JUDGMENT Aftab Alam & D.S. Dhaliwal, JJ. - The short question that arises in this case for consideration by this court concerns the validity of the proviso to rule 33(8)(a) of the Bihar Sales Tax Rules, 1983 (hereinafter referred to as 'the Rules'). According to the proviso, under certain circumstance, in the event of dissent, the opinion of the Chairman would override the opinion of the other member, constituting with him, a Division Bench of the Commercial Taxes Tribunal. 2. The facts of the case are brief and can be stated thus; a penalty proceeding in terms of Section 20 of the Bihar Finance Act, 1981 (hereinafter referred to as 'the Act') was initiated against the petitioner-dealer for alleged suppression of sale and purchase of 600 tins of Mustard oil. The penalty proceeding was concluded by order, dated 24.12.1983 passed by the Commercial Taxes Officer who imposed a penalty of Rs. 24,000/- at the rate of three times of the estimated sales tax amount leviable on the alleged sale of the Mustard oil. Having been unsuccessful in his appeal, the petitioner came to the Commercial Taxes Tribunal, Bihar, Patna in Revision Case No. GY 229/87. The revision was heard by a bench of the tribunal consisting of the Chairman and another member. One of the grounds on which the imposition of penalty was assailed was that the penalty proceeding was vitiated for want of a proper service of notice to the petitioner. The learned Chairman rejected the submission and held that a notice of the proceeding was properly served upon the petitioner. However, the other learned member, constituting the division bench, disagreed with the Chairman and upheld the petitioner's submission that there was no proper service of notice and consequently the orders passed by the authorities below, imposing penalty were unsustainable. It is to be noted that at that time the tribunal did not have the third member and under that circumstance when the records of the case were put before the Chairman he held that the revision application stood dismissed in view of the proviso to clause (a) of sub-rule (8) of rule 33 of the Rules. 3. Having thus stated the facts we may now turn to the relevent provisions of the Act and the Rules. Section 8 of the Act provides for the constitution of the tribunal. It is as follows : "8. Tribunal. 3. Having thus stated the facts we may now turn to the relevent provisions of the Act and the Rules. Section 8 of the Act provides for the constitution of the tribunal. It is as follows : "8. Tribunal. - Subject to such rules as may be prescribed the State Government shall by a notification published in the Official Gazette, constitute a Tribunal consisting of one or more members to exercise all the powers and perform all the functions conferred by or under this part or any other law for the time being in force upon such a Tribunal." 4. Rule 33 in its various sub-rules contains the provisions concerning the composition and the manner of functioning of the tribunal. Sub-rule(1) of rule 33 gives the tribunal the name of 'Commercial Taxes Tribunal'. Sub- rule 2 provides that it would consist of three members one of whom would be its Chairman; the Chairman would be either a retired High Court Judge (not exceeding 65 years in age) or a Judicial Officer of the rank of a District Judge. Another member would be an officer of the Commercial Taxes Department of the State Government, not below the rank of Sr. Joint Commissioner. And the third member would be a Chartered Accountant possessing the necessary qualifications as laid down in the three sub-clauses of sub-section (2). 5. Sub-section (4) enjoins upon the State Government to fill up any vacancy in the membership of the tribunal without any delay. Sub-section (4) is as follows: "Any vacancy in the membership of the Tribunal shall be filled up by the State Government as soon as may be possible." Sub-section (5) provides that in case of vacancy in the post of Chairman the Government may appoint one of the remaining members to act as Chairman. Sub-section (6) deals with the tenure, pay and allowances of the Chairman. Sub-section (7) provides that the functions of the Tribunal would be exercised by a bench to be constituted by the Chairman consisting of one, two or three members. It would be useful to reproduce here sub-section (7) which is as follows: "7. The functions of the Tribunal shall be exercised by a bench to be constituted by the Chairman consisting of one, two or three members. It would be useful to reproduce here sub-section (7) which is as follows: "7. The functions of the Tribunal shall be exercised by a bench to be constituted by the Chairman consisting of one, two or three members. The nature of cases to be disposed of by either of these benches shall be under the di~8retion of the Chairman : Provided that a bench consisting of only one member or two members may in its discretion refer a case to a larger bench of two or three members, as the case may be." Then comes sub-section (8) which is as follows : "(8)(a) Where an application is heard by all the three members of the Tribunal and the members are divided in opinion on any point or points, such point or points shall, subject to the provisions of Section 48, be decided in accordance with the opinion of the majority: Provided that if the post of anyone of the members is vacant such points shall be decided in accordance with the opinion of the Chairman. (b) Where an application is heard by a bench consisting of two members, whether it consists of the Chairman or not and the members are divided in opinion on any point or points such point or points shall be referred to a bench consisting of all the three members." Sub-rule (10) enables the Tribunal to frame regulations with the previous sanction of the State Government for regulating its procedure and other matters incidental to the disposal of its business. We are omitting to mention sub-rules (3), (9) and (11) as they have no application to the present controversy. 6. From sub-rule (8) as quoted above, it appears that its clauses (a) and (b) incorporate the natural and logical procedure commonly followed in case of difference of opinion between the members constituting a bench hearing a case. 7. It is, however, the proviso to clause(a) of sub-rule(8) which according to the petitioner is so unreasonable as to make it liable to be struck down. The proviso relates to a situation where the post of one of the two members is vacant and the tribunal is functioning with a Chairman and only one of the two members. 