Bombay High Court
Best Workers Union vs Union Of India And 4 Ors on 24 October, 2016
skc 1 29-WP-2334-14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2334 OF 2014
BEST Worker's Union .. Petitioner
versus
Union of India & Ors. .. Respondents
Ms Neeta Karnik for Petitioner.
Ms Kavita Anchan i/b. M/s. M. V. Kini & Co. for Respondent Nos. 3
and 4.
Mr. A. I. Patel - Addl. G.P. for State.
CORAM: DR. MANJULA CHELLUR, C. J. AND
M. S. SONAK, J.
DATE : 24 OCTOBER 2016
ORAL JUDGMENT :
1] Heard learned counsel for the parties.
2] The petitioner which claims to be an approved and
representative union established to espouse the cause of the
employees in the transport section and other common departments of
Brihanmumbai Electric Supply and Undertaking (BEST) seeks
declaration that section 16 (1) of the Motor Transport Workers Act,
1961 (said Act) and the second proviso to section 13 of the said Act
are ultra vires Articles 14 and 21 of the Constitution of India and be
therefore struck down.
3] Ms Neeta Karnik, learned counsel for the petitioner submits that
section 13 of the said Act mandates that no adult motor transport
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workers shall be required or allowed to work for more than 8 hours in
any day and 48 hours in any week. However, she submits that the
second proviso to section 13 completely negates this mandate by
permitting the employer to require motor transport workers to work for
more than 8 hours in any day or more than 48 hours in any week. She
submits that the dilution which the second proviso to section 13
brings about to the mandate of section 13(1) is arbitrary and violates
Article 14 of the Constitution of India. She further submits that
requiring any motor transport workers to work beyond 8 hours in any
day or more than 48 hours in any week, adversely affects the right to
life of such workers, constitutes bonded labour and is consequently
violative of Article 21 of the Constitution of India.
4] Ms Karnik further submits that section 16(1) of the said Act
which permits spread over of more than 12 hours in any day takes no
cognizance whatsoever of the conditions of service in metropolitan
areas where, it is practically impossible for the workers to afford any
housing or place, where to take rest. She submits that the provisions
contained in the second proviso to section 13 and section 16 of the
said Act, are virtually being observed in breach on regular basis in
metropolitan places. Such breach or abuse of the statutory provisions
affects the life and health of the transport workers and this according to
her constitutes sufficient reason to declare the provisions as ultra vires
Articles 14 and 21 of the Constitution of India. She submits that the
impugned provisions, to the extent, they are in variance with several
other labour legislations like the Factories Act, Shops and
Establishment Act, Construction Labour Act etc. practice or permit the
practice of hostile discrimination only against motor transport workers
and for this reason also, they violate the guarantee of equality
enshrined in Article 14 of the Constitution of India. For all these
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reasons, Ms Karnik submits that the impugned orders are liable to be
declared as ultra vires and struck down. She relies upon the following
decisions in support of her contentions :
(I) Atam Prakash vs. State of Haryana & Ors.1;
(II) Bandhua Mukti Morcha vs. Union of India & Ors.;2
(III) Consumer Education & Research Centre & Ors. vs. Union
of India & Ors.3
(IV) Forum, Prevention of Environmental & Sound Pollution vs.
Union of India & Anr;4 and
(V) Nandini Sundar & Ors. vs. State of Chhattisgarh5
5] We have duly considered Ms Karnik's submissions. However,
we find ourselves unable to agree with the same.
6] The Statement of Objects and Reasons to the said Act makes it
clear that though, at the time of enactment of the said Act, there were
certain enactments like the Motor Vehicles Act, 1939 and the
Factories Act, 1948 which cover certain sections of the motor transport
workers and certain aspects of their conditions of employment, the
legislature felt the need of having an independent legislation applicable
to motor transport workers as a whole or for regulating the various
aspects of their conditions of employment work and wages. The
legislature considered it desirable to have separate legislative
measure for motor transport workers which would cover matters like
the medical facilities, welfare facilities, hours of work, spread over,
1 (1986) 2 SCC 249
2 (1984) 3 SCC 161
3 (1995) 3 SCC 42
4 (2005) 5 SCC 733
5 (2011) 7 SCC 547
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rest periods, overtime, annual leave with pay etc. on the analogy of
similar enactments for workers in factories, mines and plantations.
