Vijay Kumar vs State Of Himachal Pradesh And Others

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has challenged order dt. 13.09.2018 (Annexure P-2), passed by learned Himachal Pradesh Administrative Tribunal in OA (M) No. 482 of 2017, titled as Sh. Vijay Kumar vs State of Himachal Pradesh 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 Works Department, Division No. 2, Kullu, in April, 1993, remained absent from duty from 27.10.1993 up to 09.09.1995. Qua this there is no dispute. According to the petitioner, the reason as to why he was absent from service during the aforesaid period was on account of the illness he was suffering from.

Learned Counsel for the petitioner submitted that the petitioner was suffering from serious ailment from27. 10.1993 up to 09.09.1995 and this break in service was liable to be condoned upon his submitting the medical certificate in the year 1995, 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 such long period of absence from duty, cannot be deemed to be the period of continuous service and provisions of Industrial Disputes Act were of no help to the petitioner in the absence of 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 period of almost 22 months cannot be deemed to be period of continuous service.

We concur with the findings returned by the learned Tribunal. The petitioner admittedly remained absent from service from 27.10.1993 up to 09.09.1995. During this period, no intimation was given to the employer that the reason for his absence from duty was his alleged ill health. The medical certificate produced by the petitioner on record is issued by a Private Clinic at Kullu. No contemporary record like 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 erstwhile learned Tribunal. The petitioner had, in fact, during this period of absence, never communicated to the employer that he was unable to perform his duties on account of his 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 two years could not have been ordered to be treated to be as continuous service, as was the prayer of the petitioner, therefore, we do not find any infirmity in the impugned order. One more fact which is weighing with us while upholding the order passed by learned Tribunal is that the Original Application itself was filed by the petitioner belatedly in the year 2017, seeking the reliefs as prayed for before erstwhile learned Tribunal. Accordingly, this writ petition being devoid of any merit is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.