Rajasthan High Court - Jaipur
Manoj Kumar Peepliwal S/O Shri Kanhiya ... vs The Director Atomic Mineral on 28 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 15096/2018
Manoj Kumar Peepliwal S/o Shri Kanhiya Lal, Aged About 32
Years, R/o Plot No. 23, Moji Nagar Colony, Pratap Nagar,
Sanganer, Jaipur
----Petitioner
Versus
The Director Atomic Mineral, Directorate For Exploration And
Research, Department Of Atomic Energy, A.m.d. Complex,
Sector-5, Extn. Pratap Nagar, Sanganer, Jaipur
----Respondent
Connected With S.B. Civil Writ Petition No. 15052/2018 Rakesh Kumar Upadhyay S/o Shri Hari Kishan Sharma, Aged About 37 Years, R/o Sector -82/271 Chetak Marg, Pratap Nagar, Sanganer, Jaipur
----Petitioner Versus The Director, Atomic Mineral, Directorate For Exploration And Research, Department Of Atomic Energy, A.m.d. Complex, Sector - 5, Extn. Pratap Nagar, Sanganer, Jaipur
----Respondent S.B. Civil Writ Petition No. 15167/2018 Chhagan Lal Dhanka S/o Shri Gulab Chand Dhanka, Aged About 32 Years, R/o Village Shopur, Dhanko Ka Mohalla, Pratap Nagar, Sanganer Jaipur
----Petitioner Versus The Director Atomic Mineral Directorate For Exploration And Research Department Of Atomic Energy, A.m.d Complex, Sector- 5, Extn. Pratap Nagar, Sanganer, Jaipur.
----Respondent S.B. Civil Writ Petition No. 16025/2018 Shri Ram Sharma S/o Shri Lallulal Sharma, Aged About 43 Years, R/o Plot No. 13/14, Punchwati Colony, Tonk Road, Sanganer, Jaipur.
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(2 of 6) [CW-15096/2018]
----Petitioner
Versus
The Director, Atomic Mineral Directorate For Exploration And Research, Department Of Atomic Energy, A.m.d. Complex, Sector-5, Extn. Pratap Nagar, Sanganer, Jaipur.
----Respondent S.B. Civil Writ Petition No. 18351/2018 Shri Dhanna Lal S/o Shri Jagdish Bairwa, Aged About 27 Years, R/o 34/22, Sector-3, Pratap Nagar, Sanganer, Jaipur
----Petitioner Versus The Director Atomic Mineral, Directorate For Exploration And Research, Department Of Atomic Energy, A.m.d. Complex, Sector-5, Extn. Pratap Nagar, Sanganer, Jaipur
----Respondent For Petitioner(s) : Mr. Kunal Rawat, Adv.
For Respondent(s) : Mr. DK Bansal, Adv.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment 28/08/2019
1. Since identical question of law is involved in batch of writ petitions, the same are being decided by this common order.
2. Brief facts of these cases as noticed by this Court are that the petitioners were appointed as Helper Technical Assistant (Class IV Employee) in the Department of Atomic Energy on 10.01.2006, 05.07.2005, 05.07.2005, 06.07.2006 & July, 2006 respectively by the respondent at its Jaipur Office. The petitioners continued to discharge their duties until 30.04.2008. The petitioners having been terminated w.e.f. 30.04.2008 preferred claim petition after going through the prolonged process and the learned Labour Court after adjudication of the claim petitions for violation of Section 25- (Downloaded on 06/06/2021 at 06:38:49 PM)
(3 of 6) [CW-15096/2018] F of the Industrial Disputes Act, 1947 came out with a finding that the petitioners had not worked for 240 days and were therefore not entitled to any relief vide award dated 22.12.2017.
3. Mr. Kunal Rawat, learned counsel for the petitioners submits that the petitioners sought information relating to Gate Registration, Payment Vouchers, Muster Rolls, Daily Attendance Sheets, Bank Statements, Work Allotment Register and the Employees List alongwith Purchase Register by filing an application (Annexure-1 annexed with the writ petition) before the learned Labour Court. It is further submitted that despite filing of such application, the record was not brought. Learned counsel for the petitioners has drawn attention of this court to the cross- examination of one Vinod Kumar, who was representative of the respondent the relevant portion of which reads as follows:-
^^dkWUVªsDV yscj dk dksbZ ykbZlsal foHkkx }kjk i=koyh ij izLrqr ugha gSA ;g ckr lgh gS fd izn'kZ MCy;w&1] MCy;w&2] foHkkx }kjk tkjh fd;k x;k psd gSA ftl ij , Vw ch gLrk{kj foHkkx ds gSA izn'kZ MCy;w&3 foHkkx }kjk tkjh foKfIr gSA foHkkx }kjk vflLVsaV flD;kjhVh vkWQhlj] flD;qjsVh xkMZ vkSj odZ vflLVsaV ds inksa ij HkrhZ gsrq lu 2013 esa foKkiu fudkyk x;k Fkk ;g ckr lgh gS fd odZ vflLVsaV vkWfQlj esa foKku dk dk;Z djrs gSa blds vfrfjDr ySc dk dke Hkh djrs gSaA fMfyzax dk Hkh dk;Z djrs gSaA ySc esa D;k dk;Z djrs gS ;g eq>s tkudkjh ugha gS ySc esa D;k dk;Z gksrs gSa bldh tkudkjh eq>s ugha gSA eSa ySc ds dk;Z ls lEcU/k ugha gwWA lk{; esa tks 'kiFk &i= eSusa is'k fd;k gSA mls eSaus vius odhy lkgc ls rS;kj djokdj is'k fd;k gSA Bsds ds lEcU/k esa ftldk mYys[k eSaus 'kiFk&i= esa is'k fd;k gSA mlls lEcfU/kr dksbZ vfHkys[k ftlls Bsdsnkj dk mYys[k gSA ugha is'k fd;k gSA 'kiFk&i= ds izLrj 6 eSa lsok lekfIr dh uksfVl ftls lwpuk i= ij yx;k tkus dk mYys[k fd;k x;k (Downloaded on 06/06/2021 at 06:38:49 PM) (4 of 6) [CW-15096/2018] gSA mldh izfrfyfi foHkkx }kjk i=koyh ij ugha izLrqr gSA deZpkjh dh dkbZ ofj;rk lwph Hkh rS:k ugha dh xbZ FkhA vHkh Hkh gekjs laLFkku Bsds ij Jfed dk;Z ij gSA tks Jfed orZeku le; esa Bsds ij dk;Z dj jgs gSa os ml dk;Z esa ugh lyaXu gSA ftl dk;Z esa og Jfed lyaXu jgk gS bl lEcU/k esa foHkkx }kjk dksbZ vfHkys[k ugha izLrqr gSA orZeku le; esa tks Jfed Bsdsnkj dk;Z dj jgs gS mu ds dk;Z dh izd`fr orZeku deZpkj ls fHkUu gSA iqu% ijh{k.k % 'kwU; A i<dj] lqukdj rLnhd fd;k x;kA**
