Seema vs Orient Craft Limited
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 04.05.2026
Pronounced on : 30.05.2026
Uploaded on : 01.06.2026
+ W.P.(C) 13060/2018
SEEMA .....Petitioner
Through: Ms. Vagisha Kochar and Mr. Sharath
Sampath, Advocates.
versus
ORIENT CRAFT LIMITED .....Respondent
Through: Mr. Gulshan Chawla, Ms. Kanupriya
Chawla and Mr. Manish Kumar,
Advocates.
+ W.P.(C) 13067/2018
PUSHPA PAL .....Petitioner
Through: Ms. Vagisha Kochar and Mr. Sharath
Sampath, Advocates.
versus
M/S ORIENT CRAFT LIMITED .....Respondent
Through: Mr. Gulshan Chawla, Ms. Kanupriya
Chawla and Mr. Manish Kumar,
Advocates.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. By way of the present petitions, the petitioners/workwomen have
assailed the award dated 23.07.2018, whereby the Labour Court dismissed
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their claims/references and denied them the reliefs sought against the
common respondent/management.
2. Briefly stated, as per their respective claim applications, the
workwomen, namely Seema and Pushpa Pal , had been working with the
management as permanent skilled workers in „Hand Embroidery‟ for several
years. The petitioner/ Seema had joined service in July 2003 whereas the
petitioner/ Pushpa Pal had joined service on 01.01.1997. The last drawn
wages of both the workwomen were stated to be Rs.5,278/- per month. Both
the workwomen averred that during the tenure of their service, they had
performed their duties diligently and no complaint was ever made against
either of them by the management. It was further averred that the
management had failed to extend statutory and legal facilities to them, such
as appointment letters, identity cards, pay slips, minimum wages, leave
benefits, overtime wages, attendance cards, and other service benefits.
According to the workwomen, upon repeatedly demanding such legal
facilities, the management illegally terminated their services without paying
their earned wages and other dues, and without complying with the
mandatory provisions of the law. Aggrieved thereby, the workwomen raised
industrial disputes seeking reinstatement with continuity of service, back
wages and consequential benefits; however, upon failure of conciliation
proceedings, the disputes were referred to the Labour Court for adjudication
and, as noted above, the same came to be dismissed by the Labour Court.
3. Ms. Kochar, learned counsel appearing for the
petitioners/workwomen, while assailing the impugned award, contends that
the workwomen had been working with the management for several years as
skilled workers without any complaints, but when they demanded legal
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facilities and statutory benefits, the management, in the garb of transfer,
illegally terminated their services without issuing any notice, chargesheet or
conducting any inquiry. She argues that the transfer of services shown by the
management is only a cover to justify the illegal termination of the
petitioners. It is contended that no proof regarding the service of the
concerned transfer letters upon the workwomen has been placed on record
and even the management witness admitted the same during cross-
examination. It is further contended that the documents relied upon by the
management, including the appointment letters, were fraudulently prepared
using blank papers previously signed by the workwomen.
4. Per contra , Mr. Chawla, learned counsel appearing for the
management in both petitions, defends the impugned award and submits that
the petitioner workwomen were never terminated from service and their
services were only transferred from the Okhla Unit of the management to
the Gurgaon Unit , duly in compliance of the terms stipulated in the
appointment letters and the Certified Standing Orders of the management. It
is further submitted that the management repeatedly called upon the
petitioner workwomen to report for duty at the new workplace through
various letters and communications; however, the workwomen deliberately
did not join their duties. He also submits that the appointment letters and
other records are genuine documents.
5. In rejoinder, learned counsel for the workwomen submits that the
factum of the existence or display of the Certified Standing Orders of the
management was not even pleaded before the Labour Court.
6. To appreciate the controversy involved in the present petitions, it is
deemed apposite to note that the impugned award came to be passed
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pursuant to the following terms of reference:
“ Whether Smt. Seema wife of Sh.Ashok Kumar and three others (as per
annexure "A") are absenting from their duties by not reporting duty at the
transferred place or their services have been terminated in the garb of
transfer illegally and/or unjustifiably by the management, and if yes, to what
relief are they entitled and what directions are necessary in this respect? ”
“ Whether Smt. Pushpa Pal wife of Sh. Mahesh Pal and three others (as per
Annexure ‘A’) are absenting from their duties by not reporting for duty at
the transferred place or whether their services have been terminated in the
garb of transfer illegally and/or unjustifiably by the management, and if yes,
to what relief are they entitled and what directions are necessary in this
respect? ”
7. Upon completion of pleadings, the Labour Court framed six issues for
adjudication. Only four of the said issues pertain to the present
petitioners/workwomen and the other two issues pertained to a third
workwoman who is not before this Court. The relevant issues are
reproduced below:
“ …
(2) Whether the services of workwomen Smt. Pushpa Pal and Seema were
illegally and/or unjustifiably terminated by the management on 12.06.2010?
