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2005 DIGILAW 58 (HP)

UNION OF INDIA v. BALBIR SINGH

2005-03-21

K.C.SOOD, LOKESHWAR SINGH PANTA

body2005
JUDGMENT K.C. Sood, J.—This petition under Article 226 of the Constitution arises out of the orders of the Central Administrative Tribunal, Chandigarh dated August 6, 1998. 2. Relevant facts may be noticed: 3. Respondent Balbir Singh was engaged as Casual Labour at Chamba by petitioner S.D.O. (Telegraphs), Chamba with effect from September 1, 1981. He was engaged through the Employment Exchange under the Scheme of the Department dated November 7, 1989. On October 1, 1989, a status of temporary Mazdoor was conferred upon him under the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1989. He worked as such up to February 14, 1992 and abstained thereafter. He reported for duty on March 9, 1994 along with medical certificates for the period of his absence saying that he was seriously sick during this period and remained under medical treatment. Petitioner No. 4 did not permit the respondent to join duties. He filed O.A. (131-HP-1998) with the Chandigarh Bench of the Central Administrative Tribunal. 4. The case of the respondent before the Tribunal was that he fell seriously ill due to some mental disease, was under medical treatment and sent leave applications. After recovery from the disease, he submitted his joining report on March 9,1994 along with the medical certificates, covering the entire period of his absence. He was not permitted to join his duties on the ground that his case was under consideration with the petitioner No. 3 for consideration. 5. It appears, the S.D.O. (Telegraphs) Chamba wrote to the Telecom District Engineer, Dharamshala saying that the respondent was absent from his duties from February 13,1992 to March 8,1994 and this period is required to be "condoned". Keeping in view his seniority, he has to be regularized overlooking the fact that the regularization of the respondent or condonation of the break in service had nothing to do with the joining of duties by the respondent. It is in this back ground that the respondent was not permitted to join his duties by the S.D.O (Telephones). 6. The plea of the petitioners is that no condonation in break of service can be granted under the Policy decision of the Government to a casual labour and as the respondent remained absent without any leave for more than two years, therefore, this period cannot be condoned. 6. The plea of the petitioners is that no condonation in break of service can be granted under the Policy decision of the Government to a casual labour and as the respondent remained absent without any leave for more than two years, therefore, this period cannot be condoned. The Department admits that the respondent submitted his joining report along with the medical certificates from the registered medical practitioners. 7. Learned Tribunal noticed that the Department instead of permitting the respondent to rejoin his duties, started considering whether there is a break in service and whether such break being more than one year could be regularized or not. The Tribunal also noticed that the temporary status was granted to the respondent on October 1, 1989 which gives him certain benefits including wages at the minimum of the pay-scale admissible to Grade-D employees, including dearness allowance, house rent allowance and CCA. Such employee is also entitled to the benefit of increments and leave as provided under the Scheme and such an employee is liable to be regularized after rendering three years of continuous service on attaining temporary status. The Tribunal took note that if temporary status employee commits misconduct and the same is proved, in inquiry, after giving him reasonable opportunity, then his services are liable to be dispensed with. 8. In this background, Tribunal took a view that at worst the absence of the respondent for two years would amount to misconduct and, therefore, inquiry was liable to be held before his services could be dispensed with particularly when his name continued to be reflected in the register of temporary status Mazdoor. 9. We are in agreement with the Tribunal that whether or not the respondent was actually sick or whether he was entitled to any leave or whether there was a break in his service and whether such break can be regularized or not are the questions which have to be decided by the Competent Authority in accordance with the Scheme or the Rules governing temporary status employees and has nothing to do with the joining of the respondent. 10. It is admitted position before us that the petitioners took no action against the respondent for his absence for two years nor sent him any notice. He continued to be on the rolls of temporary Status Mazdoors. 10. It is admitted position before us that the petitioners took no action against the respondent for his absence for two years nor sent him any notice. He continued to be on the rolls of temporary Status Mazdoors. In this view of the matter, the action of the Department in not permitting the respondent to join his duties was wrong and untenable. 11. Mr. Pathak, learned Additional Central Government Standing Counsel very candidly states that the respondent is working as temporary Mazdoor and so far period of his absence is concerned, it may be left open for the competent authorities to decide whether such absence can be condoned and regularized or not. 12. Looking to the facts and circumstances of this case and the statement made by the learned Additional Central Government Standing Counsel, we do not find any reason to interfere with the orders of the Tribunal. The petition is dismissed. The question of regularization of the services of the respondent and whether there is any break in his service, if so, whether such break can be condoned or regularized, is left open to be decided by the Competent Authority under the Scheme or the relevant rules governing the respondent. 13. No costs. Writ petition disposed of.