The deeming fiction of continuity of service granted by the Labour Court and upheld by the High Court entitled the respondent-plaintiff to be treated in service for all intents and purposes, including for the purpose of regularization.

HARSIMRAN SINGH SETHI J.

1. In the present regular second appeal, the question of law, which arises is whether, an employee, who has been directed to be reinstated in service with continuity of his service, will be deemed to be in service for the period he/she remained out of service for all intents and purposes or not.

2. The undisputed factual position needs to be stated herein so as to appreciate the controversy in correct perspective.

3. The respondent-plaintiff was engaged in service as a Mali in the Municipal Corporation, Hisar on 17.05.1985. As per the allegations, in February, 1993 as the respondent-plaintiff was absent and his services were terminated by the appellant-defendant. In 1994, the respondent-plaintiff availed the remedy under the Industrial Disputes Act by serving a demand notice upon the appellant-defendant challenging the order terminating his services. The Labour Court vide Award dated 08.06.1998, held the order terminating the services of the respondent-plaintiff as bad and directed that the respondent-plaintiff be reinstated in service with continuity but only with the grant of 50% of the back wages. The said Award was challenged by both i.e. appellant-defendant as well as respondent-plaintiff before this Court and ultimately, vide order dated 17.08.2009, both the writ petitions were dismissed and the Award of the Labour Court was upheld.

4. It is a conceded position that as per the Award dated 08.06.1998 of the Labour Court, the respondent-plaintiff was deemed to be in service with continuity from the year 1985 onwards but for the period he remained out of service, he was only to get 50% of the back wages. While allowing the respondent-plaintiff to join in pursuance to the Award, the benefits for which respondent-plaintiff was found entitled, was paid to him as directed by the Award of the Labour Court.

5. The employees, who were in service in the year 1993, were granted the benefit of regularization under the Regularization Policy of the Government of Haryana, qua the employees who had rendered 5 years service as on 31.03.1993 and those employees were held entitled for considering of regularization of their services. The said Policy dated 31.03.1993 was implemented qua the employees, who were in service but as the services of the respondent-plaintiff were terminated prior to the issuance of the said Policy and he was not in service as on 01.04.1993, no benefit of the said instruction was extended to him.

6. After the reinstatement, the respondent-plaintiff claimed the benefit of regularization of his services under the said Policy of the year 1993 on the ground that as per the Award of the Labour Court, benefit of continuity of service has been granted, which benefit has already been upheld by this Court hence, for all intents and purposes, the respondent-plaintiff is to be treated in service starting from the year 1985 and as on 31.03.1993, he had more than 5 years of service, required to be considered for regularization of his services.

7. As the benefit was not being extended, the respondent-plaintiff filed a civil suit on 09.08.2011 claiming regularization of his services on the post of Mali as per the Regularization Policy of the year 1993. The trial court vide judgment and decree dated 24.09.2012 held that the respondent-plaintiff is entitled for consideration of his case for regularization keeping in view the Award of the Labour Court, according to which, he is deemed to be in service with continuity from the year 1985 onwards and he fulfills all the criteria as required under the Regularization Policy dated 31.03.1993. The period for which the respondent-plaintiff did not perform the actual duties, the trial court held that the said period though, will be treated as a duty period but only for the purpose of regularization and no benefit of arrears for the said period would be extended in favour of the respondent-plaintiff.

8. Feeling aggrieved, both the parties filed appeal before the lower appellate