Punjab-Haryana High Court
Harmesh Chand And Others vs State Of Punjab And Others on 7 October, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.20836 of 2014
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.20836 of 2014
Date of decision: 7.10.2014
Harmesh Chand and others
... Petitioner
Versus
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.Mohinder Singh Joshi, Advocate,
for the petitioners.
*****
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
This petition is a facet of lack of work ethic found at the work place in public service in execution of social forestry programmes. The 54 petitioners before this Court are public servants serving in Nurseries and Farms maintained by the Horticulture Department in the State of Punjab, which is their parent department. They serve as either Budders, Head Malis, Motorman Sub-Inspectors or Malis. They are skilled workers whose main function is to propagate fruit plants through the techniques of grafting. They are also required to raise plant material in the Nurseries, Gardens and Farms for the nourishment and growth of flora which they look after, as parents would their progeny. Their working hours till lately were from 9:00 a.m. to 5:00 p.m. This was the position for the last 15 years. The impugned order PARITOSH KUMAR 2014.10.16 14:49 I attest to the accuracy and authenticity of this document CWP No.20836 of 2014 :2: has brought about a change in their daily routine and work timings.
2. It is said that many of them worked over time without any extra wages. They claim that similarly situated employees in the Punjab State Agriculture Marketing Board are required to work from 9:00 a.m. to 5:00 p.m. with lunch break from 1:30 p.m. to 2:00 p.m. in terms of the circular issued by the Board. The Punjab Government in the Department of Personnel and Administrative Reforms (General Establishment) Branch vide notification dated 7th August, 1980 had notified all Saturdays to be observed as holidays in Government offices throughout the State of Punjab till further orders. The notified working hours in the offices/departments of Government henceforth 'shall' be from 9:00 a.m. to 5:00 p.m. with half an hour break.
3. In the past, many of them feeling aggrieved by extra work performed by them and their seniors without payment of overtime wages and for working on Saturdays, had approached the Labour Tribunal, Patiala in an application under Section 33 C (2) of the Industrial Disputes Act, 1947 claiming extra wages for extra duties performed on week days and Saturdays in the Horticulture Department during the period 1st January, 2006 to 31st December, 2008 for which they were legitimately entitled to be paid for the work done on Saturdays. They won their case before the Labour Court which ruled in their favour by its order dated 23rd December, 2011, a copy of which has been placed at Annexure P-6.
The Present Controversy
4. The Financial Commissioner, Development and Principal Secretary to Government of Punjab in the Agriculture Department issued an order dated 19th September, 2014 rationalizing the working schedule of this PARITOSH KUMAR 2014.10.16 14:49 I attest to the accuracy and authenticity of this document CWP No.20836 of 2014 :3: special class of workers in Government Horticulture Nurseries/Farms keeping in view the development of Horticulture in the State and the seasonality of the work of such employees within the frame of a 5 day week. The changed work-time is notified as follows : -
S.No. Season Working Time
1 In Summer (From 1 April to From Morning 7.30 A.M. to
30 September) Afternoon 12.30 P.M.
2 In Winter (From 1 October From Morning 8.30 A.M. to
to 31 March) afternoon 1.00 P.M.
From afternoon 2.00 P.M. to
evening 5.00 P.M.
From afternoon 1.00 P.M. to
2.00 P.M. break
5. There can be no gainsaying that the impugned order is a policy decision of the Government which is not normally expected to be tinkered with by the Court for the asking as the State Government is the best judge of its needs and requirements in nurseries, gardens and farms run by it especially in the overarching goal of progressive development of Horticulture in the State. The policy decision of the kind notified may cause immediate heartburn in changing the biological clock of the petitioners set for the last 15 years but such rights and obligations are neither fundamental nor constitutionally protected rights and obligations. In the service of the State there has to be some spirit of sacrifice involved and uplifting moral and ethical values which workers can only inculcate themselves. Work- timings can always be tailored according to the felt needs of the present day provided they are not unreasonable or inhuman. They are mostly to be seen in the context of fundamental everyday work duties as may be inherent in the running of nurseries, gardens and farms which require very special treatment and care. Tending to plants is a special skill which by its nature PARITOSH KUMAR 2014.10.16 14:49 I attest to the accuracy and authenticity of this document CWP No.20836 of 2014 :4: requires work to be started as early as possible in the morning. In the scorching Indian heat, a 2 hours' break for a Mali in summers may be wholly justified viewed from human rights angle in labour intensive work tending to fragile plants to ensure their survival. Conversely, a shorter break in the winter months may also not be unjustified as the day is shorter. The distinction between the two major seasons appears to have been well thought out even though no specific reasons have been recorded in the order, neither were they required to be, if the decision making process is available on noting file culminating in an order made in the name of the Governor of Punjab. I have no doubt that relevant considerations were kept in mind in making the final decision for which no forensic debate is required. It is well settled that judicial review is not directed against the decision but at the decision making process. Nothing has been pleaded or shown that the decision making process was faulty or that irrelevant considerations have had a play.
