Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 303 (CAL)

Awadhesh Singh v. UNION OF INDIA

2013-05-17

ARUN MISHRA, DIPANKAR DATTA, JOYMALYA BAGCHI

body2013
Judgment :- Arun Mishra, C.J. 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. In Eastern Railway Contractors Workers’ Union & Anr. vs. Union of India & Ors. 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. In Eastern Railway Contractors Workers’ Union & Anr. vs. Union of India & Ors. (supra), a Division Bench of this Court vide judgment and order dated June 27, 2011 has set aside the order of the Central Administrative Tribunal in which it was held that in the matter of contract labour and their absorption, the Central Administrative Tribunal was not the appropriate forum as the Tribunal was not concerned with adjudication of matters concerning Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereafter the CLRA Act). The Division Bench has set aside the order passed by the Tribunal holding that the Tribunal is having jurisdiction to entertain the application for regularization in Railway service. However, another Division Bench of this Court in Liluah Belur Co-operative Labour Contract and Construction Society Ltd. (supra) vide judgment and order dated July 21, 2011, relying upon the decision of the Hon’ble Supreme Court in Biswa Nath Saha and Ors. Vs. Union of India & Ors. reported in (1998) 5 SCC 304 , has held that the Central Administrative Tribunal has no jurisdiction to entertain the application filed on behalf of the Railway contract labours since the contract labours cannot be considered as employees of the Railway. It was held by the Division Bench that such a writ petition can be directly entertained by this Court and direction was issued to consider the claim regarding absorption of the contract labours, who were the appellants, in the service of the Eastern Railway. The decision in Liluah Belur Co-operative Labour Contract and Construction Society Ltd. (Supra) was rendered on July 21, 2011. However, the earlier decision of this Court rendered by the other Division Bench in Eastern Railway Contractors Workers Union & Anr. (Supra) dated June 27, 2011 was not placed for consideration. Thus, there is a conflict in the decision of the two Division Benches of this Court. 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. (supra). It was further submitted, by placing reliance on the decision in M. Ramchandran Vs. 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. (supra). It was further submitted, by placing reliance on the decision in M. Ramchandran Vs. Govind Ballabh & Ors., reported in (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. 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. 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, reported in (2006) 12 SCC 233 , it was submitted that 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. The question, therefore, that arises for consideration is whether the petitioners can directly file writ petition in this Court without approaching the Industrial Tribunal or the Central Administrative Tribunal, as the case may be, particularly, when relief has been sought for absorption/regularization in the service of the Eastern Railway. Admittedly, the Eastern Railway falls within the purview of the Act of 1985. The provisions contained in the Act of 1985 and the CLRA Act are required to be taken into consideration in order to adjudicate the aforesaid question. The Act of 1985 has been enacted to provide for the adjudication by the Tribunal of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India and for matters connected therewith or incidental thereto. The definition of service matters covered under the ambit of the Act of 1985 as contained in Section 3 (q) reads thus: “3(q) ‘service matters’, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or any or of any State or of any local or other authority within the territory of Indian or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respects – (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever.” The definition of service matter is very wide and the provisions relating to the conditions of service under Section 3(q)(v) of the Act of 1985 covers ‘any other matter whatsoever’. Thus, the expression ‘any other matter whatsoever’ would include absorption or regularization within the ambit of the Act of 1985. Further, when we consider the jurisdiction, power and authority of the Central Administrative Tribunal, contained in Section 14 of the Act of 1985, the Central Administrative Tribunal shall exercise on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts except the Supreme Court in relation to recruitment, and matters concerning recruitment, and pertaining to all service matters concerning such members mentioned in clauses (i) to (iii) of clause (b) of sub-section (1). Under Section 14(1)(c), all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub clauses (ii) or (iii) of clause (b) thereof with the further rider as specified in the aforesaid provision would also be covered by the Tribunal’s jurisdiction. An application can be filed under Section 19 of the Act of 1985 by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. Section 28 of the Act of 1985 is also