AWADHESH SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) These writ petitions have been preferred by the petitioners directly before learned single Judges of this Court seeking orders for their absorption/regularization as Group-D employees in the Eastern Railway. A learned single Judge of this Court by orders dated August 24, 2011 referred three writ petitions [W.P. Nos. 623(W), 7268(W) and 10319(W), all of 2011] to the larger Bench considering the conflict in two different Division Bench decisions of this Court in Eastern Railway Contractors Workers Union & Anr. vs. Union of India & Ors. (W.P.C.T. 90 of 2011) and Liluah Belur Co-Operative Labour Contract & Construction Society Ltd. & Anr. vs. Union of India & Ors. (MAT 881 of 2011). Another learned single Judge noticing the orders dated August 24, 2011 has referred W.P. No. 21119(W) of 2011 for consideration by the larger Bench. This Bench has been constituted to resolve the conflict and for a decision on the preliminary issue as to whether these writ petitions are maintainable before the Court of Writ at the first instance. The facts projected in the writ petitions, relevant for the purpose of proper decision, lie in a narrow compass. Prayer has been made in W.P. No. 21119 (W) of 2011 to approve and absorb the services of the petitioners in vacant group 'D' posts in the Eastern Railway. The plea of discrimination has been raised. It has also been urged that there were various existing vacancies in Group 'D' posts and there was no hindrance for absorption. The case ought to have been considered in terms of the direction issued by the Hon'ble Supreme Court. In W.P. No.7268 (W) of 2011, similar prayer has been made for regularization in Group 'D' posts. The petitioners as regular employees have completed 120 days' work and, therefore, the Railway ought to have absorbed them as regular employees in Group 'D' posts. In W.P. No.623 (W) of 2011 and in W.P.No.10319 (W) of 2011, similar prayers for absorption have been made more or less on similar grounds.

(2.) It was submitted by the learned Counsel appearing on behalf of the petitioners that this Court has jurisdiction to direct absorption of the contract labours relying on the decision in Liluah Belur Co-operative Labour Contract and Construction Society Ltd. . It was further submitted, by placing reliance on the decision in M. Ramchandran Vs. Govind Ballabh & Ors., 1999 8 SCC 592, that absorption is one of the internal sources of recruitment and, therefore, it is the High Court that a contract labourer ought to approach for relief. In the same breath, it has also been submitted that the Central Administrative Tribunal has concurrent jurisdiction in the matter of ordering absorption of contract labours. Provisions contained in Rules 91 to 101 of Chapter XVI of the Central Administrative Rules of Practice, 1993 were referred to in support of the point that the Central Administrative Tribunal has the power for examination of witnesses, issue of commissions etc. like the Industrial Tribunal. Considering the other provisions of the Administrative Tribunals Act, 1985 (hereafter the Act of 1985), fact finding enquiry in the matter of absorption/regularization, which is also a mode of recruitment, can be done by the Central Administrative Tribunal. The workman has choice of forum either to travel to the Central Administrative Tribunal or to the Industrial Tribunal, as the case may be. Reliance has also been placed on certain other decisions of the Hon'ble Supreme Court, which shall be referred to at a later part of this judgment.

(3.) It was submitted by the learned Counsel appearing on behalf of the respondents that contract labour is essentially a matter that falls within the scope of labour legislation. Railway is an industry within the meaning of the Industrial Disputes Act, 1947 (hereafter the ID Act). As provided in Section 20 of the Act of 1985, no application is maintainable before the Tribunal unless alternative remedy is exhausted, more so in view of the provisions contained in the CLR A Act. High Court in writ petition filed directly cannot go into such a question. Relying upon the decision of the Supreme Court in Steel Authority of India Ltd. vs. Union of India, 2006 12 SCC 233, it was submittedthat without exhausting the remedy of the industrial adjudicator, neither the writ petition is maintainable nor the Central Administrative Tribunal can be approached for the purpose of absorption and/or regularization of contract labour.