TaxTMI 
TaxTMI 
2007 (4) TMI 409
X X X X Extracts X X X X
X X X X Extracts X X X X
....embers posted at one Bench of the CESTAT are, owing to exigencies and requirements, also deputed, on a temporary basis, to other Benches, for short durations. Thus, for the period 16-4-2001 to 27-4-2001, the applicant was, pursuant to administrative orders of the President of CESTAT to this effect, deputed to hear matters at the Mumbai Bench of CESTAT, where he was asked to sit with Shri Gowri Shanker, Member (T), who presided over the Bench. 3. During the week 16-4-2001 to 20-4-2001, a batch of appeals, numbered C/500, 599-600 and 614/88, filed by various appellants, including M/s. Nuchemo Plast and Shri Devang Rasiklal Vora, were taken up and heard by the Bench comprising Shri Gowri Shanker and the applicant. After hearing both parties, judgment was reserved thereon. Shri Gowri Shanker, Member (T), as the Presiding Member of the Bench, which had heard the abovementioned Appeal Nos. C/500, 599-600 and 614/88, retained the case file with himself. Thereafter, the applicant returned to Delhi and re-commenced his duties as Member (J) therein. 4. After a year and 9 months, the applicant was informed by his personal staff that the file of the abovementioned Appeal Nos. C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 2003-04 may be submitted within 30 days of receipt of this communication to the Ministry through the Joint Secretary (R), Department of Revenue, North Block, New Delhi." 6. The applicant submitted a representation dated 21-3-2005 against the adverse remarks in his ACR for the year 2003-04. In response, respondent no. 1, vide letter dated 3-6-2005, asked the applicant to explain the reasons (with details of time) for the inordinate delay of 2 years in the pronouncement of the judgment. In his reply dated 27-6-2005, the applicant recorded the following time factors contributing to the delay in pronouncement of the judgment : "(i) Time taken at Mumbai (after conclusion of hearing) for dispatch of files to Delhi; (ii) Time taken by my personal staff at Delhi for placing the files before me; (iii) Time taken by me to record the order (This will include the time taken by the stenographer for submitting draft of order); (iv) Time taken at Delhi for dispatch of files to Mumbai; (v) Time taken at Mumbai for placing the files before Member (Technical); (vi) &....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2, who was a retired Chief Justice of the Hon'ble High Court, and is the presiding Head of a Judicial Tribunal constituted under Article 323B of the Constitution of India. Thus on the ground of want of jurisdiction, therefore, the impugned decision of respondent No. 1, as communicated to the applicant, vide the impugned letter dated 4-10-2005 (supra) cannot sustain. 10. He has further stated that both the respondents, especially respondent No. 1, have erred in treating the remarks entered by the Hon'ble Bombay High Court as "adverse" qua the applicant. The Hon'ble High Court did not make any comment with respect to the applicant, or his functioning. Rather, it only commented on the delay between the reservation of the judgment by the CESTAT, in Appeal Nos. C/500, 599-600 and 614/88, and the pronouncement of judgment therein. This delay is a matter of fact. However, the remarks could constitute the basis of an adverse entry in the applicant's ACR only if the Hon'ble High Court had, directly or indirectly, found the applicant to be responsible for the said delay. This is not the case. Further, neither the applicant nor Shri Gowri Shanker, were parties, in their individual ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....verse entries in his ACR is concerned, he has questioned the entries, raising a dispute that even if something is adverse against him the same cannot be recorded in his ACR. Such a contention is not acceptable. When the Hon'ble High Court makes an observation regarding a judicial officer, it has to be reflected in the ACR of that judicial officer. When a judicial officer discharges judicial function only, the ACR is required to be written with reference to his that function only. If no adverse entry can be recorded in the ACR of a judicial officer, the object of writing of ACR of such an officer will be defeated. The applicant cannot take a plea that even when the Hon'ble High Court made some observation in the judicial order about the manner of writing of the judgment by the judicial officer, it cannot have any bearing on his ACR. Further, in the case of Union of India & Ors. v. E.G. Nambudiri, 1991 (3) SCC 38, Hon'ble Supreme Court viewed that in deciding the representation against adverse entries in ACR, the competent authority is not under any obligation to record a reason for rejecting a representation and the order rejecting representation is not rendered illegal merely on th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of adverse entry as well as the order of rejection of his representation. The representation of the applicant was considered by the competent authority. When the applicant has alleged that the representation was considered by an inferior authority, he has not alleged anywhere that, according to him, who was that inferior authority. 