Contempt For Tribunal
THIS is what most of the Commissioners in the field have – yes, undiluted contempt for the Tribunals. One good reason for this callous contempt might be the knowledge that they will not be hauled up for contempt.
Some years ago, the CESTAT in frustration suggested closure of the Tribunal if its orders are not to be implemented.[ 2006-TIOL-784-CESTAT-KOL and 2006-TIOL-785-CESTAT-MUM]
Judicial discipline, as reiterated by the highest courts of the land, requires unquestioned obedience of the higher authorities, but this principle does not find favour with our bureaucrats and they have been flouting the orders of the Tribunal with impunity. And most often with the helpless Tribunal watching in glorious isolation!
Within two years of the establishment of the CESTAT, the Tribunal was confronted with this problem of disobedience of its orders when it had to consider the case of an Assistant Collector who did not release the goods as ordered by the Tribunal. In an affidavit filed with the Tribunal, the AC, stated, “My action in not releasing the goods was totally due to my bona fide understanding of the correct legal position…”
The Tribunal considered the following questions.
1. Whether the Assistant collector disobeyed the order of the Tribunal?
2. If so, was there justification for disobeying the order?
3. Can justification be pleaded as defence?
4. Is disobedience if any wanton and deliberate?
5. To what action is the Assistant Collector liable?
And the Tribunal came to the conclusion that
1. Disobedience is established.
2. There was no justification
3. Even if there was justification, it can not be a defence.
4. Disobedience is not casual or unintentional.
5. Proper course is to initiate contempt proceedings , but it is refrained as “immaturity, lack of experience and non realisation of the consequences of disobedience could have been the reason rather than arrogance and power drunkenness.”
The Tribunal in that case observed, " When sanctity is attached to established Courts and Tribunals it follows as a corollary that all orders emanating from these Public Institutions should be respected and strictly complied with. The order must be implicitly observed, every diligence must be exercised to obey. The welfare of the people can be attained only when there is justice administered lawfully, judicially without fear or favour and those that are responsible for administration of such justice, and those seek justice as parties and those who help in the administration of justice have to be protected from insults, annoyance or even obstructions. Administration of justice can not be effective unless respect for it is fostered and maintained. Interference with it shakes the very pillar of the administration of justice and the confidence of the people in courts, which is of a prime importance to the litigants in their struggle for the protection of their rights and liberties. No Tribunal can function properly unless it is allowed to keep its dignity, and unless it has power to enforce discipline and respect in its administration of justice. ... The Assistant Collector would do well to remember that in disobeying the order of the Tribunal, she has not only attempted to undermine the authority of the institution established by law but has brought disrepute to the department."
Words with so much of sound and fury apparently signifying nothing for the disobedient officers! The young AC who had the audacity to overrule the Tribunal has matured into a senior Commissioner and so must have contempt for the Tribunal.
For the last more than two decades there have been several occasions when the Tribunal threatened officers with contempt proceedings, but there was hardly any occasion when the threat became real. Commissioners are routinely warned that if they do not implement, contempt proceedings will be initiated, but they know only too well that nothing is going to happen. So when a Commissioner is asked to personally appear before the Tribunal and explain why he disobeyed the Tribunal, he just does not bother to attend, but the same Commissioner would use all the force at his command to ensure the attendance of someone whom he summons.
We have to obey the Tribunals not because they are right but because they are a higher appellate authority and if every one has the option to obey or not to obey, the very existence of the Tribunals will become futile. As the tribunal held long ago, justification is no ground for disobedience. The Tribunal's order may be wrong; it might have been passed by somebody whose knowledge you personally know to be poor; it may lead to undesirable consequences; it may result in revenue loss, but, but the Tribunal is constituted under the law for a specific purpose and you have no business to sit in judgement over the Tribunal's judgement – you are bound by it and obey, you shall without any reservations. You have options like appeal but disobedience is not an option.
It is not as if the Board wants commissioners to disobey the tribunal orders. It is only the overzealous commissioners, who on their own flout the orders of the Tribunal. In Circular No. 53/90 Board told the Commissioners, Where such refunds are ordered by courts and CEGAT, they may be allowed to avoid contempt proceedings in cases where no stay order could be obtained from appellate courts.
It is not as if the Tribunal is totally helpless and the officers can have a nice time flouting its orders. They can be hauled up for contempt. No less an officer than the mighty Law Secretary of India had been charged with contempt of the ITAT.
The Law Secretary had written a couple of letters to the President of the ITAT about an order passed by a bench. The President took it as contempt and filed a contempt petition in the Supreme Court. During the proceedings, the Law Secretary apologised, but the Supreme Court was not impressed when it remarked,
He has travelled far beyond exercising administrative control over the 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.
By the time the judgement was delivered, the Law Secretary had retired and since was not in a position to inflict further damage, the Supreme Court awarded a light punishment of fine of Rs. 2000/-. You can see the details of this in
“ Be you ever so high, the law is above you”