempt of all courts and tribunals subordinate to it in order to protect these subordinate courts and tribunals. G This power to protect is founded on the inherent power of a court of record to correct the judicial orders of subordinate courts. This Court further observed, (pages 976-977, 979.) "The Supreme Court being a court of record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as the High Courts had prior to contempt legislation in I 926. Inherent powers H

A of a superior court of record have remained unaffected even after codification of contempt law ....... Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt for itself. The expression used in Article 129 is not restrictive, instead it is extensive in

A - nature. If the Framers of the Constitution intended that the Supreme Court B shall have power to punish for contempt of itself only, there was no necessity for inserting the expression "including the power of punish for contempt of itself'. The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression "including". The expression "including" C has been interpreted by courts to extend and widen the scope of the power.

The plain language of the Article clearly indicates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. In interpreting the Constitution, it is not permissible to adopt a construction which would render any expression superfluous or redundant. The courts D ought not to accept any such construction. While construing Article 129, it is not permissible to ignore the significance and 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 E 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 for the contempt of inferior courts".

This view was reiterated and reaffirmed in the case of In re: Vinay F Chandra Mishra, (1995] 2 SCC 584 where this Court affirmed the decision in Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors., (Supra). 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 G 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 or attack from any quarter. The amplitude of the power of this Court can not be curtailed by a law made by the Central or a State Legislature. This Court's Jurisdiction and power to take action for contempt of subordinate courts is its inherent jurisdiction, and is protected under H Article 129. Although the judgment in In re: Vinay Chandra Mishra, (supra)

I.T. APPEL. TRI. THROUGH PRES. v. V.K. AGARWAL [SUJATA V. MANOHAR, J.l 719

has been partially set aside in Supreme Court Bar Association v. Union of A India & Anr., [1998] 4 SCC 409 on the question of power to suspend an advocate's licence under contempt jurisdiction, this part of its basic reasoning is unaffected. In fact it is reaffirmed. There can, therefore, be no doubt that this Court has jurisdiction to punish for contempt of the Income Tax Appellate Tribunal.

It was also submitted before us by learned senior counsel for the first respondent that although this Court may have jurisdiction to punish for contempt, that jurisdiction should not be exercised in the present case. The appropriate authority to take action would be the High Court. We do not see much force in this submission. The Income Tax Appellate Tribunal, although C it may have Benches in different parts of the country, is a national Tribunal and its functioning affects the entire country and all Its Benches. Appeals also lie ultimately to this Court from the decisions and References made by the Tribunal. The mere fact that by this Court taking suo motu cognizance of the contempt, the first respondent would not be able to appeal to any other court, cannot be a ground for not exercising the power to punish for contempt D of a national Tribunal.

In the present case the President of the Tribunal has sought directions and orders from this Court and has placed all relevant information concerning the conduct of the first respondent before us, on the basis of which this Court E has, suo motu, issued notice. Section I 5 of Contempt of Courts Act which deals with cognizance of criminal contempt, also prescribes that the Supreme Court or the High Court may take action on its own motion. Rule 3(a) of the Supreme Court Rules regulating proceedings for contempt of the Supreme Court, similarly provides for the court taking action suo motu. In the case of Supreme Court Bar Association v. Union of India and Anr .. [I 998] 4 SCC 409, F after reiterating the position that Article 129 vests the Supreme Court 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 ii party which brings the contumacious G conduct of the contemner to the notice of the court. It said (page 429) 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.

A 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 uphold 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 publication (whether by words, spoken or written, or by signs, or by visible representations, 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 proceeding ; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner".

The definition of criminal contempt under Section 2( c ), therefore, refers not merely to publication by words, signs etc. but includes the doing of any act whatsoever which scandalises or tends to scandalise or lowers or tends to E lower the authority of any court [Section 2(c)(i)] or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any manner [Section 2(c)(iii)]. Therefore, any act which tends to interfere with the administration of Justice or tends to lower the authority of any court can be punished with contempt.

