No Practice for Retired ITAT Members
IN P. C. Jain vs. UOI - 2009-TIOL-185-HC-DEL-CESTAT, the Petitioners (retired Members of CESTAT) contended that the provision in Section 129 (6) of the Customs Act, 1962 is ultra vires Articles 14, 19 (1)(g) and 21 of the Constitution in as much as the said provision is discriminatory and effects their right to livelihood. The petitioners also contended that members of other Tribunals like Income Tax Appellate Tribunal and Appellate Tribunal for Foreign Exchange are not disabled from practising before the respective Tribunals. These contentions were set aside and the High Court ruled that the provision barring retired Members of CESTAT from practising before the CESTAT is neither unconstitutional nor discriminatory.
The High Court had noted, “The learned ASG also brought to our notice an inter-departmental letter dated 20.09.2007 exchanged between the Ministry of Law and Justice, Department of Legal Affairs and the Department of Revenue' which suggested that the Government was in principle agreed that steps should be initiated to bring about a suitable amendment so that similar bar could be incorporated in the Income Tax Act, in respect of, members of the Income Tax Appellate Tribunal.”
Now the Law Ministry has acted as informed to the High Court and the provisions of ITAT (Recruitment and Conditions of Service) Rules, 1963 are amended to bar retired Members, Vice President and President of ITAT from practising before ITAT. In addition to this another rule was inserted that during their service they are also barred from undertaking any arbitration work while working in these capacities in the Tribunal. Though the Delhi High Court overruled the CESTAT Members' contention of discrimination, the Law Ministry sought to cure this perceived discrimination by amending the service condition rules for ITAT. Now, with these latest amendments the grouse of the retired Members of CESTAT is doused statutorily as well.
But is the current amendment enough to bar the ITAT Members, VPs and President from practising before ITAT?. In fact, there is a slight distinction in the provisions incorporated for restricting the President, VPs and Members of ITAT from practising before ITAT when compared with similar provision incorporated for the President, VPs and Members of CESTAT.
While Rules 13E and 13F of Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963 states as follows:
“13E. The President, the Senior Vice-President, the Vice-President and the Members of the Tribunal shall not practice before the Tribunal after retirement from the service of the Tribunal.
13F. The President, the Senior Vice-President, the Vice-President and the Members of the Tribunal shall not undertake any arbitration work while functioning in these capacities in the Tribunal.”
Section 129(6) of the Customs Act, 1962 stipulates as follows:
"(6) On ceasing to hold office, the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal."
While the CESTAT President, VP and Members cannot practice before CESTAT after ceasing to hold office in the CESTAT, ITAT President, VP and Members cannot practice before ITAT only after retirement. So, if a Member, VP or even President of ITAT resigns from his/her post, there is no bar for them to practice before ITAT because the relevant rule only says that they shall not practice before the Tribunal after retirement. Whereas for the Members, VPs and President of CESTAT, even if they resign from their posts, they are not entitled to practice because the relevant provision says 'on ceasing to hold office'. This is certainly a bit unfair considering the fact that both their positions are at par.
This entire episode raises a pertinent question. Do the retired Members of Tribunals need to be told by the Court or declared by the Statute that they are not eligible to practice before the respective Tribunals? When a High Court judge retires from his/her position, if they intend to practice post retirement, they do not practice before any High Court or lower Courts but appear only before the Supreme Court. This not only enhances their stature but also protects the dignity of the Judiciary and the individual alike. Likewise, the retired Members of ITAT or CESTAT or for that matter any Tribunal should have voluntarily refrained from practising before the respective Tribunals or any forum lower to the Tribunals and practice before High Courts or Supreme Court (It's another matter if they do not have a law degree – they may acquire one – better late than never). In fact, the former President of CESTAT Justice R K Abhichandani is practising in the Supreme Court and the Apex Court honourably designated him as a ‘Senior Advocate.'