D. K. SETH, GORACHAND DE ( 1 ) THE order dated September 26, 2000, passed in T. A. No. 54/aandn/98 by the learned central Administrative Tribunal, Calcutta bench, Circuit at Port Blair, has since been challenged in this writ petition. The point involved in this case is whether the absence of the respondent Rabindra Kr. Singh during the period of November and December 1992 could be treated as continuous service or would constitute a break in service in order to avail of the benefit of the scheme for giving temporary status to casual employees under the circular dated September 10, 1993 which is Annexure "j" to the writ petition. ( 2 ) IN order to appreciate the question involved it would be necessary to refer to the relevant facts in short. The respondent was engaged as a casual labour under the petitioner herein sometime in April, 1992. On account of ailment of his mother the respondent had left for the main land in November 1992. He reported for duty on January 1, 1993 and continued thereafter. A scheme was formulated by the petitioner herein which is contained in annexure 'j" to the writ petition issued on september 10, 1993. Under the said scheme a person who was employed on March 10, 1993 and had rendered one year continuous service in the Central Government Offices, other than those mentioned in the said circular, was made eligible to certain benefit of temporary status as contained therein. On the alleged ground that the respondent's service from April, 1992 had a break in November and December, 1992 therefore, his qualifying service from January 1, 1993 till September 10, 1993 did not entitle him to the benefit of the said circular dated september 10, 1993. This had since been challenged by the respondent on the ground that the absence did not constitute a break in service before the learned Tribunal. ( 3 ) MR. H. R. Bahadur, learned counsel for the respondent had supported the judgment dated September 26, 2000 passed in T. A. No. 54/aandn/98. filed by the respondent rabindra Kr. Singh before the learned Tribunal seeking the above relief to the extent of application of the scheme in his case, since been allowed by the learned Tribunal. In order to support the said judgment and decision of the learned Tribunal Mr. filed by the respondent rabindra Kr. Singh before the learned Tribunal seeking the above relief to the extent of application of the scheme in his case, since been allowed by the learned Tribunal. In order to support the said judgment and decision of the learned Tribunal Mr. Bahadur had pointed out that the respondent was permitted to go to the main land on account of ailment of his mother, for which the petitioner had arranged for a ticket in the ship for his travel to the main land. Therefore, the period of absence was in effect treated as leave by conduct of the petitioner. Thus, the same cannot be treated to be a break in service and, therefore, the decision of the learned Tribunal is wholly justified. ( 4 ) MR. Swaroop, learned counsel for the petitioner on the other hand, contends that the respondent was a casual labour and he was not entitled to any leave. Therefore, the period of absence can never be treated as leave. He then contends that even then, the petitioner had never applied for leave, nor leave was ever sanctioned to him. So far as getting of ticket in ship is concerned he contends that passage in ship is very difficult to get. Different department has certain quota. In view of the necessity of the respondent one such quota is released to favour the respondent to get a passage in the ship. The same does not constitute grant of leave in the facts and circumstances of the case. He had also contended that permission to join given to the respondent on January 1, 1993 also cannot be construed to be an ingredient to satisfy the principle of leave by conduct. On the other hand, it was a new engagement. According to him, the principle of leave by conduct cannot be attracted when a casual labour is not entitled to leave as would be apparent from the materials available before this Court. On these grounds he contends that the decision of the learned tribunal is perverse and cannot be sustained and as such, is liable to be quashed. ( 5 ) WE have heard both the learned counsel at length. From the facts, as disclosed above there are certain admitted positions. Admittedly, the respondent is a casual labour paid on daily basis. He had worked on "no work, no pay" basis. ( 5 ) WE have heard both the learned counsel at length. From the facts, as disclosed above there are certain admitted positions. Admittedly, the respondent is a casual labour paid on daily basis. He had worked on "no work, no pay" basis. Admittedly, such a labour is not entitled to any leave. Admittedly, the respondent Rabindra Kr. Singh had never applied for leave and also no leave was ever sanctioned. Admittedly, the respondent after having been engaged in April, 1992 had left for the main land in November, 1992. Admittedly, he reported for duty on January 1, 1993. On these admitted facts now it is to be considered as to whether the period of November, 1992 and December, 1992 could be treated to be continuation of service of the respondent for the purpose of availability of the benefit of the circular dated September 10, 1993. The said circular dated September 10, 1993 contains that a casual labour in employment on the date of issue of the Office Memo dated September 10, 1993 if had rendered continuous service of at least one year in that event such labour would be entitled to temporary status. ( 6 ) THE period of one year mentioned therein has been explained as 240 days of engagement for all labourers except those who were engaged in an office