Delhi District Court
Naseema Khatoon vs M/S Impact Promotions on 8 January, 2025
IN THE COURT OF MS. ARCHANA BENIWAL,
DISTRICT JUDGE/ POLC-V,
ROUSE AVENUE COURT COMPLEX,
NEW DELHI
CNR No. DLCT13-004116-2021
LIR No : 2129/21
In the matter of :
Smt. Naseema Khatoon,
W/o Late Sh. Munna Khan,
Mobile No. 7701816695,
R/o WZ-856, Naraina Village,
New Delhi-28.
...Workwoman/Claimant
Versus
M/s Impact Promotions,
B-97/1, Industrial Area, Phase-I,
Naraina, New Delhi.
......Management.
Date of Institution : 01.11.2021
Date of decision : 08.01.2025
JUDGMENT
PART-A REFERENCE The Joint Labour Commissioner, Govt of NCT, Delhi while LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 1/20 exercising his power U/s 10 (1) (c) and 12 (5) of the Industrial Disputes Act, 1947, (hereinafter referred to as 'the Act'), vide letter no. No.F24(300)/R/433/SWD/Lab./1020, dated 23.09.2021 has sent the following reference to this court for adjudication :-
"Whether the services of Smt. Naseema Khatoon (Age-32) W/o Late Sh. Munna Khan, Mobile No.-7701816695 have been terminated illegally and/or unjustifiably by the management; and if so, to what relief is she entitled to and what directions are necessary in this respect?"
PART-B STATEMENT OF CLAIM
1. It is submitted by workwoman in her statement of claim that she was working with the management for the last 08 years as 'Helper' and her last drawn wages were Rs.9,500/- per month.
2. It is further claimed that she was working diligently and honestly and that she gave no cause for complaint to the management.
3. It is further claimed that the management did not provide her any legal and statutory benefits such as attendance register, wages slip, leave book, bonus, joining letter, ESI and PF etc. It is further claimed that she demanded continuously for above-mentioned legal benefits from management, but they did not pay any heed to the same.
LIR No. 2129/21Naseema Khatoon Vs. M/s Impact Promotions 2/20
4. It is further claimed that the management took her signatures on blank papers and vouchers etc. and illegally terminated her services on 25.02.2020 without paying the salary for the month of September to October, 2019 as well as the leave dues, compensation, bonus, notice pay and other dues.
5. It is further claimed that she sent a demand notice through regd. post on 16.10.2020 to the management with the demand of reinstatement, back wages and other dues but the management neither replied to the said demand letter.
6. It is further claimed that she filed a complaint before the Assistant Labour Commissioner, Hari Nagar, New Delhi. The management neither appeared before the Labour Commissioner and nor reinstated her.
7. It is further claimed that due to non-cordial attitude of the management during conciliation proceedings before Assistant Labour Commissioner, the Labour Inspector submitted the failure report. Thereafter, reference was sent to this Court for adjudication.
8. It is further claimed that she was surviving without any employment and had no job despite making several efforts.
9. It is prayed by workwoman that she be reinstated in her previous job with the management with back-wages with all LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 3/20 consequential benefits.
PART-C MANAGEMENT'S STAND/REPLY
10. It is submitted by the management that the service of the claimant was unsatisfactory. It is further submitted that worklady had joined the management on 01.11.2018 and she had not completed 240 days of continuous service. Prior to 01.11.2018, worklady had also served for the management from 02.01.2017 to 31.01.2018. The management further denied that they had not terminated the worklady from job but the worklady was always absenting herself without any justification. The worklady served for only 16 days in the month of September, 2019 and remained absent throughout from October, 2019 to January, 2020. It is further submitted that the worklady turned on 31.01.2020 and tendered her resignation. It is further submitted that no demand notice dated 16.10.2020 had ever served upon the management by the worklady. Therefore, she is not entitled to any relief. It is further stated that the claimant is trying to harass the management to extract money.