OPW
…
(4) Whether the services of Smt. Pushpa Pal and Seema were not terminated
and they were only transferred on 12.06.2010 at Gurgaon and they did not
join their duties? OPM
(5) If it is proved that the services of the workwomen were not terminated by
the management and they were only transferred at Gurgaon on the dates in
question, then whether this Court had jurisdiction to entertain the claim
filed by the workwomen? OPM
(6) Relief. ”
8. Regarding the aspect of service conditions, including job
transferability i.e., physical location transfers in the concerned appointment
letters, it is pertinent to note that the workwomen have denied the issuance
of any appointment letters to them in the first place. They also challenge the
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genuineness of the said documents on the ground that the same appear to
have been issued after the workwomen were granted ESIC and PF facilities.
Furthermore, it has been submitted that no service conditions were explained
to the workwomen at the time of their joining service.
9. Notably, the discrepancy between the ESI records and the
appointment letters relied upon by the management assumes significance as
the management‟s own witness (MW-1) admitted that ESI and PF facilities
are made available to employees from the very first day of joining. The
records relied upon by the management do not align with its own stand
regarding the date of appointment of the workwomen. The ESI Card of
petitioner/ Seema reflects the date of appointment as 08.10.2005, whereas the
appointment letter produced by the management bears the date 15.10.2005.
The management witness, MW-1, could not furnish any satisfactory
explanation for this discrepancy.
Similarly, for petitioner/ Pushpa Pal , two ESI Cards were placed on
record, showing her dates of appointment as 30.03.2000 and 07.10.2005
respectively. MW-1 admitted that both these ESI Cards had been provided
through the management, yet failed to explain the existence of two different
dates of appointment in the statutory records. Although MW-1 put forth an
explanation, stating that petitioner/ Pushpa Pal might have worked with the
management earlier, left service, and thereafter joined again, however
neither has this assertion been pleaded by the management nor is it
supported by any documentary evidence whatsoever. Notably, the ESI
records, being statutory records, are generated on the basis of information
furnished by the employer.
10. Further, the workwomen consistently asserted that at the time of
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employment, the management had obtained their signatures/thumb
impressions on blank papers and forms, and that the contents thereof were
subsequently filled in by the management. During their respective cross-
examinations, both Seema and Pushpa specifically stated that the
documents, including the appointment letters, were blank and unfilled when
signed by them. Significantly, the testimony of MW-1 reveals that the
columns in the forms and appointment-related documents were filled by the
management after obtaining the particulars from the workwomen.
11. The contention of the management that the workwomen refused to
accept the transfer letters is not fully borne out by the record. Both the
workwomen denied refusing service of the transfer letters dated 12.06.2010.
The petitioner/ Seema stated during cross-examination that she received the
transfer letter through post five/six days after her termination, whereas the
petitioner/ Pushpa specifically denied receipt of the transfer letters dated
12.06.2010 and 15.06.2010. The petitioner/ Pushpa also denied the
suggestion that she had refused to receive the transfer letter in the presence
of Mr. Girish Chand Tiwari . Significantly, no independent witness,
including Mr. Girish Chand Tiwari , was examined by the management to
prove such a refusal. MW-1 further admitted during cross-examination that
there was no proof of receipt of the letters dated 12.06.2010, 15.06.2010, or
21.06.2010 sent through post to the workwomen, and that he could not say
whether the said letters were actually received by them or were returned
unserved. He also admitted that the transfer letter dated 12.06.2010 was not
immediately sent through post and no explanation could be furnished as to
why the same was not dispatched between 12.06.2010 and 15.06.2010.
12. Notably, the reply dated 17.06.2010 sent by the petitioner/ Seema to
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the management immediately after the receipt of the transfer
communications dated 12.06.2010 and 15.06.2010 demonstrates that she had
raised protest against the action of the management immediately.
13. The evidence shows that the consistent stand of the workwomen was
that their services had been illegally terminated and that the transfer orders
were merely used to justify such action. Their statements regarding financial
hardship and difficulty in travelling were made only to show that, even
otherwise, the alleged transfer was unreasonable and unfair. In this regard, it
is relevant to note that the workwomen were admittedly low-paid female
workers and were statedly transferred from Delhi to Gurgaon / Khandsa . The
management failed to produce any convincing material to show any
administrative exigency or operational necessity requiring such transfer.
1
This Court, in Chelsea Mills Vs. Tarkeshwar Singh , observed that transfers
effected to a distant location, causing disproportionate hardship to workmen
and lacking bona fide justification, amount to an unfair labour practice.
