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2007 DIGILAW 78 (HP)

HET RAM v. STATE OF HP

2007-04-03

B.S.CHAUHAN

body2007
JUDGEMENT B.S. Chauhan, Member (A).:- This original application has been preferred by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking a direction to the respondents to treat the absence from duty of the applicant during the year 1992 on medical ground in continuous service and to consider the services of the applicant from initial date of appointment in-continuity for appointment to regularise his services as Beldar on completion of 10 years of service with all consequential benefits. 2. The brief the relevant facts of the case as set out in the origjflal application are that the applicant started working as Beldar in February, 1986 in Public Works Department. The applicant has alleged further that on completion of 10 years of service on daily wage basis his services have neither been regularised nor regular pay scale has been given to him despite the fact that a policy has been framed by the state government on the basis of judgment of Honble Supreme Court in Mool Raj Upadhyas case. The applicant has alleged further that the services of many daily wagers Beldars, who were junior to the applicant have been regularized whereas he has been left out form such regularization. The applicant has not been regularized as he did not work for minimum of 240 days during the year 1992 and his seniority has been disrupted as her remained on leave during the years 1992 on medical grounds. On being taken ill, he got his treatment initially from private practitioners, but when his condition did not improve, he remained under treatment in government hospital and was finally referred to Govt. Hospital Dharampur as he was diagnosed to be suffering from tuberculosis. The applicant was discharged from government hospital on 25.9.1992. The applicant reported for duty thereafter and was allowed to join back as Beldar on 14.12.1992. The medical certificate from government hospital were given to the Assistant Engineer concerned by the applicant. Hospital Dharampur as he was diagnosed to be suffering from tuberculosis. The applicant was discharged from government hospital on 25.9.1992. The applicant reported for duty thereafter and was allowed to join back as Beldar on 14.12.1992. The medical certificate from government hospital were given to the Assistant Engineer concerned by the applicant. The applicant has further submitted that he may be treated in continuous service since 1986 in terms of Section 25-B of the Industrial Disputes Act, which provides that a workman has to be treated in continuous service if he is, for that period in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal or a lock out or a cessation of work which is not due to any fault on the part of the workman. Since the interruption have been on account of his illness and the absence was due to the reasons beyond the control of the applicant, as such the applicant has to be treated in continuous service for the said period. In view of this the applicant has claimed that he may be treated in continuous service from the initial date of his joining i.e. February, 1986 and his case may be considered for regularization in accordance with law on completion of 10 years of service. 3. Reply was filed by the respondent/state in which the claim of the applicant was disputed. While the claim of the applicant that he joined service in February, 1986 is not opposed, but during the year 1992 the applicant is stated to have served only for 114-1/2 days and thereafter since December, 1992 the applicant is continuously on the roll of the department. The month wise, year wise details of working of the mandays of the applicant is annexed as annexure R-1 with the reply. His previous seniority prior to 1992 could not be considered as the department was not aware of his illness. The two medical certificates annexed with the reply for 25 days and for 107 days respectively (Annexure R-III) were received from the applicant, which were not liable to be considered at such a belated state in view of the decision of this Tribunal rendered in OA (D) 258/97. The two medical certificates annexed with the reply for 25 days and for 107 days respectively (Annexure R-III) were received from the applicant, which were not liable to be considered at such a belated state in view of the decision of this Tribunal rendered in OA (D) 258/97. Accordingly the claim of the applicant for regularisation can be considered in a phased manner subject to the availability of post and funds as and when his turn comes after treating that he was served for 114-1/2 days in the year 1992. As a result the applicant has lost his seniority during the year 1992 for not having worked for 240 days in that year. In the above background he did not serve for requisite number of days during this period. In view of this the claim of the applicant has not been considered for regularisation on completion of 10 years of service, according to which his seniority has to be determined from the year 1993 after he joined in December, 1992 on recovery from his illness. 4. Rejoinder has been filed in which the stand taken in the reply was disputed and the claim made in the original application is re-affirmed. 5. I have heard Shri H.K. Paul the learned counsel for the applicant and Shri HKS Thakur, learned Deputy Advocate General for the respondent/state and have gone through the pleadings carefully. 6. The learned counsel for the applicant argued that the applicant who joined initially as Beldar in February, 1986 had been in continuos service since then and as such he has completed requisite number of mandays in each calendar year except during the year 1992. The learned counsel for the applicant pleaded further that he remained absent from duty from 1.5.1992 to 25.5.1992 for 25 days and from 17.7.1992 to 31.10.1992 for 107 days as he remained under treatment for tuberculosis in government hospital. On being declared fit to resume duty he joined back as Beldar on 14.12.1992. The learned counsel for the applicant submitted that in accordance with Section 25-B of the Industrial Disputes Act, 1947 a workman has to be treated in continuous service if his services are interrupted for reasons which are beyond his control. On being declared fit to resume duty he joined back as Beldar on 14.12.1992. The learned counsel for the applicant submitted that in accordance with Section 25-B of the Industrial Disputes Act, 1947 a workman has to be treated in continuous service if his services are interrupted for reasons which are beyond his control. In the, instant case the applicant was suffering from serious ailment (tuberculosis) and as such remained under treatment for the same from 1.5.1992 to 25.5.1992 for 25 days and from 17.7.1992 to 31.10.1992 for 107 days. After recovery from his illness he was allowed to join back on 14.12,1992 and as such the