observing five days week. In such cases 206 days would constitute one year for the said purpose. Before the circular dated September 10, 1993 was issued another circular which was issued on June 7, 1998 was operating in the field. A clarification with regard to the question of the applicability of the circular dated September 10, 1993 was issued by the Department on July 12, 1994 has since been produced in Court which is kept with the record and is also being Annexure R2 at page 40 of the writ petition. In the said clarification a question was raised as to whether casual employees working in administration's offices observing five days week would be entitled to the benefit of 'paid weekly off in terms of the circular dated September 10, 1993, whereby after six days continuous work a casual worker was entitled to one day's paid weekly off. In the said clarification a question was raised as to whether casual employees working in administration's offices observing five days week would be entitled to the benefit of 'paid weekly off in terms of the circular dated September 10, 1993, whereby after six days continuous work a casual worker was entitled to one day's paid weekly off. The said question has since been clarified that the said facility was admissible after six days of continuous work, since the casual workers engaged in offices observing 5 days week would not be entitled to the said benefit. The purported meaning is that they are not completing six days work in a week and therefore, they were not entitled to one day of paid weekly off. Another question was raised for the purpose of assessing leave entitlement in terms of the said circular dated September 10, 1993. It is provided in the said circular that for each ten days of work one day leave would be available to the casual workers after giving temporary status in terms of the said circular dated September 10, 1993. The said question has since been clarified that it has to be reckoned with reference to the actual days of duty performed ignoring the days of weekly off leave and absence; all days of duty will be counted irrespective of intervening spells of absence which do not constitute break in service. ( 7 ) THUS, even in respect of the persons who would be given temporary status under 1993 circular would not be entitled to paid weekly off if he happened to work in an office observing five days week and that no benefit of leave would be available as such casual workers except on the basis of actual days of work. The same position would also be available from 1988 circular sub-paragraph VI and VII of the 1st paragraph. ( 8 ) THUS, unless the rule permits or circular provides, leave would not be admissible to a casual worker who is engaged on day to day basis and is paid on daily wage rate. Leave is a condition of service which is attended to only when it is so provided under the terms of employment. If it is a casual employment on no work no pay basis, in that event there cannot be any question of entitlement to leave. Leave is a condition of service which is attended to only when it is so provided under the terms of employment. If it is a casual employment on no work no pay basis, in that event there cannot be any question of entitlement to leave. An absence therefore, cannot be treated to be leave. ( 9 ) BE that as it may, in the present case neither there was any application for leave nor leave was ever sanctioned to the respondent. At the same time the engagement on January 1, 1993 after the respondent had come back does not constitute the period of absence as leave by conduct. Neither release of a quota for passage in the ship could be treated as a conduct satisfying the principle of leave by conduct. Inasmuch as, in the island it is an admitted position that the passage in ship is over congested. People are kept waiting for booking passages in ship. Since the respondent has been leaving for mainland on account of having received a message of ailment of his mother, out of sympathy the petitioner might have released one of its quota to make available a passage for the respondent in the ship. Such release of quota can never be construed to be a sanction or grant of leave and that too to a casual labour who is not entitled to leave. Thus, the period between November and December, 1992 during which the respondent was absent cannot be treated as leave. ( 10 ) NOW, we may examine as to whether this period constitutes a break in service or not. It is an admitted proposition that the absence is not due to default on the part of the employer or in other words, the same is not an artificial break. If the absence is of short duration, in that event, the same does not constitute a break. In the present case, admittedly, the break is not an artificial one at the behest of the employer. The respondent had left the island on his own volition. The employer had never compelled him to be absent from service. Therefore, this period cannot be construed to be an artificial break. ( 11 ) NOW, let us examine whether this voluntary absence of the petitioner would constitute a break in service. The respondent had left the island on his own volition. The employer had never compelled him to be absent from service. Therefore, this period cannot be construed to be an artificial break. ( 11 ) NOW, let us examine whether this voluntary absence of the petitioner would constitute a break in service. Had it been for a short or temporary period in that event it should have been ignored and could not be construed to be a break in service. It appears that he remained absent during the whole of the month of December, 1992 and the major part of the month of November, 1992. This position having been admitted, such