Delhi District Court
Harsh Narayan Tiwari vs M/S A P Inida on 13 March, 2026
IN THE COURT OF Dr. SURENDER MOHIT SINGH
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LIR No. 904/24
CNR No. DLCT13-004990-2024
In the matter of:
Sh. Harsh Narayan Tiwari
S/o Sh. Ram Nath,
R/o B-298, Mazdoor Camp,
Okhla, Ph-II, New Delhi-110020.
Through:
Sh. Ajay Pal Singh, AR,
All India General Kamgar Union,
U-90, Shakarpur, Delhi-110092.
...Workman
Versus
1.M/s A.P. India, D-3/4, Okhla, Ph-II, New Delhi-110020.
2. M/s Brij Protection Pvt. Ltd.
Brij House, A-1, Aali Extn., Sarita Vihar, New Delhi-110076.
...Managements
Date of Institution : 27.07.2024
Date of Award : 13.03.2026
AWAR D
1. Reference under Section 10(1)(c) read with Section 12(5) of the Industrial Disputes Act, 1947 has been received from Deputy Labour Commissioner, South-East District, Labour Department, Govt. of NCT of Delhi, Labour Welfare Centre, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi-110019 setting out following dispute for adjudication by the Court:
LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 1/14 "Whether the services of workman Sh. Harsh Narayan Tiwari, s/o Sh. Ram Nath, aged_ years, mobile no.9910744827 have been terminated illegally and/or unjustifiably by the management in disguise retrenchment; and if so, to what relief is he entitled and what directions are necessary in this respect?"
2. The present industrial dispute arises out of the alleged illegal termination of the services of the claimant by the management. The claimant alleged that he was appointed by the management no.2 and posted at the site of management no.1. He was working with the management on the post of "Security Guard" since 01.01.2014 and his last drawn salary was Rs.10,500/- p.m. Management did not provide legal entitlements and benefits like overtime dues, leave, festival leave, salary slip, ESIC, PF etc. to him. During the course of the employment, the management obtained his signature on some blank papers and vouchers for the purpose of PF and ESIC. Claimant used to perform 4 hours overtime daily but the management did not pay his overtime dues. Claimant demanded his earned wages which was withhold by the management, due to this, management became annoyed and transferred him in their office from the site of management no.1 where claimant worked till 20.04.2021. Management did not pay the wages to him for several months on the pretext of covid-19 and terminated his services on 10.12.2021. Claimant approached the management numerous times requesting to take him back on duties, however, management did not do so. On 27.12.2021, he served a demand notice to the management but management did not pay any heed LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 2/14 to it. Subsequently, he approached the conciliation officer but no settlement was arrived. Claimant alleges that he is unemployed since the date of termination and prayed for reinstatement in service with full back wages with other consequential benefits.
3. Management no.1 i.e. M/s A.P. India filed written statement contending that there exist no employer-employee relationship between management no.1 and workman. There was a verbal agreement/contract between management no.1 and management no.2 for providing four security guards to management no.1 w.e.f 01.07.2017 to 31.01.2021 for which the management no.1 has paid all the dues/payments for the same. Workman was employed by management no.2 as security guard and he was receiving the salary from the management no.2 every month. No demand notice was ever served upon management no.1. It is prayed that present claim be dismissed.
4. Management no.2 got served on 15.10.2024, however, neither WS has been filed nor any one appeared on behalf of management no.2 despite giving opportunities and was proceeded as ex-parte vide order dated 06.12.2024.
5. Claimant chooses not to file rejoinder despite giving opportunity. After completion of pleadings following issues were settled on 06.12.2024:
1. Whether the services of workman have been terminated illegally and/or unjustifiably by the management in disguise retrenchment? OPW
2. Whether the workman has worked continuously for 240 days in the year preceding termination of service? OPW
3. Whether there exists no employer-employee relationship between workman and management LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 3/14 no.1? OPM-1.
