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Judgment
T. Raja, J.—The petitioners Mr. S. Venkataramani and Mr. B. Sankaran, after putting in 33 years and 32 years of service respectively, at
the 4th respondent company at Chennai resigned from the services of the company on 3rd May, 2003. After, the acceptance of the resignation by
the company, the petitioners have become members of the Britannia Industries Ltd. Officers Pension Fund which was established by the company
under IT Rules in July, 1984.
As per the Pension Fund Rules, the petitioners are eligible for pension if they have completed 50 years of age and had put in 10 years of service
in the company. Since both the petitioners have completed the qualification to receive the pension, as per the criteria for receiving the pension the
first petitioner Mr. S. Venkataramani is eligible to receive Rs. 6,148 per month whereas the company has offered to pay Rs. 1,584 per month.
Similarly, the second petitioner Mr. B. Sankaran is eligible to receive Rs. 4,565 per month whereas the company offered to pay Rs. 875 per
month by way of amending the Pension Fund Rules.
Therefore, on 5th March, 2005, since the petitioners are going to be the badly affected parties in view of the proposed action for amending the
Pension Fund Rules by reducing the monthly pension, the petitioners made a detailed representation to the third respondent and requested the
statutory authority to reject the deed of variation submitted by the 5th respondent The Britannia Industries Ltd. Officers Pension Fund. Since no
favourable response came forward, the petitioners filed a Writ Petn. No. 10654 of 2005 for a mandamus directing the third respondent. The CIT-
III, at Kolkatta, to dispose of the deed of variation after giving the petitioners a reasonable hearing. This Court by an order dt. 31st March, 2005,
directed the CIT-III, at Kolkatta to consider and dispose of the representation given by the Britannia Industries Ltd. Pensioners Welfare
association and also the legal notice sent by the petitioners on 3rd Dec, 2004 in accordance with law after giving a fair and reasonable opportunity,
to the petitioners as well as the third and fourth respondents the Britannia Industries Ltd., and The Britannia Industries Ltd., convenant Staff
Pension Fund. The order became final as neither the CIT nor the company has filed any appeal against the order.
However, since the said order has not been given effect to contempt Petn. No. 551 of 2005 was filed complaining the disobedience of the order
passed by this Court in Writ Petn. No. 10654 of 2005, dt. 31st March, 2005. Since the CIT-III at Kolkatta has passed an earlier order dt. 17th
May, 2005 without giving opportunity of hearing to the petitioners as directed by this Court by the above said order dt. 31st March, 2005, during
the pendency of the said contempt petition two miscellaneous petitions were filed in WPMP Nos. 22044 and 22045 of 2005 seeking extension of
time for 12 weeks to provide opportunity of personal hearing to the petitioners herein so as to comply with the orders of this Court dt. 31st March,
2005 in Writ Petn. Nos. 10653 and 10654 of 2005.
The respondent also submitted that the third respondent proposed to withdraw the earlier order dt. 17th May, 2005 and willing to give an
opportunity of hearing to the writ petitioners and hereafter will pass revised order directing the order passed by this Court, on 31st March, 2005 in
Writ Petn. Nos. 10653 and 10654 of 2005. In view of the undertaking and applications filed by the respondent namely the CIT-III, at Kolkatta,
this Court by an order dt. 29th July, 2005, by recording the above said statement directed strict compliance of the direction of this Court in its
order dt. 31st March, 2005. That order also has become final as no one has preferred any appeal. Thereafter, the respondents heard the
petitioners and passed a final order. As against that order the Britannia Company has filed an appeal. During the pendency of the appeal, once
again the appellate authority has refused to issue notice of hearing to the petitioners. Therefore, the present writ petition has been filed seeking the
writ of mandamus, directing the first and second respondent, the Chairman, CBDT, and the Secretary, CBDT to give an opportunity of hearing to
the petitioners on the appeal submitted by the 4th and 5th respondent. The Britannia Industries Ltd., the Britannia Industries Ltd., Officers Pension
Fund under Rule 97 of the IT Rules against the order dt. 24th June, 2008.
Learned Counsel Mr. N.G.R. Prasad would submit that when the petitioners approached this Court by filing the Writ Petn. Nos. 10653 and
10654 of the 2005 seeking a direction to the CIT to give an opportunity of hearing to the petitioners, at the time of considering the deed of
variation, for making an amendment of Pension Fund Rules, this Court has allowed the petition and directed the original authority namely the CIT-
III, at Kolkatta to provide an opportunity of hearing to the petitioners. Unfortunately the third respondent the CIT-III, at Kolkatta failed to follow
the directions issued by this Court in the above said writ petition which gave rise to contempt Petn. Nos. 551 and 552 of 2005. While this Court
was disposing of the contempt petition, the CIT filed an application along with an undertaking to give the petitioners an opportunity of hearing by
withdrawing the earlier order dt. 17th May, 2005. Thereafter the petitioners were heard and the third respondent the CIT-III at Kolkatta has
passed a final order dt. 24th June, 2008 rejecting the request in carrying out any amendment to the Pension Fund Rules by rejecting the deed of
variation. Aggrieved by this Court order passed by the original authority dt. 24th June, 2008, 4th and 5th respondents have filed an appeal under
Rule 97 of the IT Rules in the appeal before the first respondent, the Chairman, CBDT. The petitioners also submitted that representation to the
second respondent, the secretary, CBDT to give an opportunity of hearing on the appeal filed by the 4th and 5th respondent under Rule 97 of the
IT Rules with the further request to furnish a copy of the appeal papers filed by the trustees of the 5th respondent the Britannia Industries Ltd.
