TRANSPORT & DOCK WORKERS UNION & Ors. v. MUMBAI PORT TRUST AND. ANR

Judgment

14 (ADDL.) S.C.R. 873 TRANSPORT & DOCK WORKERS UNION AND ORS. V. MUMBAI PORT TRUST AND. ANR. (Civil Appeal No. 9753 of 2010) NOVEMBER 15, 2010 · [MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.] A B Servi93 Law - Fixation of working/duty hours with · reference to date of appointment - Challenge to - Plea of , discrimination - Violation of Article 14 of the Constitution C alleged - Typist-cum-Computer Clerks in Bombay Port trust - Those appointed prior to 1-11-1996, working only for 6Y2 . hours a day while those appointed after 1-11-1996 made to work for 7Y2 hours a day - Such classification with reference · to date of appointment challenged - Held: Since the D classification with reference to the date of appointment of · typist-cum-computer clerks was for the purpose of bringing about uniformity in working hours of the personnel working in indoor and outdoor establishments, and its aim was to make the organization competitive and efficient, it cannot be said . E that it was unreasonable and hence violative of Article 14 of the Constitution - A/so, the employer-Port Trust wanted to rationalize its activities by having uniform working hours for its indoor and outdoor establishment employees, while at the same time avoiding labour disputes with employees , F appointed before 1-11-1996 - Avoidance of labour disputes is a/so a reasonable basis for the classification - Constitution of India, 1950 - Article 14. ' Service Law - Fixation of working/duty hours by employer Interference by Court - Scope - Held: Fixing of hours of G - work, provided they do not violate any statutory provision or statutory rule, are really management functions - Court must exercise restraint and not ordinarily interfere 873 H 874 SUPREME COURT REPORTS [2010] 14 (AIDDL.) S.C.R. A with such management functions - Judicial Review - Scope. Constitution of India, 1950 - Article 14 - Equality clause - Violation - Reasonable classification - Test to determine stated - Held: Differential treatment, per se, does not constitute violation of Article 14 - Article 14 is violated only when there is no reasonable basis for differentiation. 8 Coastitution of India, 1950 - Article 226 - Writ jurisdiction under - Held: Is discretionary jurisdiction - The discretion should not ordinarily be exercised if an alternative remedy is C available. Appellant no.1 is a registered Trade Union, which represents the employees of respondent no.1- Mumbai Port Trust, a body corporate constituted under Section 3 0 of the Major Port Trusts Act. The appellant nos.2 and 3 are working as Typist-cum-Computer Clerks with respondent no.1 and were appointed to that post after 1.11.1996. The appellants filed a writ petition in the High Court E complaining of violation of Article 14 of the Constitution on the ground that while Typist-cum-Computer Clerks appointed in the Mumbai Port Trust prior to 1.11.1996 worked for six and half hours a day, Typist-cum-Computer Clerks (like the appellants) who had been appointed after F 1.11.1996 were made to work for seven and half hours (excluding lunch break). This, it was alleged, was discriminatory and violated Article 14 of Constitution. The appellants also claimed that this practice was contrary to Clause 24 of the settlement dated 6th December, 1994 G reached between the employees Union and the respondent Port, and also violated Section 9A of the Industrial Disputes Act. They prayed that either their duty hours be reduced by one hour, or else they be given overtime allowance for one hour. The instant appeal is H TRANSPORT & DOCK WORKERS UNION AND ORS. 875 v. MUMBAI PORT TRUST filed against the judgment passed by the High Court in A the writ petition. The question which arose for consideration in the instant appeal was whether the action of the respondent no.1 in prescribing different working hours for typist- cum-computer clerks working in their establishment with reference to their date of appointment is contrary to the guarantee contained in .Article 14 of the Constitution. 8 Dismissing the appeal, the Court c HELD:1. The writ petition filed by the appellants should have been dismissed by the High Court on the ground of existence of an alternat_iye remedy under the Industrial Disputes Act. It is well settled that writ jurisdiction is discretionary jurisdiction, and the D discretion should not ordinarily be exercised if there is an alternative remedy available to the appellant. In the instant case , there was a clear alternative remedy available to the appellant by raising an industrial dispute and hence one fails to understand why the High Court E entertained the writ petition. [Para 14] [886-D-E]

#2. The reason that has been given by the respondent Port for adopting the practice of prescribing different 1 working hours for Typist-cum-Computer Clerks recruited after 1.11.1996 is the change in the situation, change in F technology, the desire to bring in uniformity in working hours of the personnel working on indoor establishment and out door establishment. The respondent-Port contended that it had considered the option of increasing the duty hours of the existing personnel working at that G time on the indoor establishment. However, it thought that effecting change in that regard may involve the Port in litigation and introduction of the change may get delayed. Therefore, the Port decided to change the duty hours of the personnel recruited on indoor establishment after H 876 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R. A 1.11.1996 without disturbing the duty hours of the the indoor personnel working at that time on establishment, after giving the personnel, to be newly recruited, a clear understanding that in case they accept the offer of appointment, they will have to work for eight B hours and it is only on their acceptance of this term that they were given the appointment. Thus, for the achievement of the object i.e. bringing in uniformity in the duty hours of the personnel working on the indoor establishment and out door establishment, the c respondent-Port classified persons working on the indoor establishment for the purpose of duty hours into two classes, the basis for classification being the date of their appointment, and the object being to become competitive in business and efficient. [Para 19] [888-H; D 889-A-E]

3.1. Article 14 of the Constitution does not take away from the State or its instrumentality the power of classification, which to some· degree is bound to produce some inequality. Mere inequality is not enough to violate E Article 14. Differential treatment, per se, does not constitute violation of Article 14. It denies equal protection only when there is no reasonable basis for differentiation. If the law or the practice deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. [Para 20] [889- F-H; 890-A] F

3.2. Article 14 does not prohibit reasonable G classification for the purpose of legislation or for the purposes of adoption of a policy of the legislature or the executive, provided the policy takes care to reasonably classify persons for achieving the purpose of the policy and it deals equally with all persons belonging to a well defined class. It is not open to the charge of denial of H TRANSPORT & DOCK WORKERS UNION AND ORS. 877 v. MUMBAI PORT TRUST equal protection on the ground that the new policy does A not apply to other persons. In order, however, to pass the test of permissible classification, as has been laid down by the Supreme Court in the catena of its decisions, two conditions must be fulfilled; (1) that the classification must be founded on an intelligible differentia which B distinguishes persons or things that are grouped together from others left out of the group and (2) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. Thus the classification would not violate the equality provision c contained in Article 14 of the Constitution if it has a rational or reasonable basis. [Paras 21 and 22] [890-B-E]