4. Learned counsel for the petitioners further submits by the strength of this cross-examination that the cheques given to the petitioners in lieu of salary were issued by the Department and also that despite asking, the record was not produced by the respondents before the learned Labour Court. It is further submitted that the petitioners-workmen have made all their reasonable efforts to get the record summoned and thus onus of getting the same was upon the respondents and if the respondents failed to produce such record before the Learned Labour Court, then adverse inference has to be drawn against the respondents. Learned counsel for the petitioners has shown Annexure-R/3 which is a chart given by the respondent which is on record which shows that the petitioners served the respondents for certain days in the respective calendar years. It is further submitted that merely giving some information in the form of Chart does not enable the petitioners to bring the correct position of the facts before the learned Labour Court. Learned counsel for the petitioners has relied upon the Section 25D of the Industrial Disputes Act, 1947 which reads as follows:-
"25D. Duty of an employer to maintain muster rolls of workmen. Notwithstanding that workmen in any industrial establishment have been laid-off, it shall be (Downloaded on 06/06/2021 at 06:38:49 PM) (5 of 6) [CW-15096/2018] the duty of every employer to maintain for the purposes of this Chapter a muster roll and to provide for the making of entries therein by workmen who may present themselves for work at the establishment at the appointed time during normal working hours."
5. Learned counsel for the petitioners thus submits that the respondents failed in their statutory duty to provide necessary information which resulted into failure of the petitioners to prove their continuous working of 240 days.
6. Mr. DK Bansal, learned counsel for the respondents, on the other hand, has pointed out that the petitioners were not even workmen with the respondents but were simply given contract to do some work of cleaning and other stipulated work. Learned counsel for the respondents also submits that the details of the working days of the petitioners were given to the learned Labour Court and there was no requirement of other record to be given. He has relied upon a judgment rendered by the Apex Court in Krishna Bhagya Jala Nigam Ltd. Vs. Mohammed Rafi: (2009) 11 SCC 522 wherein the Apex Court has held that the onus of proving 240 days would be upon the workman.
7. After hearing learned counsel for the parties, this Court is of the opinion that in ordinary circumstances, the prima-facie case has to be founded upon the details given by the petitioners but from bare reading of Section 25-D of the Act of 1947, it becomes clear that it is duty of the employer to maintain muster rolls of the workmen. Such duty has been cast upon the employer as it would be very difficult for the workman to be in possession of the record and prove regarding his working. In this case, the respondents themselves have admitted that the petitioners were working with them for certain days but no record has been shown by the respondents to substantiate the dispute in question. This Court (Downloaded on 06/06/2021 at 06:38:49 PM) (6 of 6) [CW-15096/2018] has also carefully seen the cross-examination which clearly reflects that payment of salary to the petitioners was made by cheques by the respondents directly and despite the petitioners calling for the record, no record was submitted by the respondents before the learned Labour Court. It is a clear case where the duty of providing record was shifted upon the respondents in light of the fact that they have admitted that the petitioners have discharged duties with them for a particular period for which chart has been given which is Annexure-R/3 filed by the respondents alongwith reply. The failure on the part of the respondents to provide the actual record showing attendance of the petitioners- workmen clearly disabled the petitioners-workmen to make out a case of violation of Section 25-F of the Act of 1947.
8. In light of the aforesaid observations, the present writ petitions are allowed. The award impugned in the respective writ petitions passed by the learned Labour Court dated 22/12/2017 is hereby quashed and set aside and the matter is remanded back to the learned Labour Court for determination afresh the claim of the petitioners-workmen after calling for the record and providing proper opportunity to the petitioners-workmen to examine the record and make efforts to establish their case. The record as sought in Annexure-1 and as available with the respondents shall be produced before the Labour Court by the respondents. Since the matter pertains to an old dispute, the learned Labour Court is directed to decide the claim afresh within a period of six months from the date of receipt of certified copy of this order.
(PUSHPENDRA SINGH BHATI),J Raghu/Anu /397 (Downloaded on 06/06/2021 at 06:38:49 PM) Powered by TCPDF (www.tcpdf.org)