Sarita Tiwari vs. Aastha Garments

* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
% Reserved on : 22 November, 2023
th
Pronounced on : 11 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.
th
1. This petition assails award dated 14 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
th
respondent management since 10 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
Signature Not Verified

W.P.(C) 5369/2019 1 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

th
overtime. She alleges that on 18 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
th
stopped going to work after 18 January, 2013.
th
3. On 19 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.
th
4. On 24 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
th
called to the office on 28 January, 2013, when Rachit again misbehaved,
after which the petitioner lodged an FIR, being FIR No. 59/ 2013 (“ the
th
FIR ”), on 28 January, 2013.
5. Though she hoped that her services will be reinstated, this was not
done by the respondent management. Therefore, the petitioner was
Signature Not Verified

W.P.(C) 5369/2019 2 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

th
compelled to file a complaint on 11 July, 2013 before Labour Office,
th
Jhilmil, which was followed by another complaint dated 09 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 decided the
dispute in favour of the respondent management, and, inter alia ,
observed that there were major contradictions between the petitioner’s
stated case in the FIR when compared to the statement of claim.
Moreover, the petitioner herself expressed her intention to abandon her
service before the owner, Praveen Jain. Therefore, the Ld. Labour Court
observed that the present case was one of abandonment of service, and
not that of illegal termination by the management. Furthermore, the Ld.
Labour Court held that the petitioner was unable to discharge the onus of
proving that she had been in service for 240 days in the year preceding
the date of termination, and therefore, she cannot avail the benefit of
Section 25F of the Industrial Disputes Act, 1947 (“ the Act ”).
Submissions on behalf of the Petitioner
7. The petitioner's counsel contended that the impugned award has
erroneously rejected the petitioner's claim, on the basis that the
documents placed on record by the petitioner tell an entirely different
story. There were extreme inconsistencies between her statements before
the Ld. Labour Court as part of her claim and that of the FIR which had
been filed. The impugned award reached a conclusion, incorrectly so, as
per the petitioner, that the management never terminated the claimant
Signature Not Verified

W.P.(C) 5369/2019 3 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

from her service but she had abandoned her job. Further, on the issue of
whether she had completed 240 days of service with the management in
the preceding year, the Ld. labour Court found that she was not in
th
possession of any document to prove her employment prior to 29
November, 2012 and had not examined any co-worker as well to buttress
her claim that she was working since December, 2011.
8. Furthermore, the diary entries which were produced by her
regarding payments made to her since December, 2011, could not be
proved. The petitioner's counsel contended that the Ld. Labour Court had
reached these conclusions on the basis of presumptions and assumptions,
since there was actually no contradiction between the FIR and the
statement of claim, it was just that the FIR contained a reasonable amount
of detail, whereas the claim before the Ld. Labour Court was not well-
drafted at best. The petitioner’s counsel further contended that the
question of abandonment did not arise since she was merely forced out
of her service due to the extreme and objectionable behaviour of the
owner’s nephew.
Submissions on behalf of the Respondent
9. Before this Court, the respondent management asserted that the
diary entries produced by the petitioner as proof of continuous
employment are not reliable. The said diary entries are of diaries
purportedly belonging to the petitioner and merely reflect the number of
garments checked by the petitioner on particular dates.
10. Furthermore, there are discrepancies between the format used
prior to November, 2012 and after November, 2012. For diary entries
post November, 2012, the number of pieces checked by the petitioner is
mentioned first, followed by the relevant date, and each entry is counter
Signature Not Verified

W.P.(C) 5369/2019 4 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

signed by the management persons. On the other hand, the diary entries
made prior to November, 2012 have the date first, followed by the
number of pieces; but these entries are not countersigned by the
management persons unlike the entries made post November, 2012.
Therefore, the respondent’s counsel submitted that, in light of major
discrepancies in the diary entries produced by the petitioner, the same
cannot be relied upon as evidence of her having worked for 240 days in
the year preceding her date of termination.
11. Respondent’s counsel also contended that the petitioner habitually
th
filed complaints of molestation, and that vide judgement dated 11
March, 2016, the Ld. Mahila Court has acquitted the management
owner’s nephew.
12. Reliance was additionally placed on another complaint regarding
th
eve teasing that was filed by the petitioner on 30 January, 2013. In the
th
said complaint, the petitioner states that on 05 June, 2012 (Tuesday) at
10:00 am in the morning, she was going in auto to Khajoori Chowk to
buy some fabric and was teased by certain co-occupants of the auto.
th
Accordingly, it was contended that at least on that day, i.e. 05 June,
2012, she couldn’t possibly have been working with the respondent
management as she herself admits that she was out to get some fabric at
10:00 AM, that is during working hours.
13. The respondent’s counsel further pointed to the various
inconsistencies in the petitioner’s deposition before the Ld. Labour Court
wherein she first states that she received a monthly salary of Rs. 7000/-,
and did not receive payment on a per piece basis. However, she later also
states that she was paid on the basis of entries in the diary. The petitioner
also admits to not being in possession of any document that could
Signature Not Verified

