IMPORTANT POINT
The main legal point established in the judgment is that periods of absence due to incarceration should be considered for seniority and pensionary benefits, and the Industrial Disputes Act, specifically Section 25B, does not apply to cases involving lay-off and retrenchment.

JUDGMENT :

Sandeep Sharma, J.

Instant Letters Patent Appeal lays challenge to judgment dated 6.4.2021, whereby learned Single Judge of this Court, dismissed CWPOA No. 5629 of 2020, having been filed by the appellant/petitioner (in short the “petitioner”), seeking therein direction to the respondents to count the period of incarceration either in police or judicial custody, ending on his acquittal, in FIR No. 207 of 2021, under Section 20 of ND &PS Act, registered at PS Chamba, towards seniority and pensionary benefits.

2. Precisely, the facts necessary for adjudication of the case at hand are that the petitioner was initially engaged as daily wage Beldar in IPH Sub-Division Dhawala, Division Chamba at Guwari Khundel Scheme in the month of August, 1994, and since then, he had been working continuously with 240 days in each calendar year till 1.10.2001, when he was apprehended by the police in connection with FIR No. 207 of 2001, registered under Section 20 of the NDPS Act. Pursuant to registration of aforesaid case, petitioner came to be arrested. After completion of investigation, police presented charge sheet in the competent court of law and ultimately, he was tried in Session Trial No. 47 of 2001. Since prosecution failed to prove the allegation leveled against the petitioner in the FIR detailed herein above, he was acquitted on 30.11.2002. During the course of the trial, petitioner remained disengaged from the service, however, after his acquittal, he was reengaged w.e.f. 11.12.2002 i.e. 11 days after the date of acquittal of the petitioner by the competent court of law.

3. Since respondent did not count the period of absence during which petitioner remained in the police and judicial custody, he was not regularized in December, 2003 on completion of eight years continuous service w.e.f. his initial engagement in August, 1994. To the contrary, respondents considered the engagement of the petitioner w.e.f. 11.12.2002, as fresh engagement and thereafter, after completion of eight years period starting from December, 2002, his services were regularized vide order dated 15.4.2012. Though petitioner claimed before the respondents that he is entitled to be treated on duty for continuity and regularization of his service during the period he remained in police/ judicial custody between 1.10.2001 and 30.11.2002 and the period between acquittal and rejoining i.e. 30.11.2002 to 11.12.2002, but aforesaid prayer of him was not paid any heed, as a result thereof, petitioner was compelled to approach the erstwhile HP State Administrative Tribunal by way of OA No. 7065 of 2018, which subsequently on account of its abolishment came to be transferred to the writ court for adjudication and was re-registered as CWPOA No.5629 of 2020, praying therein for following reliefs:

“1. That the period of absence from duty on account of Police/Judicial Custody w.e.f. 01-10-2001 till the date of joining after the acquittal in FIR No. 207/2001 registered in Police Station Chamba and the period between the date of reengagement and acquittal may be treated as a continuous period of service for qualifying service.

2. That the Respondents be directed to regularize the service of the applicant w.e.f. December, 2002 on completion of service of 8 calendar years as per policy of the government as also forwarded by the Respondents.

3. That all consequential benefits may also be allowed to the applicant. Any other relief this Hon’ble Tribunal deems fit & proper in the facts and circumstances of the case may also be allowed to the applicant in the interest of justice.”

4. Learned Single Judge on the basis of pleadings adduced on record by the respective parties, held the petitioner not entitled to the relief, as detailed herein above, and dismissed the writ petition vide judgment impugned in the instant proceedings.

5. Being aggrieved and dissatisfied with judgment passed by the learned Single Judge, petitioner approached this Court in the instant appeal, praying therein t