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2017 DIGILAW 381 (TRI)

Raju Das, Son of Sri Narayan Das v. Union of India

2017-09-25

S.TALAPATRA

body2017
JUDGEMENT AND ORDER : Heard Mr. S. Bhattacharji and Mr. P. Maishan, learned counsel appearing for the petitioners as well as Mr. B. Majumder, learned Central Government Counsel appearing for the respondents. 2. All these writ petitions being WP(C) 353 of 2017 [Raju Das vs. Union of India and others], WP(C) 354 of 2017 [Karnajit Choudhury vs. Union of India and others], WP(C) 355 of 2017 [Raju Das vs. Union of India and others], WP(C) 356 of 2017 [Sanjoy Dey vs. Union of India and others], WP(C) 357 of 2017 [Bhulu Dey vs. Union of India and others], WP(C) 358 of 2017 [Pradip Ghosh vs. Union of India and others], WP(C) 359 of 2017 [Sukanta Dey vs. Union of India and others], WP(C) 360 of 2017 [Ranabir Chowhan vs. Union of India and others], WP(C) 361 of 2017 [Samir Chandra Ghosh Ghosh vs. Union of India and others], WP(C) 362 of 2017 [Hiralal Das vs. Union of India and others], WP(C) 386 of 2017 [Basudeb Debnath vs. Union of India and others], WP(C) 415 of 2017 [Sudip Biswas vs. Union of India and others], WP(C) 416 of 2017 [Sabitri Podder vs. Union of India and others], WP(C) 418 of 2017 [Siman Rakshit vs. Union of India and others], WP(C) 419 of 2017 [Haradan Dey vs. Union of India and others], WP(C) 420 of 2017 [Samir Sutradhar vs. Union of India and others], WP(C) 421 of 2017 [Sumit Dhanuk vs. Union of India and others], WP(C) 422 of 2017 [Samir Oriya vs. Union of India and others], WP(C) 423 of 2017 [Raja Biswas vs. Union of India and others], WP(C) 424 of 2017 [Goutam Roy vs. Union of India and others], WP(C) 425 of 2017 [Shibu Das vs. Union of India and others], WP(C) 426 of 2017 [Bimal Sarkar vs. Union of India and others], WP(C) 428 of 2017 [Gopal Karmakar vs. Union of India and others], WP(C) 429 of 2017 [Babul Karmakar vs. Union of India and others] and WP(C) 430 of 2017 [Biswajit Das vs. Union of India and others] are consolidated for disposal by a common order inasmuch as maintainability of all these writ petitions are challenged for inherent lack of jurisdiction of this court. 3. 3. In all these writ petitions, the petitioners have urged this court for quashing the letter dated 20.01.2017 (Annexure G to the writ petition) whereby it has been clearly declared that all the daily wagers beyond the norms shall be disengaged with effect from 01.10.2017. The petitioners are all performing the duties of Multi Tasking Staffs (MTS in short) on casual basis. That apart, the petitioners have urged for writ of mandamus from this court directing the respondents for regularizing their services of in the post of MTS. Further, the petitioners have urged for prohibiting the respondents from disengaging them till regularization in the post of MTS. 4. Mr. B. Majumder, learned CGC has raised the preliminary objection as to the jurisdiction of this court in view of Section 14 of the Administrative Tribunals Act, 1985. Relevant part of the Section 14 of the said Act is as under: “14. Jurisdiction, Powers and Authority of the Central Administrative Tribunal. – (1) Save as otherwise expressly provided in this Act, 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 – (a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a Post connected with defense or in the defense services, being, in either case, a post filed by a civilian”. Mr. Majumder, learned CGC has submitted that recruitment and ‘matters’ concerning recruitment in All India Service or ‘to any civil service of the Union or a civil post under the Union’ are within the jurisdiction of the Central Administrative Tribunal and the jurisdiction of the High Court is excluded. In this regard, Mr. Majumder, learned CGC has relied on a decision of the Apex Court in Union of India vs. Deep Chand Pandey and another reported in AIR 1993 SC 382 where it has been held thus: “6. The present respondents are claiming the right to continue in the employment of the Union of India as before, with additional claim of temporary status and it is, therefore, idle to suggest that such a claim is not covered by the Act. The necessary conclusion, therefore, is, that the remedy of the respondents was before the Tribunal and not the High Court. The necessary conclusion, therefore, is, that the remedy of the respondents was before the Tribunal and not the High Court. We, accordingly hold that the High Court did not have the jurisdiction to entertain the claim of the respondents. Consequently the impugned judgment is set aside, the writ petition before the High Court is dismissed and these appeals are allowed, but without costs”. Mr. Majumder, learned CGC has relied further on the constitutional bench decision in L. Chandra Kumar vs. Union of India and others reported in AIR 1997 SC 1125 where the Apex Court has clearly laid down the jurisdictional arrangement in respect of the Central Administrative Tribunal vis-a-vis the High Court. The Tribunals are like the courts of first instance in respect of areas of law for which they have been constituted. It will not therefore be open for litigants to directly approach the High Court even in cases where the question of vires of statutory legislation except where the legislation which creates the particular Tribunal is challenged by overlooking the jurisdiction of the concerned Tribunal. For reference the relevant part from L. Chandra Kumar(supra) is extracted hereunder: “99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated”. 