CIVIL WRIT PETITION NO.6311 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 07 ,2011 Punjab State Handling and Transporter's Association, Ludhiana .....Petitioner VERSUS Union of India and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Mansur Ali, Advocate, for the petitioner. **** RANJIT SINGH, J. An Association, named `Punjab State Handling and Transporter's Association' has approached this Court through the present writ petition for quashing of orders dated 1.5.2008 and 10.5.2008 on the ground that the same are illegal and arbitrary. Through these orders, Northern Railways has introduced round the clock working hours at the 8 Goods Shed with effect from 26.4.2008, which has been made subject matter of challenge in the present writ petition by the petitioner-Association. Petitioner-Association is engaged in loading and unloading railways rakes at the Railway Stations falling under the CIVIL WRIT PETITION NO.6311 OF 2011 :{ 2 }: Ambala and Ferozepur Divisions. Earlier loading and unloading time was from 6 A.M to 10 P.M at Ambala Division and 6 A.M to 12 P.M at Ferozepur Division. Transporters are given 10 free hours to load and unload the rakes and thereafter they are liable to pay demurrages. The effect of this was that if the railway rakes reached at night at 11 P.M., in Ferozepur Division, then the clock would start from 11 P.M to 12 P.M and then from 6 A.M onwards. Time between 12 P.M to 6 A.M was a no work time. It is pleaded that there is no labour available at the Railway Station during these unearthly hours. The work at the Railway Station is stated to be during the period from April to October i.e. the paddy and wheat harvesting season. Through the impugned orders, directions have been issued for round the clock working. The petitioner thereafter brought to the notice of the authorities that the said orders were bad as no labour was available during night time and even there would be no infrastructure available at the Railway Station. It is pointed out that on an objection raised by the petitioner- Association, the earlier order passed on similar line was withdrawn. However, the orders have again been repeated without providing infrastructure. The orders, Annexures P-1 and P-2, have again been restored. Reference is made to other parts of the country where such circulars were challenged before different High Courts. Copy of the order passed by Patna High Court is annexed as Annexure P-5 with the petition, whereby the Railways have been restrained from enforcing the said policy of round the clock working in those stations unless a proper assessment as indicated in the order was made and CIVIL WRIT PETITION NO.6311 OF 2011 :{ 3 }: facility provided. Similarly, Kerala High Court has also viewed that unloading at night would be impracticable and have extended the interim order passed in this regard in some cases. Learned counsel for the petitioner has placed heavy reliance on these orders and has challenged the impugned circulars accordingly. The plea primarily raised before Patna High Court was that this change has been introduced by the Railways in order to enrich itself by realising the demurrage charges. After noticing the different stands adopted by the parties, the Court had noticed that to implement the policy at different places, having different problems would have to be noted. It is observed that the Railways authorities have looked at the problems only from their side and have not taken into account the difficulties of the traders. The traders statedly were unable to get labour to unload the wagons at night and were also not in a position to get the trucks in sufficient numbers. What apparently weighted with the Patna High Court was the situation at those particular Railway Stations and also the infrastructure facilities available at said Stations. It is noticed by the Court that goods shed at Laheriassrai and Saharsa do not have adequate covered space to store cement bags, even if these are unloaded from the wagons. The Court in this regard went on to observe that though the policy itself is not wrong, arbitrary or illegal in any manner but its implementation lacks fairness, as is apparent from the fact that discretion was left with the General Manager of various Zonal Railways to implement the policy. The Court found that there was no exercise undertaken for objective satisfaction for CIVIL WRIT PETITION NO.6311 OF 2011 :{ 4 }: implementation of the policy and so had interfered for extending the policy at two stations. No such material has been placed before this Court from which it can be stated that there is any difficult in implementation of the policy. Besides, the counsel for the petitioner was also required to address the Court as to how a policy decision of this nature would be amenable to jurisdiction of a writ Court. The counsel could not make any meaningful submission, except for stating that such policy can not be introduced, unless infrastructure is provided. There is no data placed before this Court to indicate non- availability of transport or labour. Even before the Kerala High Court, it was submitted on behalf of the Railways that there had been no discrimination and that it is for the petitioners to make arrangement, for which they can not make the railways answerable for providing infrastructure. The plea was that the goods can directly be loaded to vehicles from the wagons and, thus, there would hardly be any need for providing covered shelters. The Court, while negating the pleas raised on behalf of the railways, made reference to `Kerala Head load Workers Act,' which is a peculiar kind of legislation seen only in Kerala and nowhere else in India. This Act has placed absolute restriction on the freedom of employers to employ head load workers of their choice. The petitioners therein had no choice in engaging head load workers and could only make a request to the concerned head load local workers Committee for supply of head load workers. Number of head load workers registered for a particular area are also limited by the Committee. Unless the concerned local Committee decided to CIVIL WRIT PETITION NO.6311 OF 2011 :{ 5 }: increase the number of head load workers, the petitioner could not seek allotment of increased number of head load workers. These workers could also not be made to work in violation of the provisions of the Act. It is in these peculiar circumstances that the Kerala High Court expressed a view, which would have no applicability to a situation prevailing in this part of the country. In fact, the Kerala High Court had also observed that ordinarily the Court would not interfere in the policy decision of the administration but had interfered on the ground that it was not free from arbitrariness. That peculiarity arose because of the special Act applicable to the State, which is not the position in the present case. Here a notice can be made to observations made in R. V. Hillingdon L.B.C., ex p Puhlhofer, (1986) 1 All ER 467, where the Court while considering the power of housing authority had made some observations in regard to power of judicial review. Lord Brightman, who spoke for the Court, was at pains to observe by saying “Mylords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act of 1977.” The Court further observed “although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the act or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review.” The remedy of judicial review was described as a discretionary remedy, which should be made use of to monitor the action of the local authorities under the Act save in exceptional CIVIL WRIT PETITION NO.6311 OF 2011 :{ 6 }: cases. It is also observed that the grounds on which the courts will review the exercise of administrative discretion is the abuse of power e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity. In this regard, see Nottinghamshire County Council Vs. Secy. Of State for the Environment, (1986) 1 All ER 199. In L. Chandra Kumar Vs. Union of India, AIR 1997 Supreme Court 1125, the Hon'ble Supreme Court has observed that no doubt under the constitutional power of judicial review of action of the State or its authorities is unfettered but restraint should however be hallmark of judicial review. The Court in W.B.Housing Board and others Vs. Brijendra Prasad Gupta and others, (1997) 6 Supreme Court Cases 207, has held that the Courts normally do not interfere in the policy matter of the State and if, however, the policy so formulated is against the mandate of the Constitution for any statutory provision, it can certainly be tested on the principles of judicial review. As observed by the Hon'ble Supreme Court, when an Act falls within the policy of State, which has been formulated for the benefit of poor and needy, it can not be faulted, the Court should stay its hands and need not examine the details minutely with magnifying glass to find some fault here and there, unless there are allegations of malafides. An over all view is to be taken of the matter and this portent weapon of judicial review can not be used indiscriminately. The parameters, thus, are not made out for any interference in the policy so formulated by the respondents and hence, I am not inclined CIVIL WRIT PETITION NO.6311 OF 2011 :{ 7 }: to invoke extra-ordinary jurisdiction to interfere through the present writ petition. The writ petition is accordingly dismissed in limine. April 07, 2011 (RANJIT SINGH ) khurmi JUDGE