required to be taken into consideration. An application can be filed under Section 19 of the Act of 1985 by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. Section 28 of the Act of 1985 is also required to be taken into consideration. Section 28 contains the provisions to the effect that on and from the date from which any jurisdiction, powers and authority become exercisable by the Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service, no court except the Supreme Court or any Industrial Tribunal, Labour Court or other authority constituted under the ID Act and or any other corresponding law for the time being in force, shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. Thus, the jurisdiction of the High Court to deal with the matter directly has been ousted. However, in L. Chandra Kumar vs. Union of India & Ors., reported in AIR 1997 SC 1125 , it has been clarified that though such employee can not approach directly to the High Court, the power of superintendence is preserved with the High Court and once adjudication has been made under the Industrial Disputes Act by the Industrial Tribunal, Labour Court or any other authority, High Court will have the supervisory jurisdiction to deal with the matter. The definition of service matter and the provisions contained in Sections 14 and 28 of the Act of 1985 make it amply clear that Industrial Tribunal as well as the Central Administrative Tribunal has jurisdiction to deal such matters. However, the High Court can not directly entertain a writ petition in respect of a dispute that is covered by the Act of 1985 and is related to the affairs of the Eastern Railway. Section 28 of the Act of 1985 does not bar the jurisdiction of the Central Administrative Tribunal. It saves the jurisdiction of the Industrial Tribunal. An employee who claims that he is a workman, therefore, will have a right of election in the matter of choice of forum. Section 28 of the Act of 1985 does not bar the jurisdiction of the Central Administrative Tribunal. It saves the jurisdiction of the Industrial Tribunal. An employee who claims that he is a workman, therefore, will have a right of election in the matter of choice of forum. Particularly, when regularization of service has been claimed, in our opinion, this Court will not have the jurisdiction to entertain such a matter directly and the petition has to be filed either before the Central Administrative Tribunal or the appropriate forum under the ID Act as per choice of the employee/workman. In this context, the substance of the grievance and relief that the party aggrieved seeks are also of some relevance. Assuming that the claim of the contract labours succeed before the Central Administrative Tribunal, an order would necessarily follow directing their regularization/absorption in Railway service. In view of the decision in L. Chandra Kumar (supra), the High Court can be approached after the first round of litigation is initiated before the Central Administrative Tribunal and not directly. Turning our focus to the CLRA Act, we are inclined to take the view on examination of the provisions thereof that it is the forum under the ID Act that ought to be ordinarily approached for the relief that the petitioners claim. Bearing in mind the definition of ‘contract labour’, ‘contractor’, ‘establishment’, ‘principal employer’ and ‘workman’ in the CLRA Act, the forum that is approached for relief of regularization/absorption may have to consider the question as to whether the contractor has been interposed either on the ground of having undertaken to produce a given result for the establishment or for supply of contract labour/workmen for any work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial provisions so as to deprive the workmen of the benefits thereunder. Hon’ble Supreme Court has authoritatively held in number of decisions that where the answer is in the affirmative, the workman will have to be treated as an employee of the principal employer who shall be directed to regularize his service in the establishment subject to eligibility. However, if the answer is in the negative, the workman will be a contract labour. Reference in this connection may be made to the case in Steel Authority of India Ltd. & Ors. Vs. However, if the answer is in the negative, the workman will be a contract labour. Reference in this connection may be made to the case in Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers & Ors., reported in (2001) 7 SCC 1 . Answering the aforesaid question would necessarily involve enquiry into disputed questions of fact, which cannot conveniently be made by the High Court under Article 226 of the Constitution, and it is the Industrial Tribunal/Labour Court that would be the appropriate authority to determine the issue. From whichever angle the problem is viewed, it seems to be inescapable that the contract labours must plead and prove that the contract between the principal employer and the contractor is a mere ruse/camouflage to deprive benefits to them flowing from the beneficial legislations and that they are really the employees of the principal employer. In other words, there is relationship of employer-employee between the principal employer and the workman and declaration