With this object, the said Act came to be enacted by the Parliament.
7] The said Act applies to every motor transport undertaking
employing 5 or more motor transport workers. The State Government
is empowered to apply all or any of the provisions of the said Act to
motor transport undertaking employing less than 5 motor transport
workers. The said Act makes provision for registration of motor
transport undertakings, appointment of inspecting staff, welfare and
health of motor transport workers, hours and limitation of employment
of motor transport workers, prohibits employment of young persons,
makes provisions for wages and leave and finally provides for penalty
and procedure for imposition of the same. This is, therefore, quite
comprehensive legislation dealing with various aspects regulating the
conditions of employment, work and wages of motor transport workers.
The term 'motor transport worker' has been defined in section 2(h) of
the said Act.
8] Chapter V of the said Act regulates hours and limitation of
employment of motor workers. This comprises Sections 13 to 20,
which read thus:
"13. Hours of work for adult motor transport workers--
No adult motor transport worker shall be required or allowed
to work for more than eight hours in any day and forty-eight
hours in any week:
Provided that where any such motor transport worker
is engaged in the running of any motor transport service on
such long distance routes, or on such festive and other oc-
casions as may be notified in the prescribed manner by the
prescribed authority, the employer may, with the approval of
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such authority, require or allow such motor transport worker
to work for more than eight hours in any day or forty-eight
hours in any week but in no case for more than ten hours in
a day and fifty-four in hours in a week, as the case may be :
Provided further that in the case of a breakdown
or dislocation of a motor transport service or interrup-
tion of traffic or act of God, the employer may, subject
to such conditions and limitations as may be pre-
scribed, require or allow any such motor transport
worker to work for more than eight hours in any day or
more than forty-eight hours in any week.
14. Hours of work for adolescents employed as motor
transport workers.--No adolescent shall be employed or re-
quired to work as a motor transport worker in any motor
transport undertaking--
(a) for more than six hours a day including rest
interval of half-an-hour;
(b) between the hours of 10 P.M. and 6 A.M.
15. Daily intervals for rest.--(1) The hours of work in
relation to adult motor transport workers on each day shall
be so fixed that no period of work shall exceed five hours
and that no such motor transport worker shall work for more
than five hours before he has had on interval for rest for at
least half-an-hour;
Provided that the provisions of this sub-section in so
far as they relate to interval for rest shall not apply to a
motor transport worker who is not required to work for more
than six hours on that day.
(2) The hours of work on each day shall be so fixed
that a motor transport worker is, except in any case referred
to in the second provision to section 13, allowed a period of
rest of at least nine consecutive hours between the
termination of duty on any one day and the commencement
of duty on the next following day.
16. Spread-over.--(1) The hours of work of an adult
motor transport worker shall, except in any case
referred to in the second provision to section 13 be so
arranged that inclusive of interval for rest under section
15, they shall not spread-over more than twelve hours
in any day.
(2) The hours of work of an adolescent motor
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transport worker shall be so arranged that inclusive of
interval for rest under section 14, they shall not spread-over
more than nine hours in any day.
17. Split duty.--Subject to the other provisions contained
in this Act, the hours of work of a motor transport worker
shall not be split into more than two spells on any day.
18. Notice of hours of work.--(1) There shall be displayed
and correctly maintained by every employer a notice of
hours of work in such form and manner as may be
prescribed showing clearly for every day the hours during
which motor transport workers may be required to work.
(2) Subject to the other provisions contained in this
Act, no such motor transport worker shall be required or
allowed to work otherwise than in accordance with the
notice of hours of work so displayed.
19. Weekly rest.--(1) The State Government may, by
notification in the Official Gazette, make rules providing for a
day of rest in every period of seven days, which shall be
allowed to all motor transport workers.
(2) Notwithstanding anything contained in sub-section
(1), an employer may, in order to prevent any dislocation of
a motor transport service, require a motor transport worker
to work on any day of rest which is not a holiday so,
however, that the motor transport worker does not work for
more than ten days consecutively without a holiday for a
whole day intervening.
