IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 5666 of 2008 Decided on: 28.10.2010. Shakaru Ram ….. Petitioner. Versus State of H.P.& others. ....Respondents Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Sharma, Judge. For the petitioner : None. For the respondents : Mr. R.K. Bawa, A.G. with Mr. J.K. Verma, Dy. A.G. for respondents . Justice Kurian Joseph, C.J. (Oral): The petition has been filed with following prayers: “(i) To direct the respondents not to terminate the services of the applicant as a Masson on daily wages basis and further direct the respondents not to ask the applicnat to furnish the affidavit giving his no objection for termination of his services after 89 days as is being demanded by the respondents from the applicant.” 2. In reply, it is stated as follows: “ It is submitted that the applicant has no cause of action to maintain the present original application. Neither the service of applicants has been terminated nor any artificial break is being given nor the applicant has worked for 10 years of continuous service which entitles him for the -2- regularization. The fact of the case are that the applicant was engaged as Beldar in the year 1985 and has worked intermittently since then as Mason and Beldar. It is further submitted that the applicant has not completed 240 days in the years of 1985, 1989, 1990, 1991, 1992, 1993 and only has completed 240 days in the years 1986, 1987, 1988, & 1994 to 1998. therefore, the case of the applicant for regularization can be considered on the completion of 10 years of continuous daily wage service which is effective only w.e.f. January 1995 in which year he has completed 240 days and is continuously working as such. It is wrong on the part of the applicant to allege that the applicant is being given artificial breaks and is being forced to file an affidavit for his termination after 89 days. Since the applicant is continuously working w.e.f. January 1994 and has completed 240 days in every year as such there is no question of terminating the services of the applicant without complying with the provisions of Section 25-F of the Industrial Dispute Act, 1947 for which no affidavit is required if the termination is desired in the exigency of work and funds. The applicant is trying to derive undue benefit by trying to count the period for which he has not completed 240 days in the calendar year to be counted toward his seniority for regularization by way of filing this original, application, otherwise the applicant has no case at all. It is, further submitted that the -3- nature of work of the applicant is to do casual work which is only available in the division at far flung areas and in different sections being IPH Department. The work of mason is generally available at source for where the tanks or other cement work is to be done. Therefore the applicant had been doing work in various sections of sub Divisions. The applicant generally remained absent during the year 1985, 1989 to 1993. The respondent has given no break to the applicant. However, there is no break in his service after 1994. Prior to this the applicant had been a casual worker and remained absence for a sufficient number of days and did not report for duty on his own. No break what so ever has been given by the respondent department. The incumbancy of the applicant working since August 1985 till December, 1998 is annexed as Annexure R/1 for the kind perusal of this Hon'ble Tribunal. In view of the foregoing preliminary submissions the applicant has no cause of action to maintain the present Original application.” 3. In case the petitioner still has any surviving grievance with regard to the factual legal position, it will be open to the petitioner to work out the relief before the appropriate Forum. However, it is made clear that in the event of making such an attempt the same shall not be turned down on the only -4- ground of delay since the petitioner has been prosecuting the grievance before this Court in the writ petition. 4. With these observations, petition stands disposed of, so also the pending application(s), if any. ( Kurian Joseph), Chief Justice. (V.K. Sharma), Judge. October 28, 2010 (LSP/VT)