ought to be claimed for recognition of such relationship and consequential direction for regularization/absorption. In the absence of such a claim in the pleadings, no relief can at all be granted and the claim is likely to fail. Once such claim is traceable in the pleadings, the contract labours would not be entitled to urge that notwithstanding the fact they are contract labours they are entitled to maintain a writ petition before the Writ Court prior to an adjudication/determination by the Industrial Tribunal or the Central Administrative Tribunal, as the case may be. In Union of India & Ors. Vs. Deep Chand Pandey & Anr., reported in (1992) 4 SCC 432 , question arose as to whether the Central Administrative Tribunal is vested with jurisdiction to entertain and decide the claim of the respondents and consequently the High Court has no jurisdiction to deal with such matter. The respondents were engaged in the Office of the Deputy Chief Engineer (Construction), Central Railway, Gwalior as casual typist on daily basis and their services were wrongly terminated. The Hon’ble Supreme Court laid down that the claim of the casual servants of the Union can be entertained by the Central Administrative Tribunal. The Hon’ble Supreme Court also held that all Courts mentioned in Section 14(1) of the Act of 1985 is comprehensive enough to include the High Court. The Hon’ble Supreme Court laid down that the claim of the casual servants of the Union can be entertained by the Central Administrative Tribunal. The Hon’ble Supreme Court also held that all Courts mentioned in Section 14(1) of the Act of 1985 is comprehensive enough to include the High Court. It was contended by the respondents that they were not holding any civil post and as such, the provisions of the Administrative Tribunal Act were not attracted. It was also argued on behalf of the respondents that after the termination of their services, the relationship of master and servant ceased to exist and they, therefore, are not covered by the Act of 1985 and as such they could approach the High Court. No merit was found in the aforesaid arguments raised by the respondents and the decision of the High Court was set aside and the respondents’ claim that they were serving on casual basis under the Union of India and they were entitled to continue as the servants of the Central Government was held to be self-contradictory and not permissible. The Apex Court has further laid down that the Act of 1985 covers a very wide field and there is nothing to suggest that the provisions dealing with the jurisdiction of the Tribunal should receive a narrow interpretation. The clarification offered by the then Minister of Law who piloted the bill was also taken into consideration. It was held that the conditions of service are of such wide expression that an attempt of enumeration would be really dangerous from the point of view of the employees themselves. As the right to continue in the employment of Union of India was claimed with additional claim on temporary basis, it was held idle to suggest that such a claim was not covered by the Act of 1985 and the High Court was not having jurisdiction to deal with such a matter. In Telecom District Manager & Ors. vs. Keshab Deb, reported in (2008)8 SCC 402 , the Directorate of Telecommunications terminated the services of the respondent working as a casual labour on daily wages since March 11, 1989 because he had misbehaved with his senior officers, misused and damaged the government vehicle and was arrested and convicted to undergo simple imprisonment for 8 day’s and pay a fine of Rs. 30/- for the offence under Section 34(6) of the Police Act. 30/- for the offence under Section 34(6) of the Police Act. Respondent Keshab Deb was appointed as casual labour on daily wages basis and purported to have worked in that capacity from March 11, 1989. He was involved in the aforesaid criminal case and was convicted. He was not allowed to join back his duties. He filed the writ petition in Gauhati High Court. The Gauhati High Court held that he was a workman as defined in Section 2(s) of the ID Act. He was also not holding any civil post nor belonging to any civil service and, therefore, his case does not fall within the jurisdiction of the Central Administrative Tribunal although he served under the Government of India. The respondent raised a contention that his service was terminated without meeting the statutory requirements as contained in Section 25–F of the ID Act and prayed for regularization of his service in terms of the scheme known as Casual Labours (Grant of Temporary Status in Regularization) Scheme. It was submitted on behalf of the Telecom District Manager that having regard to the provisions contained in Section 14 of the Act of 1985, the writ petition was not maintainable. The learned Single Judge of the High Court transferred the petition to the Central Administrative Tribunal, Gauhati Bench relying upon the decision in the case of Union of India & Ors. Vs. Deep Chand Pandey & Anr. (supra). Before the Central Administrative Tribunal, the employer raised the plea that the respondent being a casual employee was not entitled to the benefit of the said scheme. The Central Administrative Tribunal opined that