TMI Blog2010 (11) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... icial process is thus not a bucket of readymade answers, but a process, or technique, for easing an endless flux of changing social tensions. This is illustrated in this case. 5. Heard learned counsel for the parties and perused the record. 6. This Special Leave Petition has been filed against the impugned judgment of the Bombay High Court dated 9th October, 2009 passed in Writ Petition No.3059 of 1999. 7. The appellants had filed a writ petition in the High Court complaining of violation of Article 14 of the Constitution on the ground that those Typist-cum-Computer Clerks who had been appointed in the Mumbai Port Trust prior to 1.11.1996 have to work for six and half hours a day, whereas Typist-cum-Computer Clerks (like the appellants) who have been appointed after 1.11.1996 have to work for seven and half hours (excluding lunch break). This, it was alleged, violates Article 14 of Constitution. 8. The appellant no.1 is a registered Trade Union, which represents the employees of the respondent no.1 - Mumbai Port Trust, a body corporate constituted under Section 3 of the Major Port Trusts Act. The appellant nos.2 and 3 are working as Typist-cum- Computer Clerks with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruitment of personnel in the indoor establishment, it was made clear that they will have to work for eight hours, and it is only on acceptance of that condition by them that they were given employment. According to the respondent no.1, this condition was accepted by the personnel who were appointed on indoor establishment after 1.11.1996. 10. According to the respondent no.1, since the newly recruited personnel on the indoor establishment appointed after 1.11.1996 had agreed to eight hours as their duty hours, with the retirement of personnel who were recruited before 1.11.1996 in the indoor establishment, working hours of the personnel working in the indoor establishment would uniformly be eight hours, and thus the uniformity in the working hours of the personnel working on the indoor and outdoor establishments will be brought about. It was submitted by the respondent no.1 that by adopting such practice the respondent no.1 has not violated Article 14 of the Constitution. It was also claimed that the reliance placed by the appellants on Clause 24 of the settlement dated 6th December, 1994 is misplaced because by that settlement no provision was made in relation to the duty hours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial dispute and hence we fail to understand why the High Court entertained the writ petition. It seems to us that some High Courts by adopting an over liberal approach are unnecessarily adding to their load of arrears instead of observing judicial discipline in following settled legal principles. However, we may also consider the case on merits. 15. From the record the following facts emerge : (i) As a matter of practice, duty hours of the personnel working on indoor establishment including typist-cum-computer clerk was seven hours, which included half an hour lunch break; (ii) The respondent-Port as a matter of policy decided to include a condition in the offer of appointment that was given to the personnel who were selected for being appointed as a typist-cum- computer clerk after1.11.1996 that they will have to work in shift of eight hours duration; (iii) They were to give their acceptance of this term, and it was only on their acceptance of the term that they were given appointment; (iv) It is an admitted position that so far as the personnel working on out door establishment of the respondent no.1 are concerned their duty hours were identical to the typist-cum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial organization, which now competes not only with other Indian major ports but also private ports and terminals within India and the surrounding region. In this competitive world, the only way for survival is through cost efficient service to port users. Thus systems and work procedures have to be changed to meet the demands of the Trade. This is one step to provide better and cost efficient service. 19.Thus, the reason that has been given by the respondent-Port for adopting the practice of prescribing different working hours for Typist-cum-Computer Clerks recruited after 1.11.1996 is the change in the situation, change in technology, the desire to bring in uniformity in working hours of the personnel working on indoor establishment and out door establishment. It was submitted before us that the Port considered the option of increasing the duty hours of the existing personnel working at that time on the indoor establishment. However, it was thought that effecting change in that regard may involve the Port in litigation and introduction of the change may get delayed. Therefore, it was decided by the Port to change the duty hours of the personnel recruited on indoor establishmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intelligible differentia which 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 ought to be achieved by the statute in question, vide Gopi Chand vs. Delhi Administration AIR 1959 SC 609 (see also Basu's `Shorter Constitution of India, fourteenth edition 2009 page 81). 