11. In its written statement, the management further denied the averments made by worklady in her statement of claim.
PART-D REJOINDER LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 4/20
12. It was submitted on behalf of worklady that she did not wish to file rejoinder. Hence, the opportunity to file rejoinder to the written statement of management was closed to worklady vide order dated 22.08.2023.
PART-E ISSUES
13. From the pleadings of the parties, the Court, vide its order dated 22.08.2023 had framed the following issues for trial, reading as under : -
1.) Whether the workman was in continuous service for 240 days in the previous year before the termination of services? OPW
2.) Whether the workman had resigned voluntarily from the services on 31.01.2020? OPM
3.) Whether the services of the workman have been terminated illegally and/or unjustifiably by the management? OPW
4.) Relief.
PART-F CLAIMANT'S EVIDENCE
14. In support of her claim, claimant examined herself on 09.08.2024 as WW1 and deposed along the lines of statement of claim filed by her and also relied upon the following documents in support of her case:
a) Copy of complaint filed before Assistant Labour Commissioner dated 18.02.2020 vide Ex.WW1/1.
b) The copy of demand letter dated 15.10.2020 vide Ex.WW1/2.LIR No. 2129/21
Naseema Khatoon Vs. M/s Impact Promotions 5/20
c) Original Postal receipt vide Ex.WW1/3.
d) Copy of statement of claim filed before the Assistant Labour Commissioner vide Ex.WW1/4.
e) Photocopy of salary sheet for the month of February, 2019 which is mentioned in evidence affidavit as Ex.WW1/5 is now de-exhibited and now marked as Mark-A.
f) Copy of bank passbook vide Ex.WW1/6 (OSR).
15. During her cross-examination, the workwoman/ WW-1 deposed that she could not read Hindi language. She further deposed that Sh. Surender Beniwal, proprietor of the management, terminated her services on 24.11.2019 at 01:00 PM.
16. She further deposed that she had never filed any claim before the Conciliation Officer alleging her date of termination as 24.11.2019. She admitted that she had never raised any industrial dispute challenging her date of termination as 24.11.2019.
17. She further deposed that The Khan Fashion situated at Naraina belongs to her father Mohd. Hira Khan and she used to sit there for 1-1.5 hrs. in order to help her father during lunch period. She further deposed that she was staying with her father for the last 15 years. She further deposed that after her termination, she started helping her father in his shop.
LIR No. 2129/21Naseema Khatoon Vs. M/s Impact Promotions 6/20
18. She further deposed that she was unemployed and could not find any suitable job despite efforts. She could not remember the name of the organization situated at Mayapuri where she tried to search for job around 20-25 days back. She could not remember as to when she visited to search for job prior to 25 days back.
19. She further deposed that she was having a bank account in Syndicate Bank, Naraina Branch and apart from that she was not having any other bank account. She further deposed that her mobile no. is 7701816695.
20. She refused to produce the bank statement/ passbook of the aforesaid account from 24.11.2019 i.e., the date of termination till date. She denied that she was deliberately refusing to bring the bank statement as it shall prove her gainful employment. She further deposed that she was not using either Paytm or GooglePay on her mobile no. 7701816695. She denied that that she was having business profile associated with her mobile number or using GooglePay on her number since April, 2024.
21. She denied that she had not worked for 240 days preceding her date of termination. She admitted that she had been working for the management since 01.11.2018 as helper. She further deposed that she had been working for last 8 years. She denied that she had submitted resignation on 31.01.2020. She further denied that she had raised false claim against the LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 7/20 management. Thereafter, upon statement of workwoman, workman's evidence was closed.
PART-G MANAGEMENT EVIDENCE
22. On 09.08.2024, Ld. counsel/AR for the management stated that the management did not wish to lead any evidence in the matter. On his statement, the opportunity to lead evidence was closed to the management.
