P. Sam Koshy, J
1. The challenge in the present writ petition is to the order dated 5.5.2018 (Annexure P-1) whereby the claim for regularization of the petitioner has
been rejected by the respondents.
2. The rejection was on the ground that the petitioner do not fulfill the requirements under the circular dated 5.3.2008 and moreover the said benefit
was extended as a one time measure for those persons eligible when the circular was published.
3. Learned counsel for the petitioner submits that so far as the service of the petitioner is concerned, there is an order in his favour by the Labour
Court, Rajnandgaon, dated 2.12.2010, wherein it has been categorically held that the petitioner was working as Chowkidar from the year 1998 to 2003
when he was abruptly discontinued. The discontinuance was subjected to challenge before the Labour Court and the Labour Court vide its award
dated 2.12.2010 held that the discontinuance is bad in law and thus ordered for reinstatement of the petitioner in service on his previous post. Pursuant
to the award dated 2.12.2010, the petitioner has been reinstated in service on 2.2.2011 and since then he is in continuous employment.
4. According to the counsel for the petitioner the said award of the Labour Court has not been challenged before any other forum and as such the
award has become final. Counsel for the petitioner further submits that in the light of the judgment of a Division Bench of this High Court in the case
of Tukaram Vs. State of Chhattisgarh (WPS No. 1703/2015 and other analogous writ petitions, decided on 16.05.2017), the petitioner has to be given
the advantage of counting his service from the date of his initial appointment till date and the entire intervening period has to be treated as continuous
service and thereby the case of the petitioner should have been considered, in the light of the circular dated 5.3.2008.
5. The State counsel however opposing the petition submits that the petitioner would not be entitled for any relief as sought and the impugned award
(Annexure P-1) seems to be a factually justified order. He further submits that it is a case where the petitioner has raised a claim before the Labour
Court after about 4 years and therefore that intervening period of 4 years cannot be counted. He refers to the judgment of Tukaram (supra) and
submits that the said judgment would also state, that it is the period during which the petitioner was litigating before the Labour Court that would be
counted for continuity in service, not the period during which he had not raised the industrial dispute.
6. Given the aforesaid facts and the circumstances of the case, it would be relevant at this juncture to refer paragraph 26 of the judgment of Tukaram
(supra). For ready reference, paragraph 26 is being reproduced herein under :-
26. Accordingly, these Writ Petitions are allowed. The question of law discussed earlier to be decided in these petitions is answered in the affirmative
in favour of the petitioners-workers holding that they would not fall in the category of litigious worker and that they would be entitled for continuity of
service for the period they were out of employment while they were litigating before the Labour Court.
7. From the aforesaid observations, it is evidently clear that this Court's decision was clear on this count that it is the litigating period for which the
petitioner would be entitled for the benefits. Facts of the present case when considered from the judgment of the Labour Court, it appears that the
petitioner has worked between 1998 to 2003 when he was removed. The removal has been held illegal by the award passed in the year 2010 and
thereafter the petitioner has been reinstated in service. The dispute was raised by the petitioner for the first time in the year 2007 when the reference
was made to the Labour Court. Between 2003 to 2007, the petitioner had in fact not worked anywhere neither had he challenged his removal before
any forum. Keeping in view the judgment of the Division Bench in the case of Tukaram (supra), it would clearly reflect that the litigating period for
petitioner would be between 2007 to 2010. Thus, it is only from the year 2007 onwards that the petitioner would be deemed to be in continuous
service.
8. In the aforesaid factual backdrop, the total length of service so far as the petitioner is concerned would be between 1998 to 2003 and from 2007 to
till date. As he has since been reinstated in service after the award of the Labour Court, if we take the said two periods that is from 1998 to 2003 and
from 2007 to till date, apparently the petitioner has put in more than 10 years of service and the initial appointment of the petitioner was prior to
31.12.1997 and therefore, the respondent authorities would have to accordingly reconsider the case of the petitioner and pass a fresh order so far as
his claim for regularization is concerned, in accordance with the circular dated 5.3.2008 as also the subsequent circular of the State Government dated
17.6.2008.
9. Keeping in view the circulars dated 5.3.2008 and 17.6.2008, the writ petition is disposed of and the impugned award (Annexure P-1) to that extent
stands set aside/quashed.
10. Let a fresh order be passed by the respondent authorities within a period of 90 days from the date of receipt of copy of this order.