W.P.(C) 5369/2019 5 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

establish that she was employed with the respondent management prior
th
to 29 November, 2012.
14. Furthermore, the respondent’s counsel submits that on one hand,
in the FIR, the petitioner claimed to have been working the with
respondent management for the past three years, i.e. since 2010. On the
other hand, in her statement of claim, the petitioner states that she has
been working with the respondent management since December 2011.
15. Therefore, the petitioner was unable to prove that she had been
working for the respondent management for 240 days in the year
preceding her date of termination.
16. Finally, the respondent’s counsel submitted that the petitioner has
levelled false molestation charges against the staff of the management
with the sole intent to extort money, but both the criminal case and the
claim before the Ld. Labour Court have been dismissed. No appeal
against the acquittal in the criminal case filed pursuant to the FIR has
been initiated by the State and those findings have attained finality.
Analysis and Conclusion
17. Heard the learned counsel for the parties, and examined the
evidence placed on record.
18. The petitioner has initiated the present industrial dispute alleging
violation of Section 25F of the Act, which provides for conditions
precedent to retrenchment of workmen. The said provision is extracted
below for reference:

No workman employed in any industry who
has been in continuous service for not less
Signature Not Verified

W.P.(C) 5369/2019 6 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

*

the benefit of Section 25-F, the workman needs to prove that she has been
in continuous service for not less than one year from the date of her
termination. Section 25B of the Act stipulates that a person who has
worked for a period of 240 days in the preceding year is deemed to be in
continuous service for a period of one year. The relevant extract from
Section 25B is produced below for reference:

(1) a workman shall be said to be in continuous
service for a period if he is, for that period, in
uninterrupted service, including service
which may be interrupted on account of
Signature Not Verified

W.P.(C) 5369/2019 7 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

(3) or a period of one year, if the workman,
during a period of twelve calendar months
preceding the date with reference to which
calculation is to be made, has actually
worked under the employer for not less than—
(i) one hundred and ninety days in the case of a
workman employed below ground in a mine;
and
(ii) two hundred and forty days, in any other
case ;”
(emphasis supplied)
20. It is well-settled that the burden to prove that the workman
was in continuous employment of 240 days with the management is
on the workman herself. This principle was reiterated by the Hon’ble
Supreme Court in the landmark judgement of R.M. Yellatti v. Asstt.
Executive Engineer , (2006) 1 SCC 106 ; the relevant paragraph is
extracted below:
“17. Analysing the above decisions of this
Court, it is clear that the provisions of the
Evidence Act in terms do not apply to the
proceedings under Section 10 of the
Industrial Disputes Act. However, applying
general principles and on reading the
aforestated judgments, we find that this
Signature Not Verified

W.P.(C) 5369/2019 8 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

Court has repeatedly taken the view that the
burden of proof is on the claimant to show
that he had worked for 240 days in a given
year. This burden is discharged only upon
the workman stepping in the witness box.
This burden is discharged upon the
workman adducing cogent evidence, both
oral and documentary. In cases of
termination of services of daily-waged
earners, there will be no letter of
appointment or termination. There will also
be no receipt or proof of payment. Thus in
most cases, the workman (the claimant) can
only call upon the employer to produce
before the court the nominal muster roll for
the given period, the letter of appointment or
termination, if any, the wage register, the
attendance register, etc. Drawing of adverse
inference ultimately would depend thereafter
on the facts of each case. The above decisions
however make it clear that mere affidavits or
self-serving statements made by the claimant
workman will not suffice in the matter of
discharge of the burden placed by law on the
workman to prove that he had worked for
240 days in a given year . The above
judgments further lay down that mere non-
production of muster rolls per se without any
plea of suppression by the claimant
workman will not be the ground for the
Tribunal to draw an adverse inference
against the management . Lastly, the above
judgments lay down the basic principle,
namely, that the High Court under Article 226
of the Constitution will not interfere with the
concurrent findings of fact recorded by the
Labour Court unless they are perverse. This
exercise will depend upon the facts of each
case.”
(emphasis supplied)
Signature Not Verified

