(1.) PETITIONER calls in question legality of order passed by a Division Bench of Orissa Sales Tax Tribunal (in short, "the Tribunal") holding that it has no power to restore an appeal decided ex parte on merits. The appeal in question is S.A. No. 1120/88-89.
(2.) THE undisputed factual position is as follows : The appeal was posted to June 30, 1994 for hearing and was disposed of ex parte in the absence of the present petitioner who was respondent in the appeal filed by the State. Petitioner filed an application for restoration of appeal on November 17, 1994, stating that on account of unavoidable difficulties, there was non-appearance. The Tribunal as indicated rejected the application on the ground that there is no provision in the Orissa Sales Tax Act, 1947 (in short, "the Act") and Orissa Sales Tax Rules, 1947 (in short, "the Rules") permitting restoration of a second appeal disposed of in the absence of respondent, on merits. It was observed that no decision either of this Court or apex Court was cited to substantiate the plea that Tribunal had power to do so, though reference was made to two appeals which were disposed of ex parte and were restored by Full Bench of the Tribunal. It was further observed that learned counsel appearing for the applicant for restoration could not submit under which provision of the Act and Rules those cases were restored by Tribunal. Observing that it was unable to find out any provision empowering restoration, and in the absence of any such provision, the prayer for restoration was rejected.
(3.) PURSUANT to our direction, records of the Tribunal were produced before us. We find that in the list of documents filed on August 22, 1995 (as appearing at page 25 of the records of the Tribunal) reference has been made to the order for restoration petition dated February 1, 1994 in two second appeals passed by the Full Bench. Division Bench hearing the application in the present case, has made a queer observation that it could not be shown as to under what provision Full Bench directed restoration. The least it could have done was to read the order and find out the rationale behind the order. Had the Division Bench taken a little pain it could have noticed that reference was made to a decision of this Court in Jagadamba Sabai Rope Co. 1977 CTR 156 amongst other decision. The order impugned shows complete non-application of mind and borders on judicial indiscipline and impropriety. Tribunal has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The implied grant is of course limited by the express grant and therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. (See Maxwell on Interpretation of Statutes. Eleventh Edition). A Division Bench of this Court in Smt. Aruna Kar v. Dr. Sarat Dash and Nachhi (1973) 75 CLT 24 also dealt with these aspects. The matter can be looked at from another angle. A Bench of two Members should not lightly disregard the decision of another Bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger Bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. [See Union of India v. Paras Laminates (P.) Ltd. [1991] 80 STC 263 (SC)].