14. It is settled law that Certified Standing Orders have statutory force
and prevail over private contracts. In Bharatiya Kamgar Karmachari
2
Mahasangh Vs. Jet Airways Ltd. , the Supreme Court held that Certified
Standing Orders override inconsistent contractual terms. In the present case,
MW-1 admitted during cross-examination that copies of the Certified
Standing Orders were never supplied to the workwomen, either at the time
of appointment or during their service, and were only displayed at the main
gate of the management workplace. However, no material was placed on
record to establish even such display. MW-1 further admitted that he could
1
2025 SCC OnLine Del 3844
2
(2023) 20 SCC 178
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not even state the number of pages of the Certified Standing Orders or the
amendments thereto. Crucially, the management also failed to place the said
Standing Orders on record. Furthermore, learned counsel for the
respondent/management has placed reliance upon Pearlite Liners (P) Ltd.
3
Vs. Manorama Sirsi to argue that transfer is a normal incidence of service;
however, this reliance is completely misplaced as the said case arose out of a
civil suit and, by its own terms, is inapplicable to a reference under the
Industrial Disputes Act, 1947.
15. The stand of the workwomen that their services were terminated also
finds support in the management evidence. In this regard, the contention
raised on behalf of the management that the issue regarding the removal of
the workwomen‟s names from the muster rolls was not pleaded before the
Conciliation Officer or the Labour Court is also devoid of merit. The said
aspect clearly emerges from the evidence led before the Labour Court. MW-
1, during cross-examination, specifically admitted that the names of the
workwomen were no longer reflected on the muster rolls of the
management. He further admitted that no charge-sheet was ever issued and
no domestic inquiry was conducted before striking off their names from the
muster rolls. The Supreme Court, in Delhi Cloth and General Mills Ltd. Vs.
4
Shambhu Nath Mukherji , observed that striking off the name of a workman
from the rolls amounts to termination of service.
16. Admittedly, no domestic inquiry was conducted by the management
before discontinuing the services of the workwomen. During cross-
examination, MW-1 specifically admitted that no charge-sheet was issued to
3
(2004) 3 SCC 172
4
(1977) 4 SCC 415
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the workwomen and no inquiry whatsoever was conducted before striking
off their names from the muster rolls of the management. Even according to
the concerned appointment letters, acts of misconduct were required to be
dealt with by following proper procedure, including suspension and
domestic inquiry. Therefore, once the management claimed that the
workwomen had failed to comply with the transfer orders and treated such
conduct as misconduct, the management should have followed the procedure
prescribed under its own service conditions and adhered to the principles of
natural justice. However, no such procedure was followed in the present
5
cases. In Uptron India Ltd. Vs. Shammi Bhan , the Supreme Court held that
termination on the ground of absence without holding an inquiry is violative
of the principles of natural justice.
17. It is equally well settled that abandonment of service cannot be
readily inferred and the burden lies upon the employer to establish a clear
intention on the part of the employee to permanently relinquish employment.
6
In Fateh Chand Vs. Presiding Officer, Labour Court , this Court held that
mere absenteeism does not amount to abandonment of service and that the
management must bring sufficient material on record to establish such
abandonment. The Court further observed that where a workman fails to
report for duty, the management is required to call upon the workman to
resume duties and, if necessary, initiate disciplinary proceedings in
accordance with law. Thus, mere absence from duty or non-reporting at the
transferred workplace could not automatically amount to abandonment of
service in the absence of a proper domestic inquiry. While learned counsel
5
(1998) 6 SCC 538
6
2012 SCC OnLine Del 281
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for the respondent/management has placed reliance upon the decision of this
7
Court in Chand Singh Vs. Sigma Industries Corporation , a perusal of the
same shows that in the said case, the workman was a daily-wage driver who
was unable to discharge his initial burden, which is not the case in the
present matter where the petitioners are permanent skilled workers who have
supported their claims with material evidence.
18. Before proceeding further, this Court also takes note of the limited
scope of writ jurisdiction in exercise of powers conferred under Article 226
of the Constitution of India. It is well settled that the challenge is not in the
nature of appeal, but to see if the award is passed without jurisdiction, is
perverse, or does not follow the principles of natural justice. In Rajinder
8
Kumar Kindra Vs. Delhi Administration , the Supreme Court has held that
where material evidence is ignored or findings are based on improper
appreciation of evidence, interference in writ jurisdiction is justified.
19. In the present case, the findings recorded by the Labour Court suffer
from non-consideration of material evidence and therefore warrant
interference by this Court.