4. Relief.
6. Mr. Harsh Narayan Tiwari examined himself as WW1 and tendered his evidence by way of affidavit Ex.WW1/A and relied upon following documents:
Sr. No. Identification Description Mark
1. Ex.WW1/1 Office copy of demand notice dated 27.12.2021.
2. Ex.WW1/2 Original postal receipt.
3. Ex.WW1/3 (OSR) Photocopy of movement order issued by management no.2.
4. Mark X1 to Mark Photocopies of cheques X6 issued to workman by management no.2.
7. Claimant was cross-examined at length by AR for the management no.1. Relevant extract of his cross-examination are as under:
"It is correct that I was appointed by management no.2. M-2 sometimes used to pay my wages by cash, by cheque and on vouchers. The cheques Mark X1 to Mark X6 are on account of my wages. The letter Ex.WW1/3 is on account of information for change of security guard Sh. Devender Kumar. I do not know whether the demand notice Ex.WW1/1 was served to the M-1 or not. It is correct that the M-2 was my employer. It is correct that I never received any salary from M-1... Vol. Management no.2 sent me to another location occasionally and not regularly and after 2017, I am working at the site of M-1... Vol. M-2 used to pay my salary but I worked at the site of M-1. It is correct that M-1 had given a contract for supply of security guard and M-1 used to make the payment of security LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 4/14 guard to the M-2.
At this stage, AR for the management wants to put some documents pertaining to agreement between M-1 and M-2 and to contradict the witness.
AR for the workman has objected to contradict the witness from the agreement between M-1 and M-2. Objection allowed as witness has no concern with agreement between M-1 and M-2.
It is correct that I have not placed on record the attendance register managed by M-1 as alleged by me. Management no.2 used to pay salary to me and I do not know about agreement between M-1 and M-2 regarding salary payment... It is correct that only M-2 has to pay my dues with full back wages and reinstate me and other consequent benefits".
8. Thereafter, on 03.06.2025, WE was closed and matter was listed for ME.
9. Management no.1 examined Mr. Ashwani Chopra as MW1 who tendered his evidence by way of affidavit Ex.MW1/A and relied upon following documents:
Sr. No. Identification Description Mark
1. Ex.MW1/1 Photocopies of (colly 4 to 71) invoices and ledger.
(OSR)
2. Ex.MW1/2 Affidavit of Mr. Laxmi Narayan Sharma.
3. Ex.MW1/3 Letter dated (colly) 09.06.2025 issued by management no.1 to management no.2 along with its postal receipt.
LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 5/14
10. Relevant extract of his cross-examination are as under:
"I am aware about the contents of my evidence affidavit. It is correct that Ex.MW1/1 colly does not bears the name and signature of the workman.
Q. Is it correct that documents Ex.MW1/1 colly has no concern with the workman? A. there is no specific name of the workman but the said invoices are in respect of four guards provided by M/s brij protection pvt ltd.(M-2)...
I do not know whether Mr. Harsh Narayan Tiwari performed as guard with the management no.1 as guard was changing from time to time by M-2...
Q. I put it to you that M-1 used to guide the workman to do his work at the site. What you have to say?
A. we have informed to M-2 to perform the duty as guard and M-2 used to get the work from the guard.
Q. How many security guards were working in M-1?
A. M-2 provided 4 security guards to M-1. Q. I put it to you that M-1 used to maintain the attendance register of the workman which used to keep at the gate?
A. No."
11. Thereafter on 19.07.2025, ME qua management no.1 stands closed and matter was listed for final arguments.
12. Management no.2 did not lead any evidence as it was already proceeded as ex-parte vide order dated 06.12.2024.
13. Final arguments heard.
14. AR for both the parties have addressed their submissions/arguments by adverting to pleadings and testimony LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 6/14 in support of their respective contentions.
15. I have minutely perused record and considered their rival submissions.
My issuewise findings are as under:-
Issue no.3 Whether there exists no employer-employee relationship between workman and management no.1? OPM-1.
16. It is well settled principle of law that a person who sets up a plea of existence of employer-employee relation is required to adduce cogent evidence for discharging the burden as held by Hon'ble Supreme Court of India in ' Workmen of Nilgiri Co-operative Marketing Society Vs. State of Tamil Nadu and Ors. (2004) 3 SCC 514'. Paras 47 to 49 of the judgment of Hon'ble Apex Court being relevant are extracted below:
47. It is a well-settled principle of law that the person who sets up a plea of existence of relationship of employer and employee, the burden would be upon him.
48. In N.C. John Vs. Secy, Thodupuzha Taluk Shop and Commercial Establishment Workers' Union, the Kerala High Court held:
The burden of proof being on the workmen to establish the employer-employee relationship an adverse inference cannot be drawn against the employer that if he were to produce books of accounts they would have proved employer-employee relationship.