(3) Nothing contained in sub-section (1) shall apply
to any motor transport worker whose total period of
employment including any day spent on leave is less than
six day.
20. Compensatory day of rest. -- Where, as a result of
any exemption granted to an employer under the provisions
of this Act from the operation of section 19, a motor
transport worker is deprived of any of the days of rest to
which he is entitled under that section, the motor transport
worker shall be allowed within the month in which the days
of rest are due to him or within two months immediately
following that month, compensatory days of rest of equal
number to the days of rest so lost."
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9] Section 13 of the Act provides the general rule that no adult
motor transport worker shall be required or allowed to work for more
than 8 hours in any day and 48 hours in any week. The first proviso to
section 13 however, makes exception where motors transport worker
is engaged in the running of any motor transport service on long
distance routes, or on such festive and other occasions as may be
notified. The second proviso to section 13, which is impugned in the
present petition, provides that in case of a breakdown or dislocation of
a motor transport service or interruption of traffic or act of God, the
employer may, subject to such conditions and limitations as may be
prescribed, require or allow any such motor transport workers to work
for more than 8 hours in any day or more than 48 hours in any week.
10] Section 15(1) of the said Act provides that the hours of work in
relation to adult motor transport workers on each day shall be so fixed
that no period of work shall exceed 5 hours and that no such motor
transport worker shall work for more than 5 hours before he has had
on interval for rest for at least half an hour, the proviso makes
inapplicable this sub section in so far as they relate to interval for rest
to motor transport worker who is not required to work for more than 6
hours on that day. Sub section (2) of section 15 provides that hours of
work of each day shall be so fixed that the motor transport worker is,
except in any case referred to in the second proviso to section 13,
allowed a period of rest of at least none consecutive hours between
the termination of duty on any one day and the commencement of duty
on the next following day.
11] Finally, section 16 (1) of the said Act provides that the hours of
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work of an adult motor transport worker shall, except in any case
referred to in the second proviso to section 13 be so arranged that
inclusive of interval of rest under section 15, they shall not spread over
more than 12 hours in any day. Section 2(k) of the said Act defines the
expression 'spread over' to mean the period between commencement
of duty of any day and the termination of duty on that day.
12] The scheme and the provisions in Chapter V of the said Act
express a legislative policy, to which, the courts will normally have to
defer, unless, it is established that the statutory provisions exceed the
legislative competence of the legislature or they contravene Part III of
the Constitution of India. Based upon some individual instances of
hardship or inconvenience, it is not possible to declare the provisions
of law as ultra vires or unconstitutional. In the matter of determining
hours and limitation of employment some latitude has to be conceded
to the legislature and the courts cannot insist on mathematical or
accurate classification covering diverse situation and all possible
contingencies in view of the inherent complexities involved in society.6
13] The submission that the second proviso to section 13 of the said
Act completely nullifies the general rule spelt out in section 13 that no
adult motor transport worker shall be required or allowed to work for
more than 8 hours in any day and 48 hours in any week cannot be
accepted. The purpose of a proviso, no doubt, is to make an exception
or to exclude the situation, which would otherwise be covered in the
main enactment. However, that by itself, does not render the proviso
unconstitutional or ultra vires. This is not a case of some wholesale
relaxation without any rhyme or reason. The second proviso applies
6 State of Karnataka vs. Mangalore University Non-Teaching Employees Association (2002) 3 SCC
Ombalika Das vs. Hulisa Shaw (2002) 4 SCC 539
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only in case of a breakdown or dislocation of a motor transport service
or interruption of traffic or act of God. In all such situations, it was
reasonable for the legislature to relieve the employer from the rigours
of the main enactment in section 13 of the said Act. Further, the
second proviso contemplates fixing of conditions and limitations as
may be prescribed. Therefore, this is not some case of unfettered,
unguided or uncanalised discretion vested in the employer, in the
matter of non compliance with the mandate of main enactment in
section 13.