the order of termination passed by the employer was illegal as the termination of the service of the respondent was based upon misconduct. However, reinstatement was not granted and compensation was awarded considering the facts of the case. Being dissatisfied with the order of the Tribunal, a writ petition was filed before the Gauhati High Court and the High Court dismissed the writ application affirming the order of the Central Administrative Tribunal, Gauhati Bench. Thereafter, the matter travelled to the Hon’ble Supreme Court and, inter alia, question was raised that the Central Administrative Tribunal had no jurisdiction to entertain the matter. The only remedy was to file application before the Industrial Court. Thereafter, the matter travelled to the Hon’ble Supreme Court and, inter alia, question was raised that the Central Administrative Tribunal had no jurisdiction to entertain the matter. The only remedy was to file application before the Industrial Court. The Apex Court considered the provisions contained in Section 14 as well as Section 28 of the Act of 1985. It has been laid down that when the employee maintains a writ petition not only on the ground of violation of equality clause enshrined under Article 14 of the Constitution of India but also on the ground of violation of the provisions of the ID Act, he has an option to choose his own forum. Section 28 does not bar the jurisdiction of the Central Administrative Tribunal. It saves the jurisdiction of the Industrial Tribunal. An employee who claims himself to be a workman will have a right of election in the matter of choice of forum. It is, therefore, not correct to contend that the Central Administrative Tribunal had no jurisdiction to pass the impugned judgment. Furthermore, the respondent claimed regularization of his service. Such an application was maintainable. As to whether he would be entitled to such relief or not, however, is a different question. The Apex Court held thus: “18. In a case of the present nature where inter alia an employee maintains a writ petition not only on the ground of violation of equality clause enshrines under Article 14 of the Constitution of India but also on the ground of violation of the provisions of the Industrial Disputes Act, 1947, he has an option to choose his own forum. Section 28 does not bar the jurisdiction of the Central Administrative Tribunal. It saves the jurisdiction of the Industrial Tribunal. An employee who claims himself to be a workman, therefore, will have a right of election in the matter of choice of forum. It is, therefore, not correct to contend that the Central Administrative Tribunal had no jurisdiction to pass the impugned judgment. Furthermore, the respondent claimed regularisation of services. Such an application was maintainable. As to whether he would be entitled to such a relief or not, however, is a different question. 19. A Tribunal indisputably was entitled to exercise its jurisdiction for enforcement of a fundamental right.” The Division Bench in Eastern Railway Contractors Workers Union & Anr. Furthermore, the respondent claimed regularisation of services. Such an application was maintainable. As to whether he would be entitled to such a relief or not, however, is a different question. 19. A Tribunal indisputably was entitled to exercise its jurisdiction for enforcement of a fundamental right.” The Division Bench in Eastern Railway Contractors Workers Union & Anr. (supra) has taken a view which is similar in terms of the decision of the Hon’ble Apex Court in the case of Deep Chand Pandey (supra) and Telecom District Manager (supra) and, in our opinion, the correct view has been taken in the aforesaid decision. The learned Counsel appearing on behalf of the petitioners relied upon the decision in Biswa Nath Saha (supra) in which the Apex Court has observed thus: “The Central Administrative Tribunal has correctly held that it has no jurisdiction to entertain the application filed on behalf of a Railway contractor’s labour since the contractor’s labour cannot be considered as employed by the railways.” It is important to note in this context the decision of the Supreme Court in Union of Inida & ors. vs. Subir Mukharji & ors., reported in (1998) 5 SCC 301 . Paragraph 8 of the decision being relevant, is quoted below: “8. We have gone through this judgment and it appears to us that in the case of Biswa Nath Saha the contract labourers were requisitioned intermittently by the authority of the Eastern Railway as and when there was work and on such requisition the labour contractor used to supply the labourers. Moreover the said order appears to be a consent order as is clear from the following observation: ‘... since the contractor's labour cannot be considered as employed by the Railways. The Eastern Railway however, in the affidavit filed on its behalf by Shri B. Maji, Chief Mechanical Engineer (Planning), Eastern Railway, Calcutta dated 13th April, 1993 has offered, on humanitarian grounds, that the contractor's labourers can form their cooperative societies and participate in handling and other contracts issued by the Railways from time to time. The appellants/petitioners state that they will accept the scheme. The appellants/petitioners state that they will accept the scheme. It is directed accordingly.’ It is in these circumstances this Court held that the CAT has no jurisdiction to entertain the application filed on behalf of the railway contractor's labourers.” In view of the observation that the order in Biswa Nath Saha (supra) is a consent order and that the Central Administrative Tribunal had no jurisdiction to entertain the application filed on behalf of the railway contractor’s labourers in the circumstances quoted therein, the decision in Biswa Nath Saha (supra) cannot be treated as a precedent that is binding under Article 141 of the Constitution. The Division Bench in Liluah Belur Co-operative Labour Contract and Construction Society Ltd. (supra) did not have the occasion to consider the observations in Subir Mukharji (supra) and, therefore, fell in error in treating Biswa Nath Saha (supra) to be an authority for the proposition that arose for consideration. Moreover, the decision of the Hon’ble Supreme Court in Deep Chand Pandey & Anr. (supra) was not taken into consideration. The other decision of the Hon’ble Supreme Court in Telecom District Manager & Ors. (Supra), in which it has been held that the relief for regularization in services claimed in an application before the Tribunal is maintainable being covered within the purview of the Act of 1985, was also not considered. Thus, we are inclined to follow the decision of the Hon’ble Supreme Court in Deep Chand Pandey & Anr. (supra) and Telecom District Manager & Ors. (supra). The decision of the Hon’ble Supreme Court in the case of Regional Manager Vs. Pawan Kumar Dubey, reported in A.I.R. 1976 SC 1766, has been relied upon in order to contend that the rule deducible from the application of law to the facts and circumstances of a case constitutes its ratio decidendi and not some conclusion based upon facts, which may appear to be similar, and that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. There could be no dispute with regard to such proposition but in view of the elaborate decisions of the Hon’ble Apex Court in Telecom District Manager (supra) and Deep Chand Pandey (supra), we are inclined to follow the same. There could be no dispute with regard to such proposition but in view of the elaborate decisions of the Hon’ble Apex Court in Telecom District Manager (supra) and Deep Chand Pandey (supra), we are inclined to follow the same. Reliance has also been placed on the decision of the Hon’ble Supreme Court in the case of Phool Badan Tiwari & Ors. Vs. Union of India & Ors., reported in (2003) 9 SCC 304 . Before the Hon’ble Supreme Court, the appellants claimed that they were the employees of the Northern Railway and working as Supervisors in the Handicraft Section Centres. The appellant Phool Badan Tiwari had filed an O.A. She was aggrieved by the notice dated December 17, 1991 by which applications had been invited for filling up the post of Supervisor in the Handicraft Centre of Ghaziabad. It was her case that she had already been appointed pursuant to the selection held on July 1, 1989, and no fresh appointment could be made for the same post. Another O.A. was filed by the appellants and one more person seeking the reliefs that their services be regularized with all consequential benefits and to declare them as railway servants. After consideration, the Apex Court came to the conclusion that the appellants were not at all employees of the Railway and as such, the Central Administrative Tribunal had no jurisdiction. The Apex Court disposed of the case on merits taking into consideration all the materials placed before it that the appellants were not employees of the Railway and they were not appointed by the Railway authorities. They were not full time regular employees of the Railway. They worked on part-time basis. Thus, the Apex Court held that it was not possible to hold by virtue of such appointment that the appellants were regular employees and concluded that the Tribunal had no jurisdiction to entertain their applications. However, in order to adjudicate the aforesaid fact, the Tribunal had the jurisdiction to entertain and once it comes to the conclusion that they were not the servants as contemplated, and are not entitled to relief, the case can be dismissed. Question did not come up for consideration before Their Lordships in the Hon’ble Supreme Court that when a prayer for regularization has been made, whether the Administrative Tribunal will have jurisdiction. Question did not come up for consideration before Their Lordships in the Hon’ble Supreme Court that when a prayer for regularization has been made, whether the Administrative Tribunal will have jurisdiction. Argument was not raised before the Hon’ble Supreme Court whether the Central Administrative Tribunal had jurisdiction or not, which aspect has been considered in Telecom District Manager (supra) and Deep Chand Pandey (supra). It is noted that the decision in Deep Chand Pandey (supra) was not placed for consideration before the Hon’ble Supreme Court in Phool Badan Tiwari (supra). Coming to the decision in Liluah Belur Co-operative Labour Contract and Construction Society Ltd. (supra), a learned Judge of this Court had dismissed the writ petition on the ground of maintainability