Comrade Judges, Differ with Dignity - rarely and in exceptional cases
High Court Tells CESTAT Members
OF late, it is observed that many cases in CESTAT, especially in a particular Bench predominantly in respect of orders passed by a particular Member, are routinely referred to a Third Member as there is difference of opinion between the two Members in a Division Bench. This shakes the confidence of the litigant on the great institution and all kinds of rumours spread on the real reason for difference of opinion. If two members of the Tribunal do not agree on an issue, it clearly means the assessee was not wrong in assuming a particular stance as correct and legal as at least one Member of the Tribunal is on his side. In such situations, it is unfair and unjust to ask him for pre-deposit.
In certain genuine cases, it is possible that the Members may have a difference of opinion, but if difference of opinion is based on who gives the opinion rather than what the opinion was, there is a danger to the credibility of the so-called temple of justice.
In a mild rebuke with deep humility, the High Court found that the frequent reference to Third Member hampers the administration of justice and affects the working and functioning of the Tribunal, which caused the High Court more anguish than anger. The High Court noted that this was one of the best Tribunals and its example was cited even during the course of imparting training to the Judicial Officers at Academies.
The High Court obviously did not want to hurt or embarrass the Members of the Tribunal and observed, "We are not at all critical of the manner in which the Tribunal is functioning and working. We are aware of the fact that at times large number of cases take a toll on the Judicial Officers or the Members. However, Cordiality, Co-operation, Courtesy and respect for each other's view would assist in avoiding divergence of opinion on factual issues. We have also not made any comments much less adverse and which may be taken as a reflection on the working of any of the members in this case. It is only the increasing tendency to record a dissent that has prevailed us to take note of the grievance raised before us."
The word "Comrade" as defined in the concise Oxford Dictionary means a "workmate, friend or companion". The word and spirit need not be forgotten even by Judges and Adjudicating Bodies. We should continue the debate, dialogue, discussion and deliberation but differ rarely and in exceptional cases, with dignity.
A junior colleague who did a quick statistical survey and came out with the finding that more than 50 cases have been referred to Third Member in the last one year and he came up with a startling conclusion that not even a single order of the President is differed with and referred to Third Member. He wanted me to explain to him this phenomenon. I told him that other than the President, there were several Members whose orders are not differed with. He said he is referring to the Benches where the Third Member cases are maximum. I asked him to find out the reasons for himself. He came out with some startling findings:
1. The President's orders are Perfect to the P - nobody can find any different view.
2. Everybody else is so afraid of the president, that they dare not differ from him.
I was too afraid to make any comment against this irreverent boy.
For more details on the High Court order please see Breaking News.