5. In reply Mr. Maishan and Mr. Bhattacharji, learned counsel for the petitioners have submitted that the writ petitions are for framing a scheme for regularization of the petitioners in the post of MTS in the same manner as directed by the Apex Court in Jaspal and others vs. Union of India and others reported in 2017(1) Scale 156 . The passage that has been relied on reads as under: “There are three areas where we propose to issue directions to the Union government and accordingly do so in the following terms. Firstly, the scheme as proposed provides for the payment of minimum wages at the prevailing ‘Nerrik Rates’. This aspect requires a fresh look so that the porters are paid wages at par at the lowest pay-scale applicable to multi-tasking staff. Further, if there are provisions enabling additional payments to be made (either by way of allowances or otherwise) for work in high altitude areas or in high risk/active field areas, such payments shall be allowed under the scheme. Secondly, the scheme must provide for regular medical facilities including in the case of injury or disability. Thirdly, the amount of compensation in the case of death or permanent disability should also be looked at afresh and suitably enhanced. The present scheme provides for an interim relief of rupees twenty thousand to be sanctioned at the discretion of the local formation commander. A maximum payment of Rupees two lakhs as applicable under the Workmen’s Compensation Act, 1923 is contemplated. The present scheme provides for an interim relief of rupees twenty thousand to be sanctioned at the discretion of the local formation commander. A maximum payment of Rupees two lakhs as applicable under the Workmen’s Compensation Act, 1923 is contemplated. The provision for compensation shall be enhanced to provide for dignified payments in the event of death or disability. Fourthly, a onetime severance grant of rupees fifty thousand is provided in the proposed scheme subject to a minimum service of ten years. This measly payment on severance does not fulfill the mandate of fairness, on the part of the State. We direct that the terminal benefits should be enhanced so as to provide for compensation not less than at a rate computed at fifteen days’ salary for every completed year of service. The Union government shall bear in mind these directions in the course of the finalization of the scheme which shall be done within the next three months”. 6. This court is constrained to observe that the jurisprudential objection in respect of the jurisdiction in the area of law could not be met by the petitioners. There cannot be any doubt that the subject matter of the writ petitions is the recruitment and the matters concerning recruitment to the civil service of the Union of India [the Comptroller and Auditor General of India etc.]. In L. Chandra Kumar (supra), the Apex Court has in unequivocal terms observed that while the jurisdiction cannot be ousted, other courts and tribunals may perform a supplementary role in discharging the powers conferred by Article 226/227 and 32 of the Constitution. The tribunals created under Article 323A and 323B of the Constitution are possessed of the competence to test the constitutional validity of the statutory provision and rules. In Deep Chand Pandey (supra) the Apex Court has observed that since the claim was for continuing in the employment of the Union of India and for declaration of temporary status, the Apex Court observed that High Court did not have the jurisdiction to entertain the writ petitions on the said subject matter. In these cases also having regard to the subject matter i.e. the recruitment or the matters relating to the recruitment to a civil post of the Union, this court does not have jurisdiction to entertain these petitions. 7. In these cases also having regard to the subject matter i.e. the recruitment or the matters relating to the recruitment to a civil post of the Union, this court does not have jurisdiction to entertain these petitions. 7. In view of what has been observed above, all these writ petitions are held as not maintainable as the jurisdiction of the High Court has been excluded by Section 14 of the Administrative Tribunals Act and accordingly the writ petitions are dismissed. 8. As observed, the petitioners have approached the wrong forum. They should have approached the Central Administrative Tribunal. But they have not done so but they may. If in the meanwhile, the petitioners are barred by Section 21 of the Administrative Tribunals Act, 1985, a liberal approach may be adopted by the Tribunal in view of the provision made under Sub-Section 3 of Section 21 of the Administrative Tribunals Act, 1985. 9. The respondents shall not give any effect to the order of disengagement/termination if the petitioners approached the Central Administrative Tribunal within 15 days from today. Interim order, as passed earlier, by this court shall stand vacated after the said fortnight. No order as to costs.