as the matter was within the purview of the Act of 1985. The matter was taken to the Division Bench of this Court which was decided by the judgment and order dated July 21, 2011 without noticing the decision of the Division Bench of this Court in Eastern Railway Contractors Workers Union & Anr. (supra) and also without noticing the decisions of the Hon’ble Supreme Court in Subir Mukharji (supra), Deep Chand Pandey (supra) and Telecom District Manager & Ors. (supra). Thus, for the aforesaid reasons, the decision of the Division Bench of this Court in M.A.T.881 of 2011, decided on July 27, 2011, cannot be said to express the correct view. An application for review was filed which was dismissed by the Division Bench vide order dated February 10, 2012. Special Leave Petitions, being SLP No.CC 14737- 14738 of 2012, were filed before the Hon’ble Supreme Court. However, the matter was not decided on merits and on the basis of consent, an order was passed on September 14, 2012 to consider the case of regularization of all the persons who are before the High Court or implement the direction issued by the High Court giving liberty to the petitioners to decide the case in accordance with law without making reference of any particular judgment of the Hon’ble Supreme Court. As such, the question with respect to the jurisdiction of the High Court and the Central Administrative Tribunal or that of an Industrial Tribunal did not come up for consideration before the Hon’ble Supreme Court in such petitions. As such, the question with respect to the jurisdiction of the High Court and the Central Administrative Tribunal or that of an Industrial Tribunal did not come up for consideration before the Hon’ble Supreme Court in such petitions. It was also submitted before us that this Court has the jurisdiction to issue direction for absorption of contract labour considering the decision of the Hon’ble Supreme Court in AIR India Statutory Corporation & Ors. Vs. United Labour Union & Ors., reported in A.I.R. 1997 SC 645. The decision has since been overruled in National Union Waterfront Workers & Ors. (supra). Despite the same, the decision has been relied upon so as to contend that the High Court can issue direction with respect to regularization of contract labour. Even otherwise, the power of the Central Administrative Tribunal and the aforesaid question involved in the case at hand did not come up for consideration before Their Lordships of the Hon’ble Supreme Court in AIR India Statutory Corporation & Ors. (supra) and hence it does not advance the cause of the petitioners. The learned Counsel appearing on behalf of the respondent has relied upon paragraph 27 of the decision in Steel Authority of India Ltd. (supra), in which it has been laid down thus: “27. The only remedy of the respondents as noticed above, is to approach the Industrial Tribunal for declaring that the contract labour system under which they were employed was a camouflage and, therefore, they were, in fact, direct employees of the Corporation and for consequential reliefs.” Their Lordships examined whether High Court can directly entertain the petition in such case without approaching the Industrial Tribunal. Question did not arise whether the Central Administrative Tribunal has jurisdiction in view of Section 28 and other provisions contained in the Act of 1985. The question before us pertains to the jurisdiction of this Court to entertain the writ petition directly for absorption/regularisation in the service of the railway, affairs of which are squarely covered within the purview of the Act of 1985. Approach at the first instance has not been made to the Industrial Tribunal or the Labour Court under the ID Act or to the Central Administrative Tribunal. An application for regularization/absorption could be filed before the Central Administrative Tribunal. Approach at the first instance has not been made to the Industrial Tribunal or the Labour Court under the ID Act or to the Central Administrative Tribunal. An application for regularization/absorption could be filed before the Central Administrative Tribunal. Under Section 22 of the Act of 1985, the Tribunal is not bound by the procedure laid down in the Code of Civil Procedure, 1908 and shall have the powers as are vested in a Civil Court in respect of matters mentioned in subsection (3) thereof. Rules 91 to 101 contained in Chapter XVI of the Central Administrative Tribunal Rules of Practice, 1993 confers power on the Tribunal in relation to examination of witnesses and issue of commissions etc. Thus, the powers are very wide and the Tribunal in appropriate cases can conduct an enquiry as may be deemed proper by it while adjudicating a dispute before it. However, the Tribunal has to consider provisions contained in Section 20 and whether remedy that is available under the ID Act for a decision by the Industrial Tribunal attracts Section 20 of the Act of 1985. It is a different aspect whether the Central Administrative Tribunal would interfere or not, and may relegate an aggrieved applicant to the other remedy provided in the ID Act if it considers such remedy to be more efficacious. Thus, we are not inclined to accept the submissions raised by the learned Counsel appearing on