Officers Pension Fund. Since the above said appeal has not been filed within 60 days, the petitioners issued a legal notice dt. 9th Aug., 2009 to the
first and second respondent to give an opportunity of hearing on the appeal filed by the company and the trustees of the pension fund. Though, the
first and second respondent have posted the matter for hearing on 18th Aug., 2009, the petitioners have not received any information from them.
Therefore, once again the petitioners were constrained to file the present writ petition seeking a direction to the first and second respondent to give
an opportunity of hearing in the said appeal.
The second submission made by the learned Counsel for the petitioner Mr. N.G.R. Prasad is that since the original authority has already given
an opportunity of hearing to the petitioners and passed an order and since the appeal before the first respondent, Chairman of CBDT is in
continuation of further proceedings from the original authority, to defend the order passed by the original authority, the petitioners who were parties
before the original authority, should be heard by the appellate authority. On that basis the learned Counsel for the petitioner prayed for allowing the
present writ petition on the basis of the earlier order passed by this Court in Writ Petn. No. 10654 of 2005 dt. 31st March, 2005 and another
order passed by this Court in contempt Petn. No. 551 of 2005 dt. 29th July, 2005.
In reply, the learned senior Counsel Mrs. Nalini Chidambaram appearing for respondents 4 and 5 would submit that the petitioners are not
entitled to have a right of hearing before the appellate authority because there is no such rule or provision enabling the respondents 1 and 2 to give
the petitioners an opportunity of hearing at the time of disposal of the appeal filed by the 4th and 5th respondents.
Secondly, since the petitioners have already submitted their written submissions, instead of hearing them in the appeal, the respondents 1 and 2
may be allowed to take on record the written statement submitted by the petitioners and appropriate order can be passed but an opportunity of
hearing need not be given to the petitioner for the simple reason that if an opportunity of hearing is given, it will open Pandora box for about 1,000
similar individual applicants to come before appellants 1 and 2 and it would be very difficult to dispose of all the appeals.
The learned Counsel for respondents 1 and 2 would submit that there is no provision under the provisions of Schedule IV for affording an
opportunity of hearing to the beneficiaries like the petitioners herein. Therefore, if an opportunity of hearing is given to one of the beneficiaries like
the petitioners, since there are 1,000 of beneficiaries and if all of then seek an opportunity of being heard in person that cannot be denied and in
this event the first respondent Chairman of CBDT would not be in a position to dispose of the appeal like this by giving individual hearing to
individual beneficiaries. While making such submissions, he has also made an alternative prayer stating that if this Court feels that such an
opportunity is required to be given he prayed to this Court to issue a direction to the employees to form an association and the elected
representatives alone represent before the first respondent CBDT about their grievances. Otherwise if the individual beneficiaries are allowed to
represent, this would end up in creating more problems to the appellate authority in disposing of the appeal expeditiously which would prejudice
the parties also.
Heard all the parties.
Admittedly, when the same petitioners Mr. Venkataramani and Mr. Sankaran filed Writ Petn. Nos. 10653 and 10654 of 2005 seeking a
direction to the original authority namely the CIT-III at Kolkatta to give a personal hearing before considering the objection made by the 4th and
5th respondent against the deed of variation for amending the Pension Fund Rules, this Court having seen that the petitioners arc not only
beneficiaries but also affected parties gave a direction to the original authority the CIT-III, at Kolkatta to provide an opportunity of hearing to the
petitioners while passing the final order. The said order dt. 31st March, 2005 was not implemented. Therefore the writ petitioners filed contempt
petition in contempt Petn. Nos. 551 and 552 of 2005. During the pendency of the aforesaid contempt petition, the original authority the CIT-III, at
Kolkatta moved two miscellaneous petitions in writ petition in WPMP Nos. 22044 and 22045 of 2005 seeking extension of time to provide
opportunity for personal hearing to the writ petitioners and also to comply with the order of this Court dt. 31st March, 2005 and subsequently, the
said order was complied with and whereby the original authority has passed an order after giving an opportunity of hearing to the petitioners.
Aggrieved by the order passed by the original authority by allowing the petitioners to participate in the hearing, an appeal was filed. Since, the
appeal is the continuation of original proceedings the appellate authority, who has taken up the appeal filed by the 4th and 5th respondents cannot
refuse to grant the same opportunity of hearing to the petitioners to defend the order passed by the original authority at the instance of the
petitioners because the appeal is a continuous process of the original application.
Secondly, when the third respondent the CIT-III at Kolkatta has not filed any appeal against the order dt. 31st March, 2005 as well as the
against another order dt. 29th July, 2005, it is too late for the respondents Nos. 1 to 3 to contend that the petitioners are not necessary parties
before the appellate authority. In any event, the petitioners have been granted opportunity of personal hearing by the original authority who passed
an order on 24th June, 2008 in favour of the petitioners. Aggrieved by the said order dt. 24th June, 2008 the respondents 4 and 5 company have
filed the appeal before the Chairman of CBDT. Therefore in all fairness, while hearing an appeal from the original authority, the CIT, the CBDT
who is the appellate authority cannot deny the reasonable opportunity of hearing to the petitioners at whose instance the impugned order came to
be passed and which has become the subject-matter of appeal before the first respondent.
Accordingly, the writ petitions are allowed. Consequently, connected miscellaneous petitions are closed. No costs.