Back
2023 Supreme(Online)(DEL) 10691
DELHI HIGH COURT
SARITA TIWARI – Appellant
Versus
AASTHA GARMENTS – Respondent
WP(C)-5369_2019
A workman who has not completed 240 days of service in the year preceding termination cannot invoke the benefit of Section 25F of the Industrial Disputes Act, 1947.
Headnote:
INDUSTRIAL DISPUTE - SECTION 25F OF THE INDUSTRIAL DISPUTES ACT, 1947 - CONTINUOUS SERVICE - BURDEN OF PROOF - ABANDONMENT OF SERVICES - ILLEGAL TERMINATION - MOLESTATION CHARGES - ACQUITTAL IN CRIMINAL CASE - NO APPEAL FILED BY THE STATE - FINDINGS OF ACQUITTAL ATTAINED FINALITY.
Fact of the Case:
The petitioner, a checker, alleged that she was illegally terminated by the respondent management after she was sexually harassed by the owner's nephew. She claimed that she had been working with the respondent management since December 10, 2011, at a monthly salary of Rs. 7,000/-. However, the respondent management contended that the petitioner had abandoned her services and that she had not completed 240 days of service in the year preceding her termination.
Finding of the Court:
The Labour Court held that the petitioner had failed to discharge the onus of proving that she had been in continuous service for 240 days in the year preceding her termination. The Court also observed that the petitioner had made several self-contradicting statements regarding her alleged termination and that she had admitted to never having visited the respondent management after the date of her alleged termination. The Court further noted that the petitioner had filed a complaint of sexual harassment against the owner's nephew, but that he had been acquitted by the Mahila Court.
Issues: 1. Whether the petitioner had completed 240 days of service in the year preceding her termination?2. Whether the petitioner had abandoned her services?3. Whether the petitioner had been illegally terminated?
Ratio Decidendi: 1. The burden of proving that a workman has been in continuous service for 240 days in the year preceding termination lies on the workman.2. A workman who has not completed 240 days of service in the year preceding termination cannot invoke the benefit of Section 25F of the Industrial Disputes Act, 1947.3. A workman who has abandoned his services cannot claim to have been illegally terminated.
Final Decision: The Court dismissed the petition, upholding the impugned award of the Labour Court.
W.P.(C) 5369/2019 1 of 16
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Reserved on : 22nd November, 2023
Pronounced on : 11th December, 2023
+
W.P.(C) 5369/2019
SARITA TIWARI
..... Petitioner
Through:
Ms. Ankita Patnaik, Adv.
versus
AASTHA GARMENTS
..... Respondent
Through:
Mr. Anuj Gupta, Adv.:
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1.
This petition assails award dated 14th November, 2018 passed by
Presiding Officer, Labour Court, Dwarka in LIR No. 7886/2016 (“the
impugned award”). The Ld. Labour Court vide the impugned award has
rejected the petitioner’s claim against the respondent management for
reinstatement with full back wages.
Factual Background
2.
As per the claim of the petitioner, she was working with the
respondent management since 10th December, 2011 at the post of a
“checker” and her last drawn salary was Rs 7,000/- per month. She had
been working with sincerity and diligence, however, no facilities such as
bonus, minimum wages, ESI, PF were given to her and she was
compelled to work for more than 12 hours per day without being paid
Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55
Signature Not Verified
W.P.(C) 5369/2019 2 of 16
overtime. She alleges that on 18th January, 2013, when she went to the
washroom, the nephew (Rachit) of the owner of the establishment pushed
her inside the washroom and tried to outrage her modesty. But when the
petitioner raised her voice, he fled away. She made a complaint to the
owner (Mr. Praveen Jain) who, instead of taking any action against his
nephew, terminated the services of the petitioner on the same day and
withheld her salary from November 2012-January, 2013. The petitioner
stopped going to work after 18th January, 2013.
3.
On 19th January, 2013, she alleges that she received a call from
Rachit, asking her to come to the office, but she refused to go. However,
upon receiving a call from someone else, she went to the office. Upon
reaching there, Rachit tried to misbehave with her again, and the
petitioner had to run to her working place and wait for the owner. When
she disclosed this to the owner, he asked her to go back home and the
petitioner returned home.
4.
On 24th January, 2013, the owner asked the petitioner to come to
office and collect her dues as well as her gold ring which had apparently
fallen off during her scuffle with Rachit. However, when she reached the
office, Rachit abused the petitioner and forced her out of the premises.
The petitioner made a PCR call and thereafter, she along with the
petitioner and Rachit visited the police station, where efforts were made
to reach a compromise, but to no avail. The petitioner was once again
called to the office on 28th January, 2013, when Rachit again misbehaved,
after which the petitioner lodged an FIR, being FIR No. 59/ 2013 (“the
FIR”), on 28th January, 2013.
5.
Though she hoped that her services will be reinstated, this was not
done by the respondent management. Therefore, the petitioner was
Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55
Signature Not Verified
W.P.(C) 5369/2019 3 of 16
compelled to file a complaint on 11th July, 2013 before Labour Office,
Jhilmil, which was followed by another complaint dated 09th March,
2015 and a legal notice. As the petitioner did not receive any reply to the
legal notice sent by her, the dispute was referred to the Ld. Labour Court
for adjudication, and the impugned award was rendered by the Ld.
Labour Court.
6.
Vide the impugned award, the Ld. Labour Court decide
