Bishan Chand vs State of H.P. and Others

Surjit Singh, J.—Petitioner had been engaged as Beldar on daily wages in the year 1989. He had been continuously working with the Respondent as Beldar, on daily wages, till 3.8.1994. On 4.8.1994, a case, u/s 376 Indian Penal Code was registered against the Petitioner and three-four other persons. Petitioner applied for anticipatory bail, which was granted to him on 5.9.1994, per his own case. He claims to have been acquitted in the criminal case in the year 1996.

Petitioner''s case is that when criminal case, u/s 376 Indian Penal Code had been registered against him, his name was removed from the muster-roll and his services were discontinued. Though he has given the date of discontinuation of his service as 4.8.1994, in the notices, copies Annexures R-1 and R-II, which he served upon the Respondents (R-I was served in the year 1994 and R-II in the year 2002), there is no mention of the date of the alleged discontinuation of services of the Petitioner. He was re-engaged, per his own claim in December, 1994 and ever since he has been continuously working with more than 240 days in every calendar year. According to Petitioner, there is shortfall of 17 days, during the year 1994 and this shortfall is alleged to be on account of discontinuation of his services by the Respondents. Alleged discontinuation is said to be illegal, arbitrary and, hence, shortfall of 17 days, according to the Petitioner, is required to be ignored. Petitioner claims confirmation of work-charge status, on completion of 10 years service, to be counted from the year 1990, when he joined as Beldar.

Respondents, in their reply, have stated that when criminal case, u/s 376 Indian Penal Code, was registered against the Petitioner, he stopped attending to his duty as Beldar and, therefore, he was marked absent in the muster-roll. It is also stated that when he served notice, copy Annexure R-I, he was re-engaged in December, 1994. It has been denied that the services of the Petitioner had been discontinued. It is stated that he himself did not attend the duty because of registration of a criminal case against him. It is also stated in the reply that Petitioner has purposely not filed, with his petition, copies of notices, Annexures R-I and R-II, which he served upon the Respondents, because in those notices, there is no allegation of alleged discontinuation of Petitioner''s services, in the month of August, 1995 and instead, as per notice, Annexure R-II, Petitioner was given break in service only from 7.10.1994 to 16.10.1994.

I have heard Learned Counsel for the parties and gone through the record.

Petitioner''s own case is that he had gone to Jallandhar on 3.8.1994, after taking leave from the concerned J.E. and that in his absence a false case, u/s 376 Indian Penal Code had been got registered against him on 4.8.1994. In notice, copy Annexure R-I, he did not mention when did he return from Jallandhar, after availing the alleged leave and when did he go to the office of Respondents to join duty. Also, he made no mention about his having applied for anticipatory bail. This notice was served by him upon the Respondents on 17.10.1994.

He served another notice dated 29.7.2002, copy Annexure R-II, in which it was stated that he had been granted anticipatory bail on 5.9.1994 and was acquitted in August, 1996 by the Sessions Court. In this notice also, he did not say when did he return from Jallandhar, after availing the alleged leave or when did he go to the office of Respondents to join duty. He specifically stated that a break was given in his service from 7.10.1994 to 16.10.1994, arbitrarily and illegally. This specific reference that he was given arbitrary and illegal break from 7.10.1994 to 16.10.1994 and silence about his absence from 3.8.1994 to 6.10.1994 themselves show that he did not report for duty from 3.8.1994 to 6.10.1994. Because of his own wilful absence from duty for the aforesaid period, probably on account of his involvement in criminal case, and his apprehending arrest by the police in that case and because of that apprehension his not going to perform his duty as Beldar, he has not been marked present in the muster-roll from 3.8.1994 onwards till his re-engagement in December, 1994. So, shortfall in requisite number of man-days, during the year 1994, cannot be attributed to the Respondents and, hence, question of discontinuation of his service by Respondents does not arise.

For the foregoing reasons, petition is dismissed.