W.P.(C) 5369/2019 9 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

21. These principles were reiterated by the Hon’ble Supreme Court in
Krishna Bhagya Jala Nigam Ltd. v. Mohd. Rafi , (2009) 11 SCC 522 ,
and the law on this subject was traced as under in paragraphs 8 to 10:
“8. In Rajasthan State Ganganagar S. Mills Ltd. v.
State of Rajasthan [(2004) 8 SCC 161] the position
was again reiterated in para 6 as follows : (SCC p.
163)
‘6. It was the case of the workman that
he had worked for more than 240 days
in the year concerned. This claim was
denied by the appellant. It was for the
claimant to lead evidence to show that
he had in fact worked up to 240 days
in the year preceding his termination.
He has filed an affidavit. It is only his
own statement which is in his favour
and that cannot be regarded as
sufficient evidence for any court or
tribunal to come to the conclusion that
in fact the claimant had worked for
240 days in a year . These aspects were
highlighted in Range Forest Officer v.
S.T. Hadimani [(2002) 3 SCC 25]. No
proof of receipt of salary or wages for
240 days or order or record in that
regard was produced. Mere non-
production of the muster roll for a
particular period was not sufficient
for the Labour Court to hold that the
workman had worked for 240 days as
claimed .’
9. In Municipal Corpn., Faridabad v. Siri Niwas
[(2004) 8 SCC 195] it was held that the burden was
on the workman to show that he was working for
more than 240 days in the preceding one year prior
to his alleged retrenchment. In M.P. Electricity
Board v. Hariram [(2004) 8 SCC 246] the position
Signature Not Verified

W.P.(C) 5369/2019 10 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

was again reiterated in para 11 as follows : (SCC
p. 250)
‘11. The above burden having not been
discharged and the Labour Court
having held so, in our opinion, the
Industrial Court and the High Court
erred in basing an order of
reinstatement solely on an adverse
inference drawn erroneously . At this
stage it may be useful to refer to a
judgment of this Court in Municipal
Corpn., Faridabad v. Siri Niwas
[(2004) 8 SCC 195] wherein this Court
disagreed with the High Court's view of
drawing an adverse inference in
regard to the non-production of certain
relevant documents. This is what this
Court had to say in that regard : (SCC
p. 198, para 15)
“15. A court of law even in a case
where provisions of the Evidence Act
apply, may presume or may not
presume that if a party despite
possession of the best evidence had not
produced the same, it would have gone
against his contentions. The matter,
however, would be different where
despite direction by a court the
evidence is withheld. Presumption as to
adverse inference for non-production
of evidence is always optional and one
of the factors which is required to be
taken into consideration is the
background of facts involved in the lis.
The presumption, thus, is not
obligatory because notwithstanding
the intentional non-production, other
circumstances may exist upon which
such intentional non-production may
Signature Not Verified

W.P.(C) 5369/2019 11 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

be found to be justifiable on some
reasonable grounds. In the instant
case, the Industrial Tribunal did not
draw any adverse inference against the
appellant. It was within its jurisdiction
to do so particularly having regard to
the nature of the evidence adduced by
the respondent.”’
10. In RBI v. S. Mani [(2005) 5 SCC 100 ] a three-
Judge Bench of this Court again considered the
matter and held that the initial burden of proof was
on the workman to show that he had completed 240
days of service. The Tribunal's view that the burden
was on the employer was held to be erroneous.
[…]”
(emphasis supplied)
22. In light of the law laid down by the Hon’ble Supreme Court, the
initial question to be examined is whether the petitioner discharged her
burden of proving that she was in continuous employment for at least 240
days in the year preceding her date of termination.
23. The Ld. Labour Court observed that the petitioner had
categorically stated during her cross examination that she was not in
possession of any document to show that she was employed with the
th
management prior to 29 November, 2012 (which is the date on which
she commenced her service with the respondent management according
to the respondent). Ld. Labour Court noted that the petitioner had failed
to examine any of her co-workers in support of her claim that she was
been working with the respondent management from 10, December,
th
2011 and not from 29 November, 2012. Furthermore, the petitioner in
her cross examination before the Ld. Labour Court as well as in the FIR
has admitted the factum of being paid according to entries made in her
Signature Not Verified

W.P.(C) 5369/2019 12 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

diary which reveal that she was being paid wages on a per piece basis
and was not being paid a monthly salary.
24. The petitioner in her cross-examination admitted that she was not
in possession of any document to reflect that was working with the
th
respondent management prior to 29 November, 2011 (the date of which
the respondent management submits that the petitioner’s service
commenced). To discharge the onus placed on her, the petitioner filed
diary entries maintained by her bearing Ex. WW-1/10 revealing that she
nd th
worked on some dates between 22 April, 2012 to 18 January, 2013
before the Ld. Labour Court. Respondent’s counsel drew this Court’s
attention to Ex. WW1/MX2, that is, three pages from the petitioner’s
th th
diary entry for the period between 29 November, 2012 and 18 January,
2013. These pages also form part of Ex. WW-1/10 referred to above filed
by the petitioner.
25. While petitioner’s counsel submits that diary entries for particular
nd th
dates from 22 April, 2012 to 18 January, 2013 reflect that the
petitioner worked for more than 240 days, counsel for the respondent
points towards major discrepancies in the format of entries before and
after November, 2012. In particular, respondent’s counsel submits that
only entries made post November, 2012 are countersigned by
management persons, and that entries made prior to November, 2012
appear to be fabricated.
26. This Court has perused the evidence on record. There are
substantial discrepancies in the format of the diary entries made pre and
post November, 2012, in that, only the latter entries are countersigned by
the management persons. Furthermore, even assuming that the entries
made prior to November, 2012 are genuine, they do not reflect that the
Signature Not Verified

