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TMI Blog2012 (3) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... llant: SHRI R.K.SHARMA For Respondent: SHRI DEEPAK AGNIHOTRI, SHRI CHETAN MITTAL, Sr. Advocate, alongwith SHRI ROHIT SETH and SHRI PUNEET GUPTA, SHRI G.S.BAL - For Respondent ORDER MR. JUSTICE S.D.ANAND, MEMBER (J):- Though a conjunctive perusal of the pleadings raised by the parties and the documentation available on record (including the confidential cover produced by the official respondents) indicates an unsavoury and uneasy situation prevalent at the Chandigarh Bench of the Income Tax Appellate Tribunal (hereinafter referred to as 'the ITAT') and the litigating parties are found to be engaged in an unenviable endeavour to wash the proverbial dirty linen in public, the adjudicatory exercise in this O.A. has to compulsively come about on the touchstone of legality. The prevalence of the factual scenario, indicating almost complete want of trust and faith inter-se, ought to be foreign to each segment of dispensation of justice which (system), for optimum and unbiased delivery requires an ambience based upon balanced and conscientious approach. For reasons of propriety, we are not noticing any part of the mutual acrimony as between the personnel who are a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of malafides and averred that the boot is, in fact, on the other leg inasmuch as it is the applicant herein (and certain other members of the ITAT, Chandigarh), who had been subjecting her to harassment. In that context, it is averred that there were different bunches of (identical) appeals which came to be assigned to different combinations of Benches. A particular bunch came to be heard by a Bench consisting of the applicant and the private respondent on 3/4.11.2011. The applicant (while being a part of another Bench with a different Member) heard arguments in the other bunch on 22.11.2011. The earlier bunch came to be allotted to the private respondent for dictation. She prepared a draft on 4.11.2011 and forwarded it to the applicant who retained it with him till 30.12.2011 and, thereafter, returned it to her with an endorsement that the other Bench, consisting of the applicant and another Member, had taken a contrary view in the course of their decision announced on 26.12.2011. The plea made is that it was inappropriate on the part of the applicant to retain the draft judgment (forwarded by her) till 30.12.2011 and, then, to return it with endorsement dated 30.12.2011 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifference. Perhaps such a situation can be avoided if point/s of difference confines to the conclusion to be arrived at. Members should, as far as possible, try to avoid differing in opinion on small issues of fact and also as to the decision on a Reference Application or Miscellaneous Application. Even in a case where one of the Members desires to pass a separate but concurring order, he should send a draft of the proposed order for the perusal of the other Member before it is signed." 11. It is to state the obvious that transfer is an incident of public service. There is a judicial advisory in the view obtained by the judicial summit dispensation that the Courts/ Tribunals ought to refrain from interfering in transfer matters unless, of course, there is an element of perversity or extreme arbitrariness/ bias in the grant of the relevant order. Since that proposition of law is uncontroverted, we do not feel called upon to quote a number of judicial pronouncements cited by the learned counsel for respondents during the course of hearing in support of the legal proposition aforementioned. 12. In the present case, the impugned order came about in pursuance of a consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be necessary in a case where the employer forms a bonafide opinion that retention of the employee at a particular place even for a short period will cause injury to public interest." 16. In the course of the judgment, the Division Bench had also noticed the following observations made by Hon'ble Mr. Justice V.K. Bali (as His Lordship then was) in the reference order:- "In my considered view simply because there are complaints against an employee and he had not been heard prior to his transfer, the order of transfer cannot be styled to be either arbitrary, unreasonable or capricious or even based upon extraneous considerations. Giving right of hearing in my considered view, would be rather counter-productive when the complaints are of serious nature. Right of hearing in its very nature would take a considerable time because the said complaint shall have to be put to the delinquent officer to which he would have a right to reply. In the very nature of things the reply shall have to -be considered and in case the reply given by the person concerned requires facts to be established, evidence shall have to be recorded. A right of hearing has not to be an empty formality and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a pure and simple case wherein the applicant cannot himself be said to be free from blame. He had heard arguments in one bunch of appeals, orders had been reserved and the matter was allotted to private Respondent No.4 for dictation. In that case, the arguments had been heard on 3/4. 11.2011. Private Respondent No.4 had forwarded the draft judgment to him in the last week of November 2011 to the applicant who retained it with him upto 30.12.2011. In the meantime, the applicant had, while as a part of another Bench, heard arguments in another bunch of appeals on 22.11.2011. The judgment in that case was announced on 26.12.2011. The view taken by that bench was contrary to the view proposed by Private Respondent No.4 in the course of draft judgment dated 4.J 1.2011. In the first instance, the retention of the draft judgment for such a long duration would not appear to be appropriate. Though we would not comment upon the averment on behalf of Private Respondent No.4 that the applicant purposely retained the announcement in this case in abeyance in order to be able to take a different view as a Member of the other Bench, the fact of retention of the draft judgment dated 4.11.2011 upto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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