PART-H FINDINGS/CONCLUSION
23. After considering the claim, reply, documents and the evidence led on record and also the submissions, made by the Ld. Counsel for the workwoman and Ld. AR for the management, the issues are decided as under:-
24. Issue No. 1:- Whether the workman was in continuous service for 240 days in the previous year before the termination of services? OPW This is an issue, to the effect, as to whether the workwoman has not completed 240 days of her service and burden to prove this issue was upon the workwoman. As per the stand taken by the workwoman, she had been employed by the management as a helper since 01.11.2018 (As per her cross-examination) and the management had terminated her services on 24.11.2019 without any reason, though she has stated in her LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 8/20 statement of claim and evidence affidavit that her services were terminated by the management on 25.02.2020. On the other hand, the management has countered the stand of the workwoman stating that the workwoman was employed with the management on 01.11.2018 and previously from 02.01.2017 to 31.01.2018. The workwoman worked for only 16 days in the month of September, 2019 and remained absent thereafter. On 31.01.2020, she tendered her resignation. Thus, she had worked with them from 01.11.2018 to September, 2019 i.e., only for a period less than ten months. It is stated by the management that the workwoman had not completed 240 days of continuous service under the management during the period of 12 calendar months preceding the date of termination as claimed by the workwoman.
25. In order to decide the issue raised, it is first necessary to consider the scope and ambit of the relevant provisions, namely Section 2 (oo), Section 25B and Section 25F of the Industrial Disputes Act. The appropriate provisions are reproduced below:
Section 2 (oo) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include -
a) voluntary retirement of the workman; or
b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 9/20 in that behalf; or bb) termination of the service of a workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
c) termination of the service of a workman on the ground of continued ill-health;
Section 25B: Definition of Continuous Service:- For the purposes of this Chapter -
(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 sickness or authorized leave or an accident or as strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer --
(a) for 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;
LIR No. 2129/21Naseema Khatoon Vs. M/s Impact Promotions 10/20
(b) for a period of six months, if the workman, during a period of six calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer not less than --
(i) ninety five days, in the case of a workman employed below ground in a mine; and
(ii) one hundred and twenty five days, in any other case. Explanation- For the purposes of clause (2), the number of days on which a workman has actually worked under an employer shall Include the days on which --
(i) he has been laid-off under an agreement or as permitted by Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), or under this Act or under any other law applicable to the industrial establishment;
(ii) he has been on leave with full wages, earned in the previous years ;
(iii) he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment ; and
(iv) in the case of a female, she has been on maternity leave; so however, that the total period of such maternity leave does not exceed twelve weeks.
Section 25F - Conditions precedent to retrenchment of workmen: - No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until --
(a) the workman has been given one month's notice in writing LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 11/20 indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice ;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette. As per Section 25F, no workman who is in continuous service for not less than one year under an employer shall be retrenched by that employer unless conditions laid therein are fulfilled. The retrenchment is defined in Clause (oo) of Section 2 of the Industrial Disputes Act 14 of 1947 (hereinafter referred to as Act).
25. Under the definition termination of the service of a workman by the employer by any reason whatsoever, otherwise than, as a punishment, by way of disciplinary action, would constitute retrenchment except in cases accepted in the Section itself, they are :- i) a voluntary retirement of a workman; ii) retirement of a workman on reaching the age of superannuation; iii) termination of the service of a workman as a result of non-renewal of the contract of employment; or (iv) termination of the service on the ground of continued ill- health of the workman. Unless these reasons are existed and proved, termination by the employer of the service of a LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 12/20 workman for any reason, would constitute retrenchment.
26. Therefore, if the employer is to retrench the workmen employed in his industry who is in continuous service has to follow the provisions of Section 25F of the Act. To attract provisions of Section 25F, the workman claiming protection under it, has to prove that there exists relationship of employer and employee;that he is a workman within the meaning of Section 2(s) of the Act; the establishment in which he is employed is an industry within the meaning of the Act and he must have put in not less than one year of continuous service as defined by Section 25B under the employer. These conditions are cumulative. If any of these conditions are missing the provisions of Section 25F will not attract. To get relief from the court the workman has to establish that he has right to continue in service and that his service has been terminated without complying with the provisions of Section 25F of the Act.