49. In Swapan Das Gupta Vs. The First Labour Court of West Bengal it has been held:
LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 7/14 Where a person asserts that he was a workmen of the Company, and it is denied by the Company, it is for him to prove the fact. It is not for the Company to prove that he was not an employee of the Company but of some other person.
17. Scope and ambit of Section 2(oo), Section 25B and Section 25F of I.D Act was considered by Hon'ble Supreme Court of India in para 6 of judgment in " Surendernagar District Panchayat Vs. Dahyabhai Amarsinh" (2005) 8 SCC 750 for observing that claimant claiming protection under Section 25F of I.D. Act has to prove (i) existence of employer-employee relation; (ii) employment as claimant within the meaning of Section 2(s) of I.D. Act; (iii) establishment being an industry under Section 2(j) of I.D. Act AND (iv) continuous service under the employer as defined under Section 25B of I.D. Act.
18. Upon perusal of the aforementioned judgments, it can be summarily stated that the position with regard to the burden of proving the relationship of employee-employer is no longer res integra, the said burden primarily rests upon the person who asserts its existence, but the degree of proof which is required to be established, varies on a case to case basis. Existence of Employer-Employee Relationship
19. The contention of M-1 is that no employer-employee relationship exist between claimant and M-1, hence, claimant is not entitled to seek relief against it.
20. The law relating to employer-employee relationship is well explained by Hon'ble High Court of Delhi in " Airport Authority of India Vs. A.S. Yadav and Ors., W.P. (C) 5168/2005 LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 8/14 and CM No.47971/2029" wherein the Hon'ble High Court has made reference to paragraphs 37 to 39 of the decision in "International Airport Authority of India V. International Cargo Workers' Union and Another, (2009) 13SCC 374" which reads as under :-
"37. The industrial adjudicator can grant the relief sought if it finds that contract between the principal employer and the contractor is sham, nominal and merely a camouflage to deny employment benefits to the employer and that there is in fact a direct employment, by applying tests like: who pays the salary; who has the power to remove/dismiss from service or initiate disciplinary action; who has direction and employee the way in which the work should be done, in short, who has direction and control over the employee. But where there is no notification under Section 10 of the CLRA Act and where it is not proved in the industrial adjudication that the contract was a sham/nominal and camouflage, then the question of directing the principal employer to absorb or regularize the services of the contract labour does not arise.
38. The tests that are applies to find out whether a person is an employee or an independent contractor may not automatically apply in finding out whether the contract labour agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for supply of labour, necessarily, the labour supplied by the contractor will work under the LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 9/14 directions, supervision and control of the principal employer, if the salary is paid by a contractor, if the right to regulate the employment is with the contractor and the ultimate supervision and control lies with the contractor.
39. The principal employer only controls and directs the work to be done by a contract labour, when such labour is assigned/allotted/allotted/sent to him. But it is the contractor as employer, who choose whether the worker is to be assigned/allotted to the principal employer or used otherwise. In short, worker being the employee of the contractor, the ultimate supervision and control lies with the contractor as he decides where the employee will work and how long he will work and subject to what conditions. Only when the contractor assigns/sends the worker to work under the principal employer, the worker works under the supervision and control of the principal employer but that is secondary control. The primary control is with the contractor."
21. Relying upon Airport Authority case (Supra), in a dispute of existence of employer-employee relationship, the court adjudicating the dispute is required to examine as to (1) who pays salary to the claimant, (2) who possesses the power to initiate disciplinary action against him and (3) whether the alleged employer has any control and supervision over the claimant claimant.
22. Further in 'Balwant Rai Saluja and Another Vs. Air India Limited and Others (2014 (9) SCC 407)' the Hon'ble LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 10/14 Supreme Court held as under :-
"65. Thus, it can be concluded that the relevant factors to be taken into consideration to establish an employer- employee relationship would include, inter alia:"
"(i) who appoints the workers; (ii) who pays the salary/remuneration; (iii) who has the authority to dismiss; (iv) who can take disciplinary action; (v) whether there is continuity of service;
and (vi) extent of control and supervision i.e. whether there exists complete control and supervision."
23. In order to prove employer-employee relationship, claimant relied upon his own testimony, demand notice (Ex. WW-1/1), postal receipt (Ex.WW-1/2), photocopy of movement order issued by management no.2 (Ex.WW1/3) and photocopies of cheques issued to workman by management no.2 (Mark X-1 to Mark X-6).