14] There is no material on record to accept the petitioner's
contention that the provisions now impugned are abused or observed
only in breach. In any case, the circumstance that the provisions are
abused or observed only in breach, by itself, is not sufficient reason to
strike down the provisions themselves. Any acts of abuse or breach,
if established, can always be challenged and there is no necessity to
strike down the provisions. Accordingly, we see no constitutional
infirmity in the second proviso to section 13 of the said Act.
15] Section 16(1) only provides that the hours of a work of an adult
motor transport worker shall be so arranged that inclusive of interval
for rest under section 15, they shall not spread over more than 12
hours in any day. Obviously, this situation will not apply to a case
where the second proviso to section 13 of the said Act applies. Again,
we fail to understand as to how such a provision is either arbitrary and
unreasonable or infringes the right to life of the motor transport
workers. It is possible, as contended by Ms Karnik that there are some
practical or logistic difficulties in so far as motor transport workers in
metropolitan areas are concerned. However, that by itself, is not a
ground for declaring the provision as ultra vires qua motor transport
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workers in metropolitan areas but constitutional in so far as motor
workers in other areas are concerned.
16] When a legislative policy is enunciated with sufficient clearness
or a standard is laid down, the courts should not interfere. What
guidance should be given and to what extent and whether guidance
has been given in a particular case at all depends on consideration of
the provisions of the particular Act with which the court has to deal with
including its Preamble. In order to strike down a legislation, the party
has to satisfy that the legislation is totally unreasonable or manifestly
arbitrary. The expression of 'arbitrary' means act done in an
unreasonable manner, capriciously or at pleasure without adequate
determining principle, not founded in the nature of things, non-rational,
not done or acting according to reason or judgment, depending on
the will alone. The law cannot be declared ultra vires on grounds of
hardship but can be done so on the ground of total unreasonableness.
In order to declare an act ultra vires, under Article 14, the court must
be satisfied that there is substantive unreasonableness in the statute.7
17] In Transport and Dock Workers Union & Ors. vs. Mumbai
Port Trust & Anr.8, appellants had filed a petition before the High
Court complaining of violation of Article 14 of the Constitution on the
ground that typist cum computer clerks appointed in Mumbai Port Trust
prior to 1 November 1996 had to work for 6 and ½ hours a day.
Whereas, their counterparts appointed after 1 November 1996 had to
work for 7 and ½ hours per day. This, it was alleged violates Article 14
of the Constitution. The Supreme Court accepted the Port Trust's
explanation that the differential working hours had nexus with the
7 State of Tamil Nadu & Ors. vs. K. Shyam Sunder & Ors. (2011) 8 SCC 737
(2011) 9 SCC 286
8 (2011) 2 SCC 575
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change in situation, change in technology and the desire to bring in
uniformity in working hours of the personnel working with the indoor
establishment and outdoor establishment. The Port Trust explained
that effect in change with regard to existing personnel in the indoor
establishment may involve the Port in litigation and the introduction of
the change may be delayed. Therefore, a decision was taken to
change duty hours of personnel recruited on the indoor establishment
after 1 November 1996 without disturbing the duty hours of the
personnel working at that time in the indoor establishment. The
position of working hours was made clear to the recruits and it is only
upon their accepting this term, that they were given appointment. The
Supreme Court held that Article 14 of the Constitution, does not take
away from the State or from its instrumentality the power of
classification, which to some degree is bound to produce some
inequality. However, mere inequality is not enough to violate Article
14. Differential treatment, per se, does not constitute violation of
Article 14. There is denial of 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 others.
18] The Supreme Court proceeded to add that one of the tests for
determining whether classification or differential is reasonable or not is
whether the same is conducive to the functioning of the modern
society. If it is, then it is certainly reasonable and rational. In modern
world, businesses have to face competition with other businesses. To
do so, they may have to have longer working hours and introduce
efficiency, while avoiding labour disputes. From this perspective, the
classification in question was held to be reasonable. The Supreme
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Court also held that matters like hours of work are normally in the
realm of policy and courts ordinarily do not interfere with policy
decisions. The Supreme Court also held that in view of inherent
complexities involved in modern society some free play must be given
to the executive authorities in this connection.