applicant has to be treated in continuos service since February, 1986 as per rules. The learned counsel for applicant contended further that medical certificates regarding his illness have been annexed by the respondent/state in their reply (Annexure R-III). The total medical leave in the above mentioned medical certificates (Annexure R-III) relates to the period from 1.5.1992 to 25.5.1992 for 25 days and from 17.7.1992 to 31.10.1992 for 107 days. After recovery from his illness he was allowed to join back on 14.12.1992 and as such the applicant has to be treated in continuous service since February, 1986 as per rules. The learned counsel for the applicant contended further that medical certificates regarding his illness have been annexed by the respondent/state in their reply (Annexure R-III). The total medical leave in the above mentioned medical certificates (Annexure R-III) relates to the period from 1.5.1992 to 25.5.1992 for 25 days and from 17.7.1992 to 31.10.1992 for 107 days. If this period is added to the mandays served by the applicant during the year 1992 which is 114-1/2 days the total period comes to 246-1/2 days. In view of this the learned counsel for the applicant argued that the applicant has to be treated in continuous service for the purpose of continuity in service in the year 1992. In support of his contention he cited following case law: (i) 1995(5) SLR 352, Anand Kumar Vs. Haryana Urban Development Authority etc. (ii) 2000(5) SLR 757, Ramni (Smt.) Vs. Haryana Urban Development Authority & Anr. (iii) AIR 1961 SC 1567, M/S Jeewan Lal (1929) Ltd., Calcutta, vs. Its Workmen. (iv) (2002) 6 SCC, 552, Lakshmi Precision Screws Ltd. Vs. Ram Bhagat. 7. Haryana Urban Development Authority etc. (ii) 2000(5) SLR 757, Ramni (Smt.) Vs. Haryana Urban Development Authority & Anr. (iii) AIR 1961 SC 1567, M/S Jeewan Lal (1929) Ltd., Calcutta, vs. Its Workmen. (iv) (2002) 6 SCC, 552, Lakshmi Precision Screws Ltd. Vs. Ram Bhagat. 7. The learned Deputy Advocate General opposed the contention of learned counsel for the applicant on the ground that the similar issue has already been adjudicated and decided by this Tribunal in OA(D) 258/97 copy of which is annexed as Annexure R-ll with the reply. He argued further that the medical certificates were not filed by the applicant alongwith this original application and the same have been placed on record by the respondents. It is evidently clear from these certificates that the same were procured and submitted after prolonged delay, whereas the applicant was duty bound to submit the same during his illness or atleast after recovery from illness. It was further pointed out that no intimation was given by him to the concerned authority about his illness. The medical certificates were only produced by him when his case was considered for regularisation. 8. The short controversy in this case relates to the dispute pertaining to the period during which the applicant remained under treatment, during the year 1992. It is not in dispute that the applicant joined as Beldar during the year 1986 and has completed more than 240 days in each calendar year as per mandays chart on record. Similarly it is accepted position that from the year 1993 onwards he continued in service and has also completed the required number of mandays in each calendar year. As per the mandays chart he has served for 114-1/2 days during the year 1992. During this year 1.5.1992 to 25.5.1992 for 25 days and from 17.7.1992 to 31.10.1992 for 107 days the applicant remained out of service on medical grounds. The claim of the applicant is that this absence was on account of illness as he was suffering from tuberculoses. On having been declared fit he joined back on 14.12.1992. The medical certificates are annexed with the reply as annexure R-III. These certificates has been issued by the govt. institution, a although the same have been issued during 1993 and 1995. On having been declared fit he joined back on 14.12.1992. The medical certificates are annexed with the reply as annexure R-III. These certificates has been issued by the govt. institution, a although the same have been issued during 1993 and 1995. It has been mentioned by the applicant in the original application that he had earlier submitted medical certificates in the office of Assistant Engineer concerned on being asked to furnish and again he had submitted these certificates. It is accepted position that the applicant was suffering from tuberculosis as mentioned in these 2 medical certificates and remained under treatment mostly in government institutions. The law cited by the learned counsel for the applicant is quite relevant in which it has been held by the Honble Supreme Court that a workman has to be treated in continuous service if he is, for that period in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal or a lock out or a cessation of work which is not due to any fault on the part of the workman. The interruption in the case in hand occurred due to the reason of illness which was beyond the control of the applicant. Therefore, such period of interruption during 1992 is to be treated for continuous service since February, 1986. In view of this position the applicant will have to be treated having worked for 246-1/2 days during 1992 for the purpose of treating him in continuous service without any financial benefit for the period he had produced medical certificates. In other words the period of illness till the date of his joining i.e. from 1.5.1992 to 25.5.1992 for 25 days and from 17.7.1992 to 31.10.1992 for 107 days be not treated break in service. The contention of learned Deputy Advocate General opposing his claim is not tenable as the case decided by this Tribunal in OA (D) 258/97 is not similar to the facts and circumstances of this case. The application has procured the medical certificates during 1993 and 1995 voluntarily and the same were submitted by him to the concerned authority on his own initiative. This being so the decision rendered in OA (D) 258/97 is not applicable to the case in hand. The application has procured the medical certificates during 1993 and 1995 voluntarily and the same were submitted by him to the concerned authority on his own initiative. This being so the decision rendered in OA (D) 258/97 is not applicable to the case in hand. In view of above discussion the respondents are directed to treat the applicant in continuous service for the period from 1.5.1992 to 25.5.1992 for 25 days and from 17.7.1992 to 31.10.1992 for 107 days and he be deemed to have served for 246-1/2 days during 1992 for the purpose of continuity in service from his initial date of joining i.e. February, 1986. Thereafter respondents are further directed to consider the case of the applicant for grant of work charge status and regularisation in accordance with law and rules. In terms of above this original application is accordingly disposed of with no order as to costs.