behalf of the respondents that by virtue of Section 20 of the Act of 1985, the Central Administrative Tribunal has no jurisdiction to entertain an application for regularization/absorption of contract labours. However, both the Tribunals have the jurisdiction to entertain the grievance and once adjudication is made by them, obviously, remedy would lie before the High Court for judicial review thereof. Reliance has also been placed on the decision of the Hon’ble Supreme Court in Sarva Sharamik Sangha Vs. Indian Oil Corporation Ltd. & Ors. reported in A.I.R. 2009 SC 2355 in which it has been laid down when Government can refuse the reference under Section 10 of the ID Act. The Apex Court laid down thus: “13. Reliance has also been placed on the decision of the Hon’ble Supreme Court in Sarva Sharamik Sangha Vs. Indian Oil Corporation Ltd. & Ors. reported in A.I.R. 2009 SC 2355 in which it has been laid down when Government can refuse the reference under Section 10 of the ID Act. The Apex Court laid down thus: “13. Thus it can safely be concluded that a writ of Mandamus would be issued to the appropriate government to reconsider the refusal to make a reference, where (i) the refusal is on irrelevant, irrational or extraneous grounds; (ii) the refusal is a result of the appropriate government examining the merits of the dispute and prejudging/adjudicating/determining the dispute; (iii) the refusal is malafide or dishonest or actuated by malice; (iv) the refusal ignores the material available in the failure report of the Conciliation Officer or is not supported by any reason. 14. This case is squarely covered by the decisions in Ram Avatar Sharma and Telco Convoy Drivers Mazdoor Sangh. The State government has examined the merits of the dispute and has refused to make the reference on the ground that the workers were not the employees of IOC when the very dispute that required reference was whether the workers should be considered as the employees of IOC. 15. In view of the above we allow this appeal and direct the Central Government to reconsider the matter in the light of the observations above and take an appropriate decision on the request for reference of the dispute to the industrial adjudicator. As and when the State Government makes the reference, it is for the Industrial Tribunal to consider the dispute on merits, on the basis of the material placed before it, uninfluenced by the observations of the High Court or this Court.” The aforesaid decision relied on by the learned Counsel for the respondent is of no relevance. The question before us is not pertaining to the ground of refusal and the scope of question which can be gone into by the appropriate government while considering the question as to whether a reference ought to be made or not. In M. Ramchandran (supra), it has been held that appointment/recruitment to any service can be made from different sources i.e. by direct appointment, by promotion or by absorption/transfer. The source of recruitment can either be internal or external. In M. Ramchandran (supra), it has been held that appointment/recruitment to any service can be made from different sources i.e. by direct appointment, by promotion or by absorption/transfer. The source of recruitment can either be internal or external. There cannot be any dispute in regard thereto but the decision does not render assistance for answering the question that this Bench is in seisin of. We are of the opinion that when regularization/absorption and/or reinstatement/continuance is sought in the service of the Eastern Railway, the Central Administrative Tribunal will have the jurisdiction and as per provisions of Section 28 of the Act of 1985, the matter can also be filed before the Industrial Tribunal or the Labour Court, as the case may be. Section 28 does not oust such jurisdiction of the Central Administrative Tribunal, it gives option to the workman to choose the forum. Thus, High Court will have no jurisdiction to adjudicate upon the merits of the case directing absorption/regularization or reinstatement/continuance in service of such employees with respect to the affairs of the controversies as contemplated within the purview of the Act of 1985. The cases have to be filed afresh before the Central Administrative Tribunal or Industrial Tribunal or Labour Court, at the option of the employees. The reference is accordingly answered. Accordingly, these writ petitions are dismissed giving liberty to the petitioners to agitate their claim for regularization/absorption before the appropriate forum, that is, the Central Administrative Tribunal or the forum under the ID Act, 1947, in accordance with law. There will, however, be no order as to costs. Let urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of necessary formalities. Dipankar Datta, J. I entirely agree with the reasoning of My Lord the Chief Justice leading to the conclusions that the writ petitions are not maintainable before the Court of Writ at the first instance and the petitioners must seek their remedy either under the ID Act or the Act of 1985, and further that the decision in Liluah Belur Cooperative Labour Contract and Construction Society Ltd. (supra) does not express the correct view. Joymalya Bagchi, J. I agree.