The Section postulates three conditions to be fulfilled by an employer for getting a valid retrenchment, namely :-
i) one month's clear notice in writing indicating the reasons for retrenchment or that the workman has been paid wages for the period of notice in lieu of such notice;
ii) payment of retrenchment compensation which shall be equivalent to 15 days average pay for every completed year of continuous service or any part LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 13/20 thereof, in excess of six months;
iii) a notice to the appropriate Government in the prescribed manner.
27. To attract the provisions of Section 25F, one of the condition required is that the workman is employed in any industry for a continuous period which would not be not less than one year. Section 25B of the Act defines continuous service for the purposes of Chapter V-A "Lay-off and Retrenchment". The purport of this Section is that if a workman has put in an uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lock-out or cessation of work, that is not due to any fault on the part of the workman, shall be said to be a continuous service, for that period. Thus the workmen shall be said to be in continuous service for one year i.e., 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25B. However, the workmen must have been in service during the period, i.e., not only on the date when he actually worked but also on the days he could not work under the circumstances set out in Sub- Section (1). The workmen must be in the employment of the employer concerned on the days he has actually worked but also on the days on which he has not worked. The import of Sub Section(1) of Section 25B is that the workmen should be in the employment of the employer for the continuous, uninterrupted period for one year except the period the absence LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 14/20 is permissible as mentioned herein above. Sub-section (2) of Section 25B introduces the fiction to the effect that even if the workman is not in continuous service within the meaning of Clause (i) of Section 25-B for the period of one year or six months, he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clause (a) and (b) of Sub-s(2). By the legal fiction of Sub-s2(a) (i), the workmen shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the Section postulate that if the workmen has put in at least 240 days with his employer, immediately prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25F.
28. It has been held by the Hon'ble Supreme Court of India in K.V Anil Mithra and Anr. v. Sree Sankracharya University of Sanskrit and Anr.1 that "The scheme of the Act 1947 contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination and if the employer wants to terminate the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of Section 25F of the Act of 1947.
It further held that "The salient fact which has to be considered is whether the employee who has been retrenched is a 1 CIVIL APPEAL NO(S). 9067 OF 2014 DoD 27.10.2021 LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 15/20 workman under Section 2(s) and is employed in an industry defined under Section 2(j) and who has been in continuous service for more than one year can be retrenched provided the employer complies with the twin conditions provided under clauses(a) and (b) of Section 25F of the Act 1947 before the retrenchment is given effect to. The nature of employment and the manner in which the workman has been employed is not significant for consideration while invoking the mandatory compliance of Section 25F of the Act 1947.
29. Coming to the question of burden of proof as to the completion of 240 days of continuous work, the law was laid down in Manager, Reserve Bank of India Vs. S. Mani (2005) 5 SCC 100, wherein it was held that the initial burden of establishment the factum of continuous work for 240 days in a year was on the workmen.
30. Thus, in the instant case, it was the workwoman who was required to prove that she had worked for 240 days continuously in the preceding year. It is the case of the workwoman that she had joined the management on 01.11.2018 and had worked with them till 25.02.2020, when her job was illegally terminated by the management. However, she has not filed any documentary proof to show that she had worked for 240 days continuously in the preceding year before her termination on 25.02.2020. She has filed only a copy of demand notice sent to the management vide Ex.WW1/2, postal receipt vide Ex.WW1/3 and photocopy of the salary sheet for the month of February, 2019 vide Mark-A. As per the passbook vide Ex.WW1/6, only payment of salary for the LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 16/20 month of two months i.e., March and April, 2018 is reflected therein. None of these documents prove the number of days worked by her with the management.
