IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2190 of 2008. Reserved on : 24.08.2010. Decided on 30.08.2010. Biri Singh and another. …Petitioner. -Versus- Himachal Pradesh State Electricity Board and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. Onkar Jairath, Advocate with Ms. Kiran Dhiman, Advocate. For respondents No. 1 to 4. : Ms. Anjula Khajuria, Advocate. Respondent No. 5, ex-parte. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner No. 1 was appointed as Electrical Beldar on 3rd March, 1982. Petitioner No. 2 was appointed in the same capacity on 2nd July, 1982. The respondent-Board has issued seniority list on 31st March, 1989. The name of petitioner No. 1 was reflected at Sr. No. 65 in the seniority list and the name of petitioner No. 2 was reflected at Sr. No. 68. Their dates of engagement were shown as 09.07.1985 and 14.07.1985, respectively. Thereafter, another seniority list was issued on 25.05.1990. The names of petitioners No. 1 and 2 were reflected at Sr. Nos. 54 and 57, respectively. Petitioners filed an Original Application bearing O.A. No. 827 of 1992 before the erstwhile learned Himachal Pradesh Administrative Tribunal for assigning 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. them seniority from the dates of their initial engagement, which was ordered to be treated as representation on 2nd July, 1992 by the learned Tribunal. However, the same was rejected on 10.12.1992 by the competent authority. 2. Mr. Onkar Jairath, learned counsel for the petitioner has strenuously argued that the seniority to his clients should be granted from the dates of their initial engagement, i.e., 3rd March, 1982 and 2nd July, 1982. 3. Ms. Anjula Khajuria, learned counsel for the respondent-Board has strenuously argued that there is break of 90 days in the year 1985 and the petitioners have not completed 240 days in this year and, thus, they were rightly assigned seniority w.e.f. 28.06.1985 and 01.07.1985, respectively. She has relied upon Standing Orders, called “HPSEB Industrial Establishment Standing Orders”, notified on 17th July, 1985. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner No. 1 was engaged on 3rd March, 1992. He has worked for 240 days in 1983 and 1984. He has worked for 230 days only in 1985. He has not worked for three months, i.e., April, May and June in 1985. Similarly, petitioner No. 2 was also engaged on 2nd July, 1982. He has completed 240 days in 1983 and 1984. He has worked for 194 days in 1985. He has not worked for three months, i.e, April, May and June in 1985. The case of the respondent-Board, as per the reply, is that the petitioners have abandoned their jobs on 20.02.1985 and 18.02.1985, respectively and they were re-engaged w.e.f. 28.06.1985 and 01.07.1985. However, the respondent-Board has not placed any contemporaneous material on record to prove that the petitioners had abandoned their job. Whether there is voluntary abandonment of service or not, is a question of fact and is required to be proved by leading cogent evidence. 6. Their Lordships of the Hon’ble Supreme Court in G.T. Lad and others versus Chemicals and Fibres India Ltd., AIR 1979 Supreme Court 582 have held as under: “6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham Co. v. Venkatiah (1964) 4 SCR 265: (AIR 1964 SC 1272), it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. Thus whether there has been abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.” 7. Moreover, there could be interruption in service due to sickness, authorized leave, accident, lockout or due to cessation of work, which is not due to any fault on the part of the workman. 8. Ms. Anjula Khajuria, learned counsel for the respondent-Board has also argued on the basis of Clause-11(i) of the HPSEB Industrial Establishment Standing Orders that there was break of more than 90 days. I have gone through the contents of Clause-11(i) at page 114 of the Standing Orders. It only talks of Extra-Ordinary leave without leave. This provision is not at all attracted in the present case. Petitioner No. 1 has been regularized on 12.01.1998 as T-Mate and petitioner No. 2 has also been regularized on the same date as T-Mate. In these circumstances, the delay of 10 days qua petitioner No. 1 and 46 days qua petitioner No. 2 in 1985 ought to have been overlooked/condoned by the respondent-Board. It is apparent that fictional /artificial breaks have been given to the petitioners to deprive them the status of regularization from the due date. There was no occasion for the workmen to abandon their jobs, as pleaded by the respondent-Board. Admittedly, the respondent-Board had not issued any show-cause notice to the petitioners to resume their duties. Even as per Annexure RA-II, there is shortage of few days as far as completion of 240 days in the year 1985 is concerned. Thereafter, the petitioners had worked for more than 240 days in each calendar year up to 1994. 9. Accordingly, in view of the observations made hereinabove, the petition is allowed. The shortage of 10 days qua petitioner No. 1 and 46 days qua petitioner No. 2 in completion of 240 days in 1985 is condoned. The respondents are directed to consider the case of the petitioners as per the law laid down in Mool Raj Upadhyaya versus State of H.P. and others, 1994 Supplement (2) Supreme Court Cases 316 for conferment of work charge status immediately after completion of ten years of service, i.e., 1992 with all consequential benefits. No costs. (Rajiv Sharma) Judge August 30, 2010. (bhupender)