W.P.(C) 5369/2019 13 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

petitioner was in continuous service with the respondent management for
240 days in the calendar year preceding the date of termination. At best,
the diary entries reflect that the petitioner only worked for particular
nd th
dates between 22 April, 2012 and 18 January, 2013, which amount to
approximately 70-80 days of intermittent service and on those particular
dates she was paid according to the number of garment pieces checked
by her.
27. Furthermore, although the petitioner in her statement of claim
submits that she was paid a monthly salary of Rs. 7, 000/- by the
respondent management, in her cross examination before the Ld. Labour
Court, as well as in her cross examination in the FIR, she admitted that
she was paid according to entries being made in the diary. Therefore, it
appears that the petitioner was being paid on a per piece basis, and was
working for the respondent management as and when she was called
upon to so. The petitioner failed to lead any evidence, such as a salary
slip, to show that she was paid a monthly salary.

28. This Court is cognizant of the fact that in cases involving daily
wage workers, the workers are often not in possession of any
documentation reflecting the nature and duration of duties performed by
them. However, no attempt was made by the petitioner to summon the
wage register/muster roll etc. that may be in possession of the respondent
management before the Ld. Labour Court. Additionally, as observed by
the Ld. Labour Court, none of the petitioner’s co-workers have been
examined by the petitioner. This Court is constrained to hold that a self-
serving statement is inadequate to discharge the onus of proving that the
worker was in continuous service of 240 days in the year preceding the
date of termination.
Signature Not Verified

W.P.(C) 5369/2019 14 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

29. In light of the aforesaid, I am of the considered opinion that, as
the petitioner is unable to prove that she was in continuous service of 240
days in the year preceding her date of termination, she cannot invoke the
benefit of Section 25F of the Act. Therefore, no further discussion on the
issue of whether the petitioner was illegally terminated is necessary in
the present case.
30. Notwithstanding the above, it is relevant to add, on the issue of
abandonment of services/illegal termination, that the petitioner has made
several self-contradicting statements in this regard as well. In her petition
before this Court, as well as the FIR, she states that she visited the
respondent management on multiple occasions after her alleged
th
termination on 18 January, 2013 for collecting her dues. However, these
assertions are conspicuously absent from the statement of claim filed
before the Ld. Labour Court, wherein the petitioner has only made a bald
assertion of having visited the respondent management ‘regularly’ for
reinstatement. What drew the attention of this Court was the statement
made by the petitioner during her cross examination before the Ld.
Labour Court. On being pointedly asked whether she visited the
th
respondent management after 18 January, 2013, the petitioner admitted
th
to never having visited the respondent management after 18 January,
2013. Furthermore, as observed by the Ld. Labour Court, a perusal of the
FIR reflects that the petitioner herself communicated her desire to
th
abandon service to the owner, Praveen Jain, on 18 January, 2013.
Therefore, it appears that the petitioner, intended to, and did in fact,
abandon the services of the respondent management.
31. Notably, respondent’s counsel has also directed our attention
th
towards judgment dated 11 March, 2016 passed by the Ld. Mahila
Signature Not Verified

W.P.(C) 5369/2019 15 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55

Court, East District, Karkardoma Courts, Delhi in the FIR, whereby
Rachit, the nephew of the management owner, has been acquitted. As
regards her allegation of sexual harassment, needless to say she can
exercise her rights and remedies in accordance with law.
32. In view of the above discussion, it cannot be said that the findings
of the Ld. Labour Court suffer from any inherent illegality, jurisdictional
error, or perversity, so as to justify interference by this Court, in exercise
of the limited jurisdiction conferred under Article 226 of the Constitution
of India, 1950 in labour matters. I find no reason to differ with the finding
of the Ld. Labour Court, insofar as it held that the petitioner was unable
to discharge the initial burden of proving that she was in continuous
service for 240 days in the year preceding the date of her alleged
termination. The impugned award is, therefore, upheld.
33. Accordingly, the present Writ Petition is dismissed, along with
applications, if any.

(ANISH DAYAL)
JUDGE
DECEMBER 11, 2023/RK





Signature Not Verified

W.P.(C) 5369/2019 16 of 16

Digitally Signed
By:MANISH KUMAR
Signing Date:12.12.2023
16:52:55