22.Thus the classification would not violate the equality provision contained in Article 14 of the Constitution if it has a rational or reasonable basis. 23. However, the question remains: what is `rational' or `reasonable'? These are vague words. What may be regarded as rational or reasonable by one Judge may not be so regarded by another. This could lead to chaos in the law. 24. Should this vagueness or uncertainty be allowed to remain so that Judges may have total freedom or discretion? We think not. The law should be, as far as possible, clear and certain so that people know where they stand and conduct their affairs accordingly. Also, if total freedom is given to Judges to decide according to their own individual notions and fancies the law will run riot. 25. Hence in our opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter instead of relying on abstract, a priori notions of equality. 33. Coming back to the present case, the object of the new policy adopted by the respondent-Port was to bring about uniformity in the working hours of the personnel working on the indoor and outdoor establishment. For achieving that purpose the Port took a policy decision to lay down a condition in the appointment orders of the personnel recruited on indoor establishment after 1.11.1996 that they will have to work for eight hours. For the purpose of classification the date 1.11.1996 was chosen, because different duty hours were to be made applicable from the one which were applicable to the existing personnel working on the indoor establishment in relation to the persons to be employed after that date. The purpose of this was to make the organization competitive and efficient. 34. For the purpose of bringing about uniformity in the working hours of the personnel working on the indoor establishment, two options were available to the Port; (i) either to take steps to bring about change in the working hours of the personnel presently working on the establishment and then apply that change to the personnel who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d change. As observed by the great Justice Holmes of the U.S. Supreme Court, the machinery of the government would not work if it were not allowed some free play in its joints vide Missourie, Kansas and Tennesee Railroad vs. May 194 U.S. 267(1904). Excessive interference by the judiciary in the functions of the executive is not proper. In several decisions, we have held that there must be judicial restraint in such matters, vide Divisional Manager, Aravali Golf Club vs. Chander Hass (2008) 1 SCC 683. In Government of Andhra Pradesh vs. P. Laxmi Devi (2008) 4 SCC 720 the doctrine of judicial review of statutes has been discussed in great detail, and it has been observed that the judiciary must show great restraint in this connection. 40. Those who entered service after 1.11.1996 knew that they have to work for seven and half hours excluding lunch break and with open eyes they accepted the employment. Hence there is no question of violation of Article 14 of the Constitution. 41. In our opinion, fixing of hours of work, provided they do not violate any statutory provision or statutory rule, are really management functions and this Court must exercise restraint and not ordinarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cut-off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter-affidavit filed by the Government (unless it is shown to be totally capricious or whimsical), vide State of Bihar vs. Ramjee Prasad 1990(3) SCC 368, Union of India vs. Sudhir Kumar Jaiswal 1994(4) SCC 212 (vide SCC 5), Ramrao vs. All In- dia Backward Class Bank Employees Welfare Assn. 2004(2) SCC 76 (vide para 31), University Grants Commission vs. Sadhana Chaudhary 1996(10) SCC 536, etc. It follows, therefore, that even if no reason has been given in the counter-affi- davit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbi- trary and violative of Article 14 unless the said cut- off date leads to some blatantly capricious or outra- geous result. 9. As has been held by this Court in Ar- avali Golf Club vs. Chander Hass 2008(1) SCC 683 and in Govt. of A.P. vs. P. Laxmi Devi 2008(4) SCC 720 the court must maintain judicial restraint in matters relating to the legislative or executive do- main. 45. In our opinion, there is often a misunderstanding about Article 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt by the philosophic route of skepticism-by his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest. (see `Essays on Legal History in Honour of Felix Frankfurter' edited by Morris D. Forkosch.) 50. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges' preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not. In the words of Chief Justice Neely, former Chief Justice of the West Virginia Supreme Court of Appeals : I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financer, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. 51. In adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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