They make a discrimination between members of the same class i.e. retired employees, the court said.
Calcutta High Court has read down the Comprehensive Area Development Corporation Employee's [Death cum Retirement] Benefit Regulations 2008, by striking down the cut-off date. Justice I.P. Mukerji has held that the employees who retired before the cut-off date are also entitled to pension.
The pension regulations were made applicable with retrospective effect from 1st April, 2008. It was published at a much later date on 10th December, 2008. The benefit was extended to all whole time employees, permanent and temporary who were in the service of the Corporation on 1st April, 2008 and also to those who were appointed on and after that date. The employees, by these Regulations became entitled to pension after ten years of qualifying service. This pension was payable on superannuation or on voluntary retirement after 20 years of qualifying service and in some other contingencies. The retired employees who had retired before April 1, 2008 had challenged the fixation of the cut-off date.
DISCRIMINATION BETWEEN MEMBERS OF RETIRED EMPLOYEES
The Court initially was not inclined to accept the contentions of the petitioner against fixation of cut-off date since it is settled law that a government organisation is entitled to announce a policy for payment of pensionary benefits to a class of its employees, based on the period of service rendered, fixing a cut-off date.
However certain facts were pointed out at the end of the hearing which made the Court read down the provisions. The court said “Following the decisions cited by the learned Additional Advocate General this writ had to be dismissed. But as Lord Denning remarked in a famous case, a little change in the facts can make all binding ratio on an assumed state of facts, not applicable. The framers of the Regulations have consciously given it retrospective effect to include a specified class of retired employees. They make a discrimination between members of the same class i.e. retired employees. It confers benefits on those who retired between 1st April, 2008 and 10th December 2008 and leave out the rest.”
Reading down the provisions to include the retired employees who retired before 1st April 2008 as well, the Court observed “The Nakara case has laid down that the court is entitled to read down an offending piece of legislation to make it compatible with the Constitution. This is not a piece of legislation at all. The regulations are administrative instructions. Applying the principle laid down in that case I am inclined to read down the regulations. In those circumstances the benefits of these regulations have to be extended to the petitioning retired employees also. The part of the Regulations fixing a cut-off date is struck down. The petitioners will be entitled to the benefits of these regulations. They will have to return the entire amount of the employer's share towards Contributory Provident Fund with interest to avail of the benefit of this judgement”.
Read the Judgment here.