F In the present case the President of the Income Tax Appellate Tribunal has considered the letters of 30th of December, 1997 and 3rd ofFebruary, 1998 of the first respondent as interference with the Judicial decision-making process of the Tribunal. The concerned Members of the Tribunal from whom the President invited comments, also looked upon the letter of 30th December, G 1997 as gross interference in the judicial discharge of their duties; and they were justified in so viewing the letter. The first respondent had jumped to the conclusion that the Judicial Member had issued two contradictory orders or the Tribunal had issued two contradictory orders, and had demanded action against erring members. Coming as it did from a senior officer holding the rank of Law Secretary, the applicant was justified in taking a serious view of the H first respondent's conduct.

Learned senior counsel for the first respondent then contended that the A two letters were written after the judgment was delivered by the Tribunal and, therefore, they should not be construed as interference with judicial decisionmaking. This contention is without any merit. It is quite clear that by writing the two letters the first respondent was questioning the judicial decision arrived at by the Tribunal. The first respondent had commented upon the two B 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 C 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 and two Ors., [1955] i SCR 677, this Court observed that it was not necessary that there should be an actual interference with the D 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 and Ors. v. O.P. Gupta and E Ors., [1971] Supp. SCR 76 this Court negatived the contention that once the case is decided, even if the judgment is severely and even unfairly criticised, it should not be treated as contempt. The Court said, "We are unable to agree ...... that a scurrilous attack on a Judge in respect of a judgment or past conduct has no adverse affect on the due administration of justice. This sort of attack in a country like ours has the inevitable effect of undermining the F confidence of the public in the judiciary. If confidence in the judiciary goes, the due administration of justice definitely suffers" (page 97).

Our attention was drawn to Section 3 of the Contempt of Courts Act, 1971 which excludes innocent publications as specified in that Section, G published when the civil or criminal proceeding concerned is not pending, from the realm of contempt. The present case, however, deals with acts which lower the authority of a court and tend to interfere with the administration of justice. Section 3 has no application in the present case. The letters of the first respondent insinuate a dishonest conduct on the part of the two members, presumably because the view expressed by the Judicial Member in the first H

A alleged order is changed by him in favour of the revenue when he concurs with the order which was actually pronounced. This kind of an attack based on access to a confidential draft exchanged between the Members of the Bench is bound to affect free exchange of ideas between the two Members who have to judicially decide a case. It is a clear obstruction to proper B decision-making and to proper administration of justice.

In the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi etc. etc. v. State of Gujarat and Ors. etc. etc., (Supra) it has been held that the definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with justice or which would lower the C authority of a court. The public have a major stake in effective and orderly administration of justice. A letter from a high officer such as the Law Secretary which questions the bona fides of the Members of the Tribunal in deciding a case and asks them to explain the judicial order which they have passed, unfairly tampers with the judicial process and interferes with judicial decisionmaking.

The first respondent has tried to justify his conduct by saying 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 E 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 oflndia place the Income Tax Appellate Tribunal under the Department of Legal F Affairs, Ministry of Law and Justice. He contends that the two letters were written by him in a 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-UI- Hasan and Anr. v. The State of Uttar Pradesh, [1953] SCR 581 where the G Court said that since the alleged contemner had the duty to supervise the work of the trying Magistrate, the alleged contemner was only doing his duty as a superior officer and this would not amount to contempt. In the present case, however, the Rules of Allocation of Business as also the supervisory control of the Department of Legal Affairs over the Income Tax Appellate Tribunal, is administrative supervision and control. It does not extend to H controlling or questioning judicial decisions of the Appellate Tribunal.

The entire conduct of the first respondent leaves much to be desired. A He claims to have received a pseudonymous complaint dated 15th of November, 1997 from one K. Prasad with which copies of "two separate and conflicting orders passed by the ITAT Mumb'i Bench A, in ITA No.9013/Bom./1995" were enclosed. The pseudonymous complaint stated that while one order was dictated and signed by the Judicial Member in August, 1997, the other order B was per pro the Accountant Member and signed by both. The letter says, "The aforesaid circumstances disclose judicial impropriety of the highest degree". On the basis of this pseudonymous complaint, and the receipt of copies of two separate orders, the first respondent claims to have written the letter of 30th of December, 1997. Before doing so, he did not check whether there was any person of the name K. Prasad existing at the address given in C the letter and whether what had been stated in the letter had any factual basis.