a long period of absence cannot be ignored or construed to be continuation in service when the engagement is on casual basis. The subsequent joining on january 1, 1993 definitely is a fresh engagement. This absence is definitely a break in service in view of Clause VI and Clause VII of paragraph I of the circular dated June 7, 1988, read with the clarification dated July 12, 1994 while clarifying the similar question in respect of applicability or implementation of the circular dated September 10, 1993. ( 12 ) SINCE this period cannot be treated to be continuation in service for the simple reason that during this period the petitioner did not actually work and had remained absent. Therefore, admittedly, this period constitutes a break in service. ( 13 ) THEREFORE in order to attract the application of the circular dated September 10, 1993 in the case of the respondent, 206 days in terms of the said 1993 circular is to be calculated from January 1, 1993 when the respondent was engaged again. Since the respondent had been working in an office observing 5 days week therefore, his case is to be considered on the basis of 206 days in order to calculate one year continuous service. Unless the respondent has completed 206 days calculated from January 1, 1993 till September 10, 1993 the petitioner cannot claim any benefit of 1993 circular. He can claim the benefit thereto only if he had completed 206 days within September 10, 1993 calculated from january 1, 1993. Unless the respondent has completed 206 days calculated from January 1, 1993 till September 10, 1993 the petitioner cannot claim any benefit of 1993 circular. He can claim the benefit thereto only if he had completed 206 days within September 10, 1993 calculated from january 1, 1993. ( 14 ) THEREFORE, the finding of the learned tribunal that the respondent was on leave and that he was in continuous service during the month of November and December, 1992 appears to be wholly perverse and based on no material. It may also be pointed out that during this period the petitioner was not paid any leave allowance or neither he was declared to be on leave without pay which is also one of the factors which supports our view. ( 15 ) IN the circumstances, the order dated september 26, 2000, passed by the learned tribunal, is liable to be quashed and is hereby quashed. Let a writ of certiorari do accordingly issue. ( 16 ) MR. Bahadur, learned counsel for the respondent, however, contended alternatively that even if the respondent is not entitled to the benefit of 1993 circular he is entitled to the benefit of 1988 circular. He further contended that the petitioner has not been given due benefit that had accrued to him under 1998 circular. His case has not been considered on the basis of 206 days. On the other hand, many of his Juniors have been given the benefit of 1988 circular, though they were engaged later on the basis of 240 days work carried on by them in an office observing 6 days week. He had also pointed out to certain other grievance with regard to the entitlement of the respondent under 1998 circular. ( 17 ) IT may be pointed out that this question was not raised before the learned Tribunal nor this point can be raised here in the absence of any materials before this Court. On the other hand, Mr. Swaroop had pointed out, producing copy of the decision of the learned Tribunal in the case of G. Babu v. Union of India, in O. A. No. 12-A (Aandn) of 1990, disposed of on december 21, 1990, that the petitioner herein is maintaining roster for the purpose of giving benefit of 1988 circular in terms of the said decision. Swaroop had pointed out, producing copy of the decision of the learned Tribunal in the case of G. Babu v. Union of India, in O. A. No. 12-A (Aandn) of 1990, disposed of on december 21, 1990, that the petitioner herein is maintaining roster for the purpose of giving benefit of 1988 circular in terms of the said decision. He also points out from the statement in the petition itself and the affidavit-in-opposition filed before learned Tribunal that due benefit accrued in terms of 1988 circular to the respondent would be made available to the respondent in due course as soon as vacancy would be available for his absorption. However, Mr. Bahadur had disputed that the respondent's case is being considered even according to the said roster in terms of the said decision dated December 21, 1990. ( 18 ) BE that as it may, we are not called upon to decide this question in this writ petition. Since this question did not form part of the question that had been gone into by the learned tribunal, we refrain from making any observation with regard thereto. This point is kept open for being agitated in an appropriate proceeding before the appropriate forum, if the respondent is so advised. Neither the decision of the learned Tribunal nor this judgment will stand in the way of the respondent for getting appropriate relief as contended by Mr. Bahadur as may be available to the respondent in terms of 1988 circular having regard to the decision dated December 21, 1990 and the roster maintained by the petitioner. Though Mr. Bahadur had expressed an apprehension that because the respondent had approached the legal forum therefore, some reprieve may be taken against him. But, Mr. Swaroop had clarified the stand of the petitioner that it is not out to take any reprieve against the respondent. On the other hand, the petitioner will be following 1988 circular in the case of the respondent. Therefore the apprehension of Mr. Bahadur is unfounded and not justified. The writ petition is, thus, allowed without any cost. ( 19 ) XEROX certified copy of the order, if applied for, be given on usual undertakings.