Kamla Devi vs State Of Himachal Pradesh And Others

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has challenged order dt. 16.11.2017 (Annexure P-2), passed by learned Himachal Pradesh Administrative Tribunal in Original Application No. 433 of 2016, titled as Smt. Kamla Devi vs. State of H.P. and others, in terms whereof the Original Application filed by the petitioner, praying for condonation of break in service stands dismissed.

Having heard learned Counsel for the petitioner as well as learned Advocate General and having gone through the order passed by learned Tribunal as well as the pleadings, we do not find any infirmity with the order passed by learned Tribunal so as to invite any interference therein.

The petitioner who was engaged as a Beldar on daily wage basis in the Irrigation and Public Health Department, Division Kasumpati, on 13.08.1986, remained absent from duty from 03.11.1990 up to 18.05.2000. Qua this there is no dispute. According to the petitioner, the reason as to why she remained absent from service during the aforesaid period was on account of the illness she was suffering from.

Learned Counsel for the petitioner submitted that the petitioner was suffering from serious ailment from 3. 11.1990 up to 18.05.2000 and this break in service was liable to be condoned upon her submitting the medical certificate in the year 2000 which aspect of the matter was not appreciated in the correct perspective by the learned Tribunal and therefore, the present petition deserves to be allowed by setting aside the order passed by erstwhile learned Tribunal.

On the other hand, learned Advocate General while defending the order passed by the learned Tribunal has submitted that the learned Tribunal correctly held that the period of absence of 10 years cannot be deemed to be the period of continuous service and the provisions of the Industrial Disputes Act were of no help to the petitioner, as has been further rightly held by learned Tribunal without production of medical certificates and medical prescription slip.

A perusal of the order passed by the learned Tribunal demonstrates that it dismissed the Original Application by returning the findings that in terms of the provisions of sub-section 2(a) of Section 25-B of the Industrial Disputes Act, the deemed period of continuous service cannot be more than one year where an employee has worked for 240 days in the preceding 12 months and under sub Section (2) (b) of Section 25-B of the Act, deemed period of continuous service cannot be more than 6 months where the workman has worked for 120 days in the preceding 12 months. Learned Tribunal further held that absence of 10 years cannot be deemed to be period of continuous service, when absence period from 03.11.1990 to 18.05.2000, was in one spell, without production of medical certificate. It held that one prescription slip from a private Clinic produced in the year 2008, was of no help to the petitioner.

We concur with the findings returned by the learned Tribunal. The petitioner admittedly remained absent from service from 03.11.1990 to 18.05.2000. During this period, no intimation was given to the employer that the reason for her absence from duty was her alleged ill health. The medical certificate produced by the petitioner which is appended with the reply of the respondents as Annexure P-6, is issued by a Private Clinic from Theog. No contemporary record including prescription slips to, actually prove that the petitioner was suffering from ill health during the relevant period, was produced. No intimation to this effect was sent to the employer during this period by the petitioner. In this background, the provisions of Section 25-B of the Industrial Disputes Act were of no help to the petitioner, as has been rightly held by the erstwhile learned Tribunal. The petitioner had, in fact, during this period of absence, never communicated to the employer that she was unable to perform her duties on account of her ill health. Statutory provisions referred by the learned Tribunal while denying relief to the petitioner, have been correctly interpreted by learned Tribunal and as the long period of absence of almost 10 years could not have been ordered to be treated to be on continuous service, as was the prayer of the petitioner, therefore, we do not find any infirmity in the impugned order. Accordingly, this writ petition being devoid of any merit is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.