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TMI Blog2011 (11) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITAT has no power or authority to write the ACRs of the Members. Further, being a judicial body, the ITAT should have a judicial autonomy and therefore, the first respondent cannot act like a Reviewing Authority. Conduct of the petitioner (judicial member of ITAT) - held that:- Nobody has raised his little finger against the petitioner about his honesty and integrity, but all the allegations are pinpointed towards his arrogant behaviour and ignoring the judicial conventions. - All these would force us to direct the petitioner to mend his ways and conduct himself in a dignified manner and follow the established judicial conventions, so as to maintain the decorum on and off the dais. - W.P. No.7715 of 2010 and M.P.No.3 of 2010 - - - Dated:- 30-11-2011 - MR.JUSTICE ELIPE DHARMA RAO AND MR.JUSTICE D.HARIPARANTHAMAN JJ. Represented by: For petitioner: Mr.Vijaynarayan, S.C.for M/s.Karthik For R1 R2: Mr.M.Ravindran, Addl.Solicitor General, assisted by Mr.K.Mohanamurali, ACGSC For R.4, R7 R8: Mr.S.Vijayakumar ORDER ELIPE DHARMA RAO, J. The petitioner, a Judicial Member of the Income-tax Appellate Tribunal, Chennai, is challenging the appointment of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Administrative Tribunal, Chennai has accepted the contentions urged on the part of the official respondents and further taking into consideration the fact that the fourth respondent, after getting selected as Vice President, has attained superannuation on 6.11.2009, has dismissed the original application filed by the petitioner, resulting in him approaching this Court with this writ petition. 6. After hearing all the parties at length, two points that arise for consideration are: 1.Whether the post of Vice President is a promotional post to that of the Member of the ITAT or not. 2.Whether the President of the ITAT is having any authority or right to record the Annual Confidential Reports of the Members. If so, whether the first respondent/Government of India is having any right to review the ACRs of the Members. POINT No.1: 7. The Vice Presidents of ITAT are appointed from amongst the Members in terms of Rule 7A of the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963, which reads as follows: "The Central Government may appoint from among the Members one or more persons as Vice-President or, as the case may be, Vice Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the High Court, as it is the Chief Justice who decides which Judge is to sit in which Bench and at which place (in High Courts where there are Benches in two or more cities). Therefore, there cannot be any doubt that the President of ITAT exercises a prerogative right of constituting the Benches and transferring the members and others from one Bench to other. 12. Under Section 252(5), the President can delegate his powers and functions, for the sake of administration, in respect of the Benches either on Senior Vice President or on Vice Presidents of the Benches. The delegation of powers of the President could only be to either a Senior Vice President or to the Vice Presidents, but not to the Members. Therefore, even though the pay of the Vice President and the Members has been unified, it cannot, in any way be called that the posts of Vice President and Member have been merged. When the scheme of things contemplated under the Income-tax Act, as narrated above, would keep the Vice President over and above the level of Member, the reliance placed by the petitioner on O.M.No.AS14017/66/2008-Estt RR, dated 9.3.2009, to bring home the point 'where all posts in a particular grade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise and Service Tax Appellate Tribunal can write the ACRs of the Members, in REVENUE SECRETARY vs. SYED LIAQUATH PEERAN [2007 (208) ELT 331 (Madras)], a Division Bench of this Court, speaking through one of us (Justice Elipe Dharma Rao) has held that the 'President not competent authority and having no power to write ACRs of Members.' Pursuant thereto, it is seen from the proceedings of the Government of India, Ministry of Finance, Department of Revenue in R-20011-32/2010- ADIC-CESTAT, dated 28.10.2010, that the President, CESTAT, who used to write ACRs of its Members till the above said order of this High Court, dated 1.12.2006, is not writing ACRs. of its Members. We have also been informed by the learned counsel appearing on either side that though an appeal has been preferred before the Honourable Apex Court as against the above said order of this Court, (but, no SLP number has been furnished by either of the parties), no stay order has been passed by the Honourable Apex Court. 17. Therefore, following the above order of this Court, we hold that the President of the ITAT has no power or authority to write the ACRs of the Members. Further, being a judicial body, the ITAT shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished judicial conventions. From this, we understand, that the petitioner is transferring his personal feelings against his colleagues into the orders circulated by them and nurturing unnecessary hatred and ill-feelings. 21. No institution could survive in a democracy unless it earns public esteem; and it can earn the public esteem only by discharging its duties impartially and expeditiously. Judiciary is no exception for this principle. While constructive criticism is always welcome, cynical attitude retards rather than helps to remedy the defects. It is not often realised that any uniformed criticism or loose talk from any quarter, though for the moment it appears to be innocuous, may ultimately destroy the prestige of the Judiciary and the confidence of the public reposed therein. The impartiality of the Judges has to be not only actual but also manifest and apparent. This is in conformity with the oft-repeated maxim-"Justice must not only be done but also appear to be done.' 22. No justification whatsoever was advanced and can be advanced for such an intentional default and the casual attitude of the officers/officials concerned in the hierarchy. These authorities are instr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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