Writ court cannot adjudicate disputed service breaks requiring evidence; claimant must pursue industrial dispute remedy; 15-year delay, laches, acquiescence bar regularization/seniority relief.

JUDGMENT :

RANJAN SHARMA, J.

1. The petitioner, Nanak Chand, had initially filed Original Application No.3957 of 2016, before the Himachal Pradesh Administrative Tribunal. Upon the abolition of Tribunal, the matter stood transferred to this Court and registered as CWPOA No.8049 of 2019, wherein, the petitioner has sought the following reliefs:-

“(i). That the break in service in each year from 1995 to 2002 be condoned for the purpose of counting the seniority.

(ii). That the applicant be granted seniority for the break period with effect from 1995 to 2002.

(iii). That the applicant be granted seniority with all consequential benefits.”

FACTUAL MATRIX:

2. Grievance of the petitioner is that he was engaged as Beldar in 1995 and he had rendered service ranging from 160 days to 196 days till the year 2001. It is further averred that the petitioner had rendered continuous service with 240 days from 2002 to 2009 onwards as per Mandays Chart [Annexure A-II]. It is averred that though the petitioner stands regularized as Beldar on 04.11.2010 [Annexure A-I] prospectively, but in case the period of break given during the years from 1995 till the year 2001, during which he could not complete 240 days is condoned and counted towards actual service, then the petitioner shall be entitled for regularization/work charge from an earlier date and accordingly, he may be given the rescheduled consequential benefits.

STAND OF RESPONDENT-STATE IN THE REPLY-AFFIDAVIT:

3. Upon issuance of notice, State Authorities-Respondents have filed Reply-Affidavit dated 18.11.2016 of Superintending Engineer, I.P.H. Circle, Dharamshala, stating therein that the claim relating to the year 1995 to 2001 has been agitated by way of instant petition after 15 years, which suffers from delay and laches:

(i). Reply-Affidavit further indicates that even as per the Industrial Disputes Act, 1947 the fact as to whether the claimed assertion that the petitioner was given breaks during 1995 to 2001 as in the Mandays Chart [Annexure A-II] is a matter which cannot be gone into in writ proceedings.

(ii). Reply-Affidavit further indicates that the petitioner was regularized in terms of the policy on 04.11.2010 [Annexure A-I] from a prospective date. It is further averred that once the petitioner had accepted his regularization on 04.11.2010 [Annexure A-1], therefore, the petitioner neither any right nor locus standi to seek condoning the alleged break period by counting and adding same towards actual service rendered from 1995 to 2001. It is further averred that the petitioner having accepted the regularization on the basis of continuous service cannot turn around and seek a different status and that too after about 15 years. Even, the plea of estoppel has been taken in the Reply-Affidavit by the State Authorities. In this background, a prayer is made for dismissal of the writ petition.

NO REBUTTAL-REJOINDER:

4. Petitioner has chosen not to file rejoinder, so as to rebut contentions in the Reply-Affidavit.

5. Heard, Mr. Bhim Raj Sharma, Learned Counsel for the petitioner and Mr. Hemant Kumar Verma, Learned Deputy Advocate General for the Respondents-State.

ANALYSIS:

6. Taking into account the entirety of the facts and circumstances and the material on record, this Court is of the considered view, that prayer made by the petitioner for counting the break period rendered from 1995 to 2001 as in the Mandays Chart [Annexure A-II] towards actual service rendered during this period for reckoning it as 240 days of service an