IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.8145/2008 Decided on:2.6.2009 Beli Ram. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioner : Pt. Om Prakash, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. Advocate General. Rajiv Sharma, J. The petitioner was engaged as daily wage worker in the Forest Department in the month of January, 1994. His precise case is that respondents have started giving fictional breaks to him in the year 2001. According to him, the fictional breaks have been given to deprive him the benefit of regularization. The petitioner, in fact, as per the reply filed by the respondents was engaged in the year 1996 and thereafter he has worked till 2001. He has completed more than 240 days between 1996 to 2000 in each year. He was given break of 16 days in the month of January, 14 days in the month of February, 1 day in the month of March, 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 14 days in the month of April, 1 day in the month of May and 16 days in the month of June, 2001. Pt. Om Prakash, Advocate has strenuously argued that the respondents have deliberately given the fictional breaks to the petitioner to deprive him the status of regular worker. Mr. R.K. Sharma, learned Senior Additional Advocate General on the basis of the reply has argued that the petitioner has not made himself available on few occasions in the year 2001. I have herd the learned counsel for the parties and perused the record carefully. As per the man-days’ chart, the petitioner has rendered continuous service with effect from 1996 and has completed 240 days in each year up to 2000. He has only worked for 190 days in the year 2001. The contention of Mr. R.K. Sharma, learned Senior Additional Advocate General that he himself abstained from the job cannot be accepted. A person, who has been working continuously and has completed 240 days in each year, will never abandon his job as projected by the State. His endeavour is always to complete 240 days to earn him the benefit of regularization. Moreover, the question of abandonment is a question of fact and is liable to be proved like any other fact. The Court is of the firm opinion that the respondents have given fictional/artificial breaks willfully to deprive him the status of regularization. The workman belongs to a lower strata of the society. His rights cannot be permitted to be trampled on the basis of arbitrary and whimsical action/decision. The workman may be appointed on daily wages, but he has absolute right to earn his livelihood within the constitutional framework. It will amount to unfair labour practice, if the respondent-State 3 is permitted to give fictional breaks to the workman. The Court does not approve this practice. This practice has severe civil and evil consequences on the workman, who most of the time is at the mercy of the employer. He is required to complete 240 days in each year to earn him the benefit of regularization. He has been working continuously and has put in 5 years of service with effect from 1996 to 2000. In case the breaks are not condoned in the present case it will cause impediment in his way to seek regularization. The effect of fictional/artificial breaks given to the petitioner in the year 2001 would be that he would be required to wait for another eight to nine years to complete 240 days in each year. The services which he has rendered with effect from 1996 to 2000 would become otiose/nugatory. The action of the respondent-State must be rationale and must conform to Articles 14 and 16 of the Constitution of India. Ours is a welfare State. Accordingly, the action of the respondents of giving the fictional breaks to the petitioner in the year 2001 is declared arbitrary. The breaks given to the petitioner in the months of January, February, March, April, May and June, 2001 are unreasonable and are accordingly condoned. It is declared that the petitioner has completed 240 days for all intents and purposes in the year 2001. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed not to give any artificial breaks to the petitioner in future. In case the petitioner has completed 240 days in each year with effect from 1996 till date, his case for regularization shall also be considered within a period of eight weeks from today. It is clarified by way of abundant precaution that while calculating number of years essential for regularization, the petitioner will be deemed to have 4 completed 240 days in the year 2001. There shall, however, be no order as to costs. 2.6. 2009 (Rajiv Sharma ), J. *awasthi*