16. They have further stated that the adverse remark communicated to the applicant was not with reference to the judicial order but was with reference to delay in writing the orders. Thus, the judgment cited by the applicant is not relevant to the present case. Further, the judgments in the cases of P.K. Shastri v. State of M.P. & Ors. (supra) and S.P. Lal v. High Court of Judicature at Allahabad & Anr. (supra) are not relevant to the issued involved in the present case. In this case the Hon'ble Bombay High Court has made a general observation and not observations with reference to a particular incident. 17. The respondents have argued that it has been held time and again by the Apex Court that justice should not only be done but should also appear to have been done. Similarly, whereas justice delayed is justice denied, justice withh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Tribunal to write ACRs of the members of the Appellate Tribunal, the adverse entries made against the first respondent cannot be approved. Moreover, from the record, it is elicited that when a question in regard to performance of Members, Vice-Chairman of CAT is being monitored, the Department of Personnel & Training has clarified that there is no system of reviewing APARS (Annual Performance Assessment Report) of CAT Members and that Members/Vice Chairman of CAT are selected by a Selection Committee under the Chairmanship of a sitting Judge of Supreme Court and in such circumstances, whether it can be dispensed with. For which, it was replied that since in ITAT, ACRs of Members and Vice-Chairman are written, the writing of similar practice in CEGAT, SC, etc. may be continued. Therefore, except this reply, there is no other material was placed. Therefore, in the absence of any provision of law governing the service conditions of the Members of the Tribunal, the question of writing ACRs as a practice cannot be permitted in the provisions of service law. 13. It is evident from the above discussion, a person who is a Judge or one of the members of the Appellate Tribunal can be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Administrative Tribunal), ACRs of Members and Vice-Chairman are written, the same practice may be continued in CEGAT. He also stated that there was no anomaly in Secretary being the Reviewing Authority insofar as the President being a former Chief Justice of the High Court does not carry the status of a serving Chief Justice. 22. Learned Counsel for the respondents also dwelt, at length, on judicial pronouncements relating to the need to deliver speedy justice and avoid delay in disposal of cases [Anil Rai etc. v. State of Bihar (supra); R.C. Sharma v. Union of India (supra); and Madav Hayawadanrao Hoskot v. State of Maharashtra (supra)]. He also cited the decision of the Allahabad High Court (Lucknow Bench) in the case of Jagdish Singh v. State of U.P. & Ors. (supra) to argue that there was nothing amiss in writing of confidential reports of judicial officers. He cited the order of the CAT, Jodhpur Bench, in the case of A.S. Tariyal v. Union of India & Ors., 2003 (2) ATJ 268 to argue that the scope of judicial review of adverse remarks in ACR is very limited. He also cited the judgment of the Hon'ble Supreme Court in the case of Union of India & Ors. v. E.G. Nambudiri (su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hey should have, therefore, in the fitness of things, investigated the matter in all seriousness to take corrective action. What they did instead could at best be described as a knee jerk reaction. They proceeded to hang the applicant by the closest lamp post simply for the reason that his neck nicely fitted the noose. 27. The respondents did, of course, give a post decisional opportunity to the applicant to explain the delay; that was not fair. But the major time lines, such as the date of final hearing, the date of dispatch of the Paper Book/case file by the Presiding Member to the applicant, and the date of dispatch of the draft order by the applicant to the Presiding Member, could have been easily accessed by the respondents themselves, in view of their administrative status. Instead they got into an argument with the applicant to supply the data; which was also not fair. 28. As rightly argued by the learned Counsel for the applicant, insofar as respondents have not denied the facts relating to the case in para numbers 4.2 to 4.8, which conclusively establish that the delay was mostly on the part of the Presiding Member of the Bench, who sat over the case file f....