19] If, free play in joints is to be conceded to the executive, then,
surely, greater latitude has to be extended to the legislature, which has
enacted the impugned provisions based upon the experience gained
by it. There is a presumption of constitutionality which cannot be
overturned by citing some difficulties or some hardship in individual
cases or to some particular class of employees.
20] In case of M/s. Laxmi Khandsari & Ors. vs. State of U.P. &
Ors.9, the Supreme Court refused to strike down the provisions of
Sugar-cane (Control) Order, 1966 by observing that the
reasonableness of restrictions imposed by law in the field of industry,
trade or commerce, cannot be determined by the mere fact that
some of the persons engaged in a particular trade may incur loss due
to imposition of such restrictions. Individual hardship or hardship to
even a particular class is not a ground to declare the provision as
unreasonable or arbitrary and to strike down the same.
21] In the context of hours of work relating to employees of the
Bombay Port Trust, the Supreme Court in the case of Workmen of
the Bombay Port Trust vs. Trustees of the Port of Bombay 10 at
paragraph 12 has observed thus :
9 (1981) 2 SCC 600
10 AIR 1966 SC 1201
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"12. It will be noticed that the arrangement of these
sections is almost the same as the cognate provisions of
the Minimum Wages Act. Here too, the hours of work
cannot be more than 9 in a day and taken with the
intervals for rest these 9 hours may be spread over 10½
hours. The only difference is that a worker must not be
made to work for more than 5 hours at a stretch before he
has had an interval for rest of half an hour at the at least.
There is no provision in the Minimum Wages Act which
breaks up the hours of work by interposing a compulsory
period of rest as is done by the latter part of Section 55 of
the Factories Act. The reason, perhaps, is that in some
employments time for work depends on some extraneous
factors and hours of rest cannot always be fixed to break
up those hours. It is proverbial that time and tide do not
wait for any man. Workers at a tidal dock must work when
the tide is in and take their rest when the tide is out. It is for
this reason that a variable recess is in force at the Prince's
and Victoria Docks and due notice of the interval is given
by specifying a day in advance the hours of rest. We do
not think that the Trustees are guilty of infraction of the
Minimum Wages Act by keeping the recess variable so
long as they specify in advance the recess on any
particular day. It will also be noticed that the scheme of the
Minimum Wages Act compels the inclusion of an hour of
rest in a normal working day. This is achieved by
prescribing that the hours of work in a six-day week shall
not exceed 48, although on any particular day the hours of
work in a day may go up to 9. In this indirect way one hour
of rest is included in a normal working day because the
total number of work hours in a six-day week cannot go
beyond 48. What has not been done by the Act or the
Rules is to specify that the interval for rest shall break up
the hours of work. The Trustees cannot be compelled to
break up the of work by interposing intervals for rest, if
owing to the nature of the work there is difficulty in giving
the intervals for rest in that manner on any particular day.
According to their resolution the recess is fixed as near the
middle of the work as possible, depending on the tides."
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22] In Ramdhandas & Anr. vs. State of Punjab 11, the Supreme
Court, in the context of the provisions fixing hours of work in the
Punjab Shops and Commercial Establishments Act 1958 has made
the following observations in paragraph 8 :
"8. The constitutional objection is that, the impugned
provisions impose unreasonable restrictions on the
fundamental right of the petitioners "to carry on their trade or
business". The regulation of contracts of labour so as to
ameliorate their conditions of work is in reality a problem of
human relationship and social control for the advancement
of the community. The public and social interest in the health
and efficiency of the worker is, at the present day, beyond
challenge. Our Constitution does not protect or guarantee
any fundamental right in the nature of the provision in Article
1, Section 10(1), of the U.S. Constitution against
"impairment of the obligation of contracts". The only test of
constitutional validity therefore is whether the provision in
the impugned law, which is enacted to avoid physical
overstrain of the worker, and so as to afford him better
conditions of work, and more regulated hours, thus ensuring
to him a reasonable amount of leisure --factors which would
render the restrictions in the interest of the general public, is
unreasonable from the point of view of the employer. For
answering this question it would be necessary to ask -- are
the restrictions necessary, or do they go beyond what is
reasonably needed to protect the worker? Judged by this
test, neither the 48-hour week, nor the specification of the
opening and closing hours can be said to have gone beyond
what by modern standards are necessary for ensuring the
health and efficiency of the employee. It might also be
added that the concept of what is necessary to secure the
welfare of labour, or indeed of the elements which determine
its content are neither of them fixed or static, but are
dynamic, being merely the manifestation or index of the
social conscience as it grows and develops from time to
time."