7. It is, however, the proviso to clause(a) of sub-rule(8) which according to the petitioner is so unreasonable as to make it liable to be struck down. The proviso relates to a situation where the post of one of the two members is vacant and the tribunal is functioning with a Chairman and only one of the two members. In that situation if the Chairman and the other member hear a case together constituting a division bench and then arises a difference of opinion between them on some point(s), the proviso stipulates that those point(s) would be decided in accordance with the opinion of the Chairman. In other words, it gives the opinion of the Chairman the dominant and overriding status. 8. We find ourselves in agreement with the submissions advanced on behalf of the petitioner that such a provision is likely to reduce the other member to little more than a rubber stamp and it would discourage him from exercising any independent judicial function. In such a situation the only course open to the other member would be to agree with the Chairman because any views expressed by him in disagreement with the Chairman would be of no consequence. The right of a judge to dissent is as fundamental to the judicial process as the citizen's right to dissent in a domocracy. By taking away the member's right of dissent the proviso strikes at the root of the cherished ideal of independence of judicial process. 9. Mr. Advocate General tried to sustain the proviso by submitting that under sub-rule (2) only a retired High Court Judge or a Judicial Officer could be appointed to the post of Chairman. He further submitted that by virtue of long judicial experience the opinion of the Chairman on legal points was rightly accorded the dominant status. In support of his submission he invited our attention to a special bench decision of this court in Anirudh Prasad Choudhary vs. State of Bihar, 1996 (1) P.L.J.R. 633 in which one of the judges (B.L. Yadav, J.) referred to the following observation by Frankfurter, J: "This is achieved through training, professional habits, self discipline and that fourtunate alchemy by which men are loyal to the obligation with which they are entrusted." 10. We are unable to accept the submission. We are unable to accept the submission. The observation of Frankfurter, J. made in a totally different context is of no application to this case. It is evident from clauses (a) and (b) of sub-rule (8) that for the purpose of hearing and deciding cases under the Act, the Chairman and the other two members carry equal weight and the opinions or views of one of them cannot be preferred over those of the others. To make the opinions and views of one of the members constituting the bench dominant over the views of the other member appears to us to be contrary to the well established judicial norms. 11. Mr. Advocate General then submitted that the object of the proviso was simply to ensure that the tribunal did not become disfunctional due to vacancy on the post of any of the two members other than the Chairman. The submission does not appeal to us and we fail to see why in order to make the tribunal functional the other member should be made utterly disfunctional. Further, in our view the tribunal can easily continue to function even without the offending proviso. From our judicial experience we can confidently say that occasions when there is a difference of opinion between members constituting a bench arise in cases few and far between. In most of the cases the members on a bench respond similarly. In a few cases where there might be some difference in the beginning those differences are mostly resolved by mutual discussion and it is very seldom that the two members on a bench take positions which remain, till the end, mutually irreconcilable leading to a dissenting judgments or orders. The number of such cases should normally not exceed 5% of the total number of cases heard by a bench and such cases can, therefore, be kept pending awaiting appointment of the third member to be heard by a full bench of the tribunal as provided under clause(b) of sub-rule (8). 12. Further, in our view the impugned proviso also tends to dilute the urgency, envisaged under sub-rule(4) in filling up the vacancy in the tribunal without any delay. If the proviso is allowed to subsist it may have the effect of lulling the government into complacency and it may loose the sense of urgency to fill up the vacancy. 12. Further, in our view the impugned proviso also tends to dilute the urgency, envisaged under sub-rule(4) in filling up the vacancy in the tribunal without any delay. If the proviso is allowed to subsist it may have the effect of lulling the government into complacency and it may loose the sense of urgency to fill up the vacancy. But if the course suggested by us is adopted it would give the government an additional reason to make the necessary appointment without any delay. 13. We accordingly hold that the proviso to sub-rule (8) (a) to rule 33 is wholly unreasonable and invalid. We expect the Government to make suitable amendments in the rule in the light of the observations made above. 14. In fairness to the Advocate General we may mention that he also tried to advance submissions to persuade us that the order of the other member was clearly wrong and the Chairman had arrived at the correct findings. We declined to hear him on that question as it did not arise for our consideration in this case. 15. For the reasons discussed above we set aside the operative part of the order by which the revision was dismissed and remit the matter to the tribunal. Normally we should have directed that the revision be placed before the Full Bench of the tribunal as provided under sub clause (b) of rule 33(8). Mr. V.N. Sinha, learned G.P.IX, however, informed that the appointment of the third member (Chartered Accountant) has been stayed by this court with the result that the effective membership of the tribunal is once again reduced to two, i.e., one Chairman and one member. 16. Mr. Sinha, however, informed us that during the past ten years the Chairman and the Departmental member whose orders are before us have retired and their places have been filled up by other incumbents. This matter can, therefore, be heard by a division bench consisting of the Chairman and the departmental member. If they take the same view the matter will abide by their decision. However, in case of difference of opinion between them the matter will have to be heard by a full bench of the tribunal as and when it is available. 17. In the result, this writ petition stands allowed with no order as to costs.