HET RAM Vs. STATE OF HP

JUDGEMENT

(1.) 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. 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. 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.