23] The purpose for spread over of not more than 12 hours in any
11 AIR 1961 SC 1559
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day is in fact, intended to benefit the motor transport workers. The
provision is also in public interest, since, the motor transport workers
transport, on most occasions, members of the public and if the motor
transport workers are over-strained, there is possibility of accidents.
Situations like breakdown, dislocation of motor transport service,
interruption of traffic or act of God are generally, not matters of routine.
In such a situation, if the rigours otherwise imposed by the legislation
are marginally relaxed, it cannot be said that such statutory relaxation
is unreasonable or arbitrary or that it results in denial of right to life as
guaranteed by Article 21 of the Constitution of India. As noted earlier,
these are matters of legislative policy and unless, manifest
unreasonableness or arbitrariness is made out, it is not for the courts
to strike down the law or to declare that such a law will not apply to
metropolitan areas or may continue to apply in other areas only.
24] In Bandhua Mukti Morcha (supra), the Supreme Court has
conceded locus standi to an organization which espouses the cause of
bonded labourers, since, such labourers were not in a position to
institute legal proceedings by themselves. The Supreme Court has
also held that the system of bonded labour is contrary to several
statutes as also the constitutional guarantees. On account of the
impugned provisions, we are not prepared to accept Ms Karnik's
contention that the status of motor transport workers has been
reduced to that of bonded labourers. The decision in Bandhua Mukti
Morcha (supra) is therefore, of no assistance to the petitioner.
25] In Consumer Education & Research Centre (supra), Forum,
Prevention of Environmental & Sound Pollution (supra) and Nandini
Sundar (supra), the Supreme Court has expounded the various facets
of Article 21 of the Constitution of India. The Supreme Court has held
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that Article 21 of the Constitution of India does not guarantee mere
animal existence or continued drudgery through life but has a much
wider meaning which includes right to livelihood, better standard of
living, hygienic conditions in the workplace and leisure. The right to
health of a worker is an integral facet of meaningful right to life, to
have not only a meaningful existence but also robust health and vigour
without which the worker would lead a life of misery. Compelling
economic necessity to work in an industry exposed to health hazards
due to indigence to bread-winning for himself and his dependants,
should not be at the cost of the health and vigour of the workman.
26]
The dynamic interpretation of right to life under Article 21 of the
Constitution of India is no doubt, here to stay. However, we are not
convinced that the impugned provisions, in any manner, denude the
motor transport workers of such right to life, as interpreted by the
Supreme Court in the decisions cited. The provisions of Chapter V of
the said Act which comprises section 13 to 20 have to be construed in
their entirety. Thus construed, there is no case of arbitrariness or
unreasonableness made out. So also, it cannot be said that the
impugned provisions denude the motor transport workers of rights as
guaranteed by Article 21 of the Constitution of India.
27] Atam Prakash (supra) is cited for the observations at paragraph
5 that when constitutional validity of a statute is considered, the court
must look to the Preamble as the guiding light and to the Directive
Principles of State Policy as the Book of Interpretation. The implication
of the word 'socialist' into the Preamble of the Constitution is to
clearly set up a 'vibrant throbbing socialist welfare society' in place of a
'feudal exploited society'. The court must drive to such an
interpretation as would promote the march and progress towards a
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socialistic democratic state. The classification which is not in tune with
the Constitution is per se unreasonable and cannot be permitted. In
this case, as we have found the impugned provisions are neither
unreasonable nor out of tune with the constitutional provisions, the
decision cited therefore, does not assist the petitioners.
28] For the aforesaid reasons, we dismiss this petition. There shall
however be no order as to costs.
ig CHIEF JUSTICE
(M. S. SONAK, J.)
chandka
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