20. In view of the aforesaid discussion, this Court is of the considered
opinion that the management failed to establish that the workwomen had
unlawfully abandoned their service, or that the transfers were bona fide and
validly effected in accordance with law. On the contrary, the material on
record demonstrates that the workwomen were illegally terminated from
service under the guise of transfer.
21. The question that now arises is regarding the nature and extent of
7
2012 SCC OnLine Del 6050
8
(1984) 4 SCC 635
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relief to which the workwomen are entitled. Learned counsel for the
respondent/management has placed reliance upon State of Punjab Vs. Jagir
9
Singh to contend that back wages shall not be granted; however, the said
decision was rendered in the specific facts of that case, on the basis of the
workman‟s conduct. The principles relating to reinstatement and back wages
in cases of wrongful termination have been clearly laid down by the
Supreme Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
10
Mahavidyalaya , wherein reinstatement with back wages has been
recognized as the normal rule, subject to certain exceptions. The relevant
extract is reproduced hereunder:
“ 38. The propositions which can be culled out from the
aforementioned judgments are:
38.1. In cases of wrongful termination of service, reinstatement
with continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding
the issue of back wages, the adjudicating authority or the Court may take
into consideration the length of service of the employee/workman, the
nature of misconduct, if any, found proved against the employee/workman,
the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are
terminated and who is desirous of getting back wages is required to either
plead or at least make a statement before the adjudicating authority or the
Court of first instance that he/she was not gainfully employed or was
employed on lesser wages. If the employer wants to avoid payment of full
back wages, then it has to plead and also lead cogent evidence to prove
that the employee/workman was gainfully employed and was getting
wages equal to the wages he/she was drawing prior to the termination of
service. This is so because it is settled law that the burden of proof of the
existence of a particular fact lies on the person who makes a positive
averments about its existence. It is always easier to prove a positive fact
than to prove a negative fact. Therefore, once the employee shows that he
was not employed, the onus lies on the employer to specifically plead and
prove that the employee was gainfully employed and was getting the same
or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal
9
(2004)9 SCC 129
10
(2013) 10 SCC 324
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exercises power under Section 11-A of the Industrial Disputes Act, 1947
and finds that even though the enquiry held against the employee/workman
is consistent with the rules of natural justice and / or certified standing
orders, if any, but holds that the punishment was disproportionate to the
misconduct found proved, then it will have the discretion not to award full
back wages. However, if the Labour Court/Industrial Tribunal finds that
the employee or workman is not at all guilty of any misconduct or that the
employer had foisted a false charge, then there will be ample justification
for award of full back wages.
38.5. The cases in which the competent Court or Tribunal finds
that the employer has acted in gross violation of the statutory provisions
and/or the principles of natural justice or is guilty of victimizing the
employee or workman, then the concerned Court or Tribunal will be fully
justified in directing payment of full back wages. In such cases, the
superior Courts should not exercise power under Article 226 or 136 of the
Constitution and interfere with the award passed by the Labour Court,
etc., merely because there is a possibility of forming a different opinion on
the entitlement of the employee/workman to get full back wages or the
employer’s obligation to pay the same. The Courts must always be kept in
view that in the cases of wrongful / illegal termination of service, the
wrongdoer is the employer and sufferer is the employee/workman and
there is no justification to give premium to the employer of his
wrongdoings by relieving him of the burden to pay to the
employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior Courts have interfered
with the award of the primary adjudicatory authority on the premise that
finalization of litigation has taken long time ignoring that in majority of
cases the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for delay in the
disposal of cases. For this the litigants cannot be blamed or penalised. It
would amount to grave injustice to an employee or workman if he is
denied back wages simply because there is long lapse of time between the
termination of his service and finality given to the order of reinstatement.
The Courts should bear in mind that in most of these cases, the employer
is in an advantageous position vis-à-vis the employee or workman. He can
avail the services of best legal brain for prolonging the agony of the
sufferer, i.e., the employee or workman, who can ill afford the luxury of
spending money on a lawyer with certain amount of fame. ”
22. It is also pertinent to note that the impugned award itself records that
the workwomen have remained unemployed since termination. The
petitioners have consistently deposed that they have not been gainfully
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employed since their termination. The management has not produced any
material to establish otherwise.
23. Considering the peculiar facts and circumstances of the present case,
as well as the law laid down by the Supreme Court in Deepali Gundu
Surwase ( supra ), this Court deems it just and proper to direct reinstatement
of the petitioners/workwomen in Delhi with continuity of service and 50%
back wages from the date of termination till reinstatement. The management
is directed to comply with the said direction within a period of four weeks.
24. Accordingly, the present petitions are allowed, and the impugned
award is set aside.
25. The present petitions are disposed of in the above terms.
MANOJ KUMAR OHRI)
(
JUDGE
MAY 30, 2026
dh/nb
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