24. During cross-examination, claimant/WW1 admitted that M-1 had given a contract to M-2 for the supply of security guards and that M-1 used to make payments to M-2 for these services but denied knowledge regarding the specific agreement between M-1 and M-2.
25. WW1 further admitted that he was appointed by M-2 and M-2 was his employer. He deposed that M-2 paid his salary who sometimes paid his wages in cash, by cheque and vouchers. He specifically identified cheques (Mark X1 to X6) as being payments towards his wages.
LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 11/14
26. WW1 also deposed that he performed his duties at M-1's site but he never received any salary from M-1. WW-1/claimant explicitly admitted that only M-2 is liable to pay his dues with full back wages and to reinstate him with other consequent benefits.
27. In the present case, the evidence on record clearly shows that the claimant was employed by management no.2 and deputed to work at management no.1's site. The terms of employment including salary were managed by management no.2. Management no.1 did not issue any appointment letter, salary slip, I-Card or other employment related documents to the claimant.
28. The instructions issued by the employees of management no.1 at the workplace (M-1's site) does not amount to control and supervision as held by Hon'ble High Court of Delhi in Airports Authority of India case (Supra). The ultimate control and supervision was with the M-2.
29. There is no direct contractual relationship between the claimant and management no.1, therefor, no employer-employee relationship exist between claimant and management no.1.
30. Since there is no employer-employee relationship exist between claimant and management no.1, the claim petition of claimant is not maintainable against management no.1.
31. Accordingly, issues no.3 is decided in favour of management no.1 and against the claimant. Issue no.2- Whether the workman has worked continuously for 240 days in the year preceding termination of service? OPW LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 12/14
32. The continuous employment of the workman for 240 days in the preceding year prior to termination is not disputed by managements. Hence, this issue is struck of. Issue no.1- Whether the services of workman have been terminated illegally and/or unjustifiably by the management in disguise retrenchment? OPW
33. The onus to prove this issue was upon the claimant and claimant has already proved the relationship of employer- employee between him and management no.2 and as the testimony of claimant/WW-1 and the documents relied upon by the claimant being unassailed are deemed to be admitted by the management. Hence, having proved himself as an employee of management no.2, and the fact that the management no.2 has chosen not to contest the present statement of claim, the court has come to conclusion that the management no.2 has accepted the contentions made by the claimant by virtue of the present proceedings.
34. In these circumstances, the court hereby hold that indeed the services of claimant were terminated illegally/unjustifiably by the management no.2. Furthermore, there is no contest on the part of the management no.2 w.r.t contention of the claimant that he remained unemployed from the date of his termination till date.
35. It is a well settled law that reinstatement with full back wages is not to be granted automatically in case of illegal termination and Labour Court can mould the relief by granting lump sum compensation in lieu of reinstatement and back wages LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 13/14 as held in (i) Municipal Council Sujanpur Vs. Surinder Kumar 2006 LLR 662; (ii) Nehru Yuva Kendra Sanghathan Vs. Union of India & Ors. 2000 IV AD (Delhi) 709; (iii) Vinod Kumar & Ors. Vs. Salvan Public School & Ors. W.P.(C) 5820 Dated 17.11.2014.
36. Accordingly, I deem it appropriate to grant compensation to the workman instead of reinstatement with full back wages. Upon considering the length of service and last drawn wage of workman i.e. Rs.10,500/-, a lump sum amount of Rs.3,21,000/- is awarded to workman as compensation.
37. Amount of compensation be paid to claimant within two months from the date of award failing which management no.2 shall also pay interest @ 6% per annum on aforesaid amount from the date of award till the date of realization.
38. Reference stands answered in aforesaid terms.
39. Copy of award be sent to Deputy Labour Commissioner, South-East District, Labour Department, Govt. of NCT of Delhi, Labour Welfare Centre, Bal Mukund Khand, Giri Nagar, Kalkaji, New Delhi-110019 for publication.
40. Judicial file be consigned to record room.
ANNOUNCED IN THE OPEN COURT
on 13.03.2026
Digitally signed by
SURENDER SURENDER
MOHIT MOHIT SINGH
Date: 2026.03.20
SINGH
(Dr. Surender Mohit Singh)
17:55:43 +0530
District Judge,POLC-VIII
RADC/New Delhi
LIR 904/24 HARSH NARAYAN TIWARI VS. M/S A.P. INDIA 14/14