He did not even check whether both the orders or any of them had been pronounced by the Bench or not. He should have been aware of an Office Memorandum dated 29th of September, 1992 issued by the Department of Personnel and Training, Government of India to. all departments, giving instructions about dealing with anonymous and pseudonymous complaints. D The Memorandum states that before t&king cognizance of such complaints the Chief Vigilance Officer of the Department or oraanisation concerned should obtain specific orders from the Head of the Depa'1ment. A copy of all such complaints shall first be made available to the officer concerned for his comments, and only thereafter further action should be taken. Precaution E should be taken to take into custody all relevant documents. In the present case the first respondent did not send a copy of the complaint which he had received to the President of the Tribunal for investigation. Although he was the Law Secretary, he seems to be unaware of Rules 34 and 35 of the Income Tax Appellate Tribunal Rules of 1961 which regulate the procedure of the Appellate Tribunal. Under Rule 34 which deals with final orders to be passed, F 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 a Bench is signed by all Members constituting

it and is dated, it is not an order of the Apoellate Tribunal. E:econdly, this H

A 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 30th December 1997, that the first so-called "order" only bears the signature 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 B 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 the Commissioner. Had he been aware of Rule 34, he would have realised that if the copies which were sent to him were authentic, then the only order which could be construed as an order of the Tribunal was the second order which was signed by both the C Members and bore a date. Had he ascertained from the Commissioner of Income Tax or the assessee which order had been communicated to them, he would have found that the only order which had been communicated was the order signed by both the Members and bearing the date 23rd of October, 1997.

Therefore, he should have realised that there could not possibly have been any misunderstanding about the order passed. What appears from the letter D is that the first respondent seems have taken umbrage at the fact that the Judicial Member, whose initial draft order was in favour of the assessee, was changed and the Judicial Member, after discussion with the Accountant Member, ultimately agreed with the view taken by the Accountant Member and decided the appeal in favour of the Revenue. Certainly, the language of E the letter of 30th of December, 1997 is wholly unwarranted. Curiously, the statement in the letter that, the aforesaid circumstances disclose judicial impropriety of highest degree is reminiscent of the language used in the pseudonymous complaint. Instead of even waiting for an explanation, he has straightway asked the President to enquire into the matter and send a report to the Government, and that too peremptorily within ten days. All this i~ F wholly unbecoming of a person holding the rank of the Law Secretary.

Moreover, without waiting for some time for a response from the President, immediately on the lapse of a month, he wrote a second letter of 3rd of February, 1998 in an equally peremptory fashion pointing out that although the President was requested to reply within ten days, he had not received any G report even after a month! He admonished the President, pointing out that the President had the responsibility to ensure that the judicial functions are discharged properly, he referred to the so called irregularity, and even went to the extent of saying that silence on the part of the President may invite advers.e inferences in the matter! He demanded a report_ from the President not later than 6th of February, 1998, when his letter was dated 3rd of February, H 1998. The entire tone of the letter is highly unwarranted, offensive and tends

to undermine the dignity of the post of the President of the Appellate Tribunal. A !t 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 B

of 15th of November, 1997, seems to have written a letter to the so-called sender of the complaint only on 12th of January, 1998, and that too asking only for a confirmation whether the complaint was made by that person.

When he wrote the letter of 30th December, 1997, he had not even checked C the veracity of the complaint. Thereafter, although the first respondent had not received any response to his letter of 12th of January, 1998, he did not hesitate to address the letter of 3rd of February, 1998 to the President of the Tribunal.

In our view this kind of conduct and that too on the part of the Law D Secretary, who is expected to maintain the independence of the Income Tax Appellate Tribunal and not interfere with its judicial functioning, amounts to gross contempt of court. It is a deliberate attempt on his part to question the judicial functioning of the Tribunal coming as it does from a person of his rank. It is rightly perceived by the President as well as the two concerned Members of the Tribunal as a threat to their independent functioning in the E course of deciding appeals coming up before them.

The first respondent has offered his apology to us. However, looking to all the circumstances of the present case we cannot accept the apology offered. He has travelled far beyond exercising administrative control over the F Tribunal. He has tried to influence or question the decision-making process of the Tribunal. An apology, in these circumstances, cannot be accepted. We, therefore, hold the first respondent guilty of contempt of court. Looking, however, to the fact that he has since retired as the Law Secretary and is not in a position to inflict further damage, the ends of justice will be met if he is fined a sum of Rs. 2,000 as punishment for contempt. We order accordingly. G

S.V.K.l Petition allowed.