31. Thus, there is no evidence on record to prove that the workwoman had actually worked for 240 days in the year preceding his termination.
32. In Municipal Corporation, Faridabad Vs. Siri Niwas (2004) 8 SCC 195, it was noticed that neither the management nor the workman cared to produce the muster roll and that the employee did not even summon the muster roll although the management had also failed to produce them. The court held that the employee had not produced any evidence before the court in support of his contention of having complied with the requirement of section 25-B ID Act, that apart from examining himself in support of his contention, the employee did not produce or call for any document from the office of the management including the muster roll, and that apart from muster rolls, the employee did not produce the offer of employment or evidence concerning remuneration received by him for working during the aforementioned period. In the case of Range Forest Officer Vs. S.T. Hadimani (2002) 3 SCC 25, the court held that it was for the claimant to lead evidence to show that he had worked for 240 days in the year preceding his termination, that filing of an affidavit is only his own statement in his own favour, which cannot be recorded as sufficient evidence for any court or tribunal to come to the LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 17/20 conclusion that the workman had worked for 240 days in a year. The court found that there was no proof of receipt of salary or wages for 240 days, that the letter of appointment was not produced, that the letter of termination was not produced on record. The same was reiterated in the case of Rajasthan State Ganganagar S. Mills Ltd. Vs. State of Rajasthan (2004) 8 SCC 161 and in the case of M.P Electricity Board Vs. Hariram (2004) 8 SCC 246.
33. In the instant case also, no proof of receipt of salary or wages or any record to prove that the workwoman had actually worked with the employer for not less than 240 days during the period of 12 calender months preceding the date of termination has been produced by the workwoman. She has not examined any co-worker. It is improbable that the workwoman who claims to have worked with the management for such a long period would not possess any documentary evidence to prove the nature of her engagement and the period of work she had undertaken with her employer. Therefore, in the opinion of this court, the workwoman has failed to discharge his burden that she was in the employment for 240 days during the preceding 12 month from the date of termination of her service.
34. Therefore, in view of the provisions of the ID Act discussed above and the settled law on the subject, to get any relief under the Act, prima facie, it must be shown by the workwoman that she had completed 240 days of work in the preceding 12 months from the alleged date of termination. In LIR No. 2129/21 Naseema Khatoon Vs. M/s Impact Promotions 18/20 the present case, the workwoman has not proved that she had worked for 240 days in the preceding 12 months from the alleged date of termination. Hence, the workwoman has no claim under the Act.
In view of the above findings, the above issue is decided against the workwoman.
35. ISSUE NO. 2 & 3. These issues pertain to whether the workwoman had herself resigned from the job or her job was illegally terminated by the management. Since, it has been held by the court in Issue No.1 that the workwoman has no claim under the Industrial Disputes Act, the Court is not required to go into the question of legality/illegality of the termination of her services, since the workwoman herself has failed to fulfil the condition precedent to attract the Provision of Section 25 (F) of ID Act. Hence, issue no. 2 and 3 are also decided against the workwoman.
36. Issue No. 4 : --
In view of the categorical findings, just return, as above on the issue no.1, 2 and 3, it is held that the workwoman is not entitled for any relief under the Act and her claim is liable to be dismissed. Hence, this Court dismisses the claim of the applicant/ workwoman.
37. Reference is answered accordingly.
LIR No. 2129/21Naseema Khatoon Vs. M/s Impact Promotions 19/20
38. Let copy of the award be sent to the appropriate Govt for its publication as per rules.
Digitally signed by ARCHANA ARCHANA Announced in the open Court BENIWAL BENIWAL Date:
2025.01.08 on 08.01.2025 15:55:54 +0530 (ARCHANA BENIWAL) DISTRICT JUDGE/ POLC-V, ROUSE AVENUE COURT COMPLEX NEW DELHI.LIR No. 2129/21
Naseema Khatoon Vs. M/s Impact Promotions 20/20