6. This Court has not had the benefit of reading Memo No.9991- 10012/B-2(8) dated 29th August, 2012 and Memo No.13094-13113/12-19 dated 24th October, 1980 issued by the Director, Horticulture but they appear to be recommendations of the Head of Department supporting the final decision taken, from where reasons might flow and be read. It was the duty of the petitioners to have placed them on record when such record is readily available through the Right to Information Act, 2005 but recourse was not taken to gather information before filing the petition. There was no pressing urgency not to have taken recourse to such remedy before approaching the Court in writ jurisdiction. When the memos are not relied upon, then court can safely assume that there are good and sufficient PARITOSH KUMAR 2014.10.16 14:49 I attest to the accuracy and authenticity of this document CWP No.20836 of 2014 :5: reasons contained in the recommendations to support the policy decision. This Court has not found the necessity of calling for those recommendations by a fishing inquiry since ex-facie the impugned order does not display any arbitrariness or unfair discrimination. The distinction in work timings has to be seen and measured as amongst two groups or classes who are identically placed in terms of job content and in duties and responsibilities attaching to a similar or an identical post, not hard to find.
7. The petitioners form a special group of skilled workers who tend farms, gardens and nurseries and who do not push paper in offices of the departments of the Government involving public dealing or not. A traditional farmer has always gone to his fields in the wee hours of the morning when arduous work can be carried out more efficiently before the blistering sun burns the skin. If the petitioners complain of working overtime without payment of extra wages, they are then at liberty to approach the State Government in the office of the Financial Commissioner, Development and Department of Agriculture through proper channel for redressal of this part of the grievance, since this Court was called upon only to examine the validity of the order of change in working hours.
8. The manner in which nurseries, gardens and farms are to be run or developed on Government land is the business of the State Government and not the Court while judicially reviewing grievances limited to applying known legal principles measuring arbitrariness and discrimination within the framework of reasonable restrictions as may be placed on employees in the discharge of their duties assigned. Every discrimination will not found a claim for court interference. The discrimination must be unfair, hostile and unreasonable, practiced among equals to an extent interference is PARITOSH KUMAR 2014.10.16 14:49 I attest to the accuracy and authenticity of this document CWP No.20836 of 2014 :6: demanded. People who work in plant nurseries and in public offices are not equal. They form two separate classes which are not homogeneous. Similarly, unequals cannot be treated alike as that would infringe Article 14 of the Constitution. If the petitioners are aggrieved in reaching work places at 7:30 or 8:30 in the morning, as the case may be, they would need to adapt themselves. Man sooner or later does adapt to a new environment for his survival and here presently for the survival of tender flora. I shudder to think that plants can be left without care on weekends but that is not the scope of the petition. The survival of precious plants which the petitioners care for in nurseries is also a very precious life involving a public purpose and the two points of view have to be scaled in a fine balance.
9. I do not think that the writ jurisdiction ought to be invoked in a case of this kind which authority is meant to come in aid of cases of hostile and invidious discrimination such as amongst those who were equally placed in the same nursery or string of nurseries governed by one department of the Government and are being treated unequally and unfairly, then court intervention is possible and must follow. The special type of work performed in farms, gardens and nurseries by themselves is the singular object and the intelligible differentia dividing the two groups of employees separating workers in nurseries from those who perform duties in Government offices. The notification dated 7th April, 1980 issued by the Government of Punjab does not address itself to the petitioners and therefore their reliance on it is misplaced. It does not apply to employees working in farms, gardens and nurseries insofar as working hours are concerned, for them to claim parity with Government offices where people work from 9:00 a.m. to 5:00 p.m. with half an hour break. The needs are PARITOSH KUMAR 2014.10.16 14:49 I attest to the accuracy and authenticity of this document CWP No.20836 of 2014 :7: disparate. The requirements are widely different. This is simply because the notification speaks of 'offices'. A farm or a nursery is not an office stricto sensu where blue-collar and white-collar staff is found working. Though a part of the farm or a nursery may have an adjunct office but that part would be severable from the main activity where the petitioners may be found occasionally but do not work.
10. If a change is brought about in work-timings, it is not justiciable in court, and then the issue is best left to the wisdom of the administrator in charge of affairs as presently viewed. When seen from such perspectives, the impugned order cannot be easily faulted as one which is grossly arbitrary or per se discriminatory in nature. On the other hand, it appears well rooted to the public purpose sought to be achieved by the order in the best interests of development of Horticulture in the State of Punjab, which is predominantly an agrarian State. I have hardly any doubt that the petitioners will acclimatise themselves to the changed timings and be the happier for it. They would require to adjust and reconcile themselves to the fact inter alia; that the writ court could offer no help to them within its constitutional limitations.
11. I find insufficient reason to interfere with the impugned order and would dismiss the petition in limine.
(RAJIV NARAIN RAINA) JUDGE October 7, 2014 Paritosh Kumar PARITOSH KUMAR 2014.10.16 14:49 I attest to the accuracy and authenticity of this document