Delhi District Court
Gaurav Sharma vs M/S Infomax Management Services ... on 30 May, 2025
IN THE COURT OF Dr. SURENDER MOHIT SINGH
PRESIDING OFFICER: LABOUR COURT-08
ROUSE AVENUE DISTRICT COURTS: NEW DELHI
LIR No. 1538/21
CNR No. DLCT13-003018-2021
In the matter of:
Shri Gaurav Kumar
S/o Sh. Ramesh Chand,
R/o H.no. 355/1-B, Gajju
Katra Shahdara, Delhi-110032
... Workman
Versus
1. M/S Infomax Management Service (India) Pvt. Ltd.
Sh. Sanjeev Sarin, Director,
4-E/16-17, 3rd floor, Jhandewalan Extn., New Delhi-110055
2. M/S Digicom Management System Pvt. Ltd.,
Sh. Sanjeev Sarin, Director,
4-E/16-17, 3rd floor, Jhandewalan Extn., New Delhi-110055
...Managements
Date of Institution : 30.09.2021
Date of Award : 30.05.2025
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, Central District, Labour
Department, GNCT of Delhi, Employment Exchange Building,
PUSA , New Delhi setting out following dispute for adjudication
by the Court:
"Whether the services of workman Sh. Gaurav
Kumar, S/o Sh. Ramesh Chand, aged 29 years,
LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
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have been terminated illegally and/or
unjustifiably by the management; 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
managements. The claimant claims that he worked in the post of
"Field Executive" since 2011 with the management no.1 i.e. M/s
Infomax Mnagement Service (India) Pvt. Ltd and management
no.2 i.e. M/s Digicom Management System Pvt. Ltd. under Mr.
Sanjeev Sarin (common director of both managements), and no
appointment letter, minimum wages, ESI/PF slips, or legal
benefits were provided to him. He also claims that since
01.07.2015, his name was shown only in management no.2. He
also claims that his last drawn wages was Rs.13500/- p.m. He
claims that his services were illegally terminated on 15.07.2020
(post lock down) without notice, compensation or enquiry
violating section 25F of Industrial Disputes Act. He further
alleged that he served demand notice dated 20.10.2020 through
post to both the managements, however, the same was also not
complied by the managements. He also alleged that he filed
complaint before Conciliation Officer but matter was not
resolved.
3. It is also averred that he being unemployed since the
date of termination of service without any rhyme or reason, and
without any domestic enquiry is facing hardships and is entitled
to be reinstated with continuity of service and other
consequential benefits including full back wages.
LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
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4. Management no.1 i.e. M/s Infomax Management
Service (India) Pvt. Ltd has filed written statement contesting the
claim by disputing employer-employee relationship. It is prayed
that present claim is not maintainable and liable to be dismissed.
5. Management no.2 i.e. M/s Digicom Management
Systems Pvt. Ltd. has filed written statement and averred that it
never terminated the services of the workman rather the
workman had himself didn't turn up on his duties w.e.f.
01.05.2020. It is further averred that workman did not join back
duties despite offer by the management. It is prayed that claim be
dismissed.
6. After completion of pleadings, on 25.08.2022
following issues were settled:
(i) Whether services of workman Sh. Gaurav Sharma,
s/o Sh. Ramesh Chand, age- 43 years have been
terminated illegally and/or unjustifiably by the
management(s) on 15.07.2020? OPW
(ii) Whether statement of claim against respondent no.1
is liable to be dismissed in the absence of employer- employee relation? OPM-1
(iii) Whether services of workman were never terminated by respondent no.2 rather workman himself did not turn up and continued to remain absent from duty without prior intimation and/or permission w.e.f 01.05.2020? OPM-2
(iv) Relief
7. Claimant/Shri Gaurav Kumar has tendered his evidence by way of affidavit Ex.WW1/A and relying upon LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
3/15following documents:
Identification Mark Description
Ex.WW1/1 Office copy of demand notice
addressed to management
Ex.WW1/2 Original postal receipt w.r.t
demand notice dated
20.10.2020
Ex.WW1/3 Office copy of statement of
claim filed before Assistant
Labour Commissioner,
PUSA, New Delhi
Mark X (four pages) Photocopy of rejoinder filed
before Conciliation Officer,
PUSA, New Delhi
Ex.WW1/5 (OSR) Photocopy of office copy of
complaint dated 28.07.2020
made to Assistant Labour
Commissioner, Pusa, New
Delhi.
Mark A (colly) Photocopy of three cheques
bearing no.307177, 306542,
306848 for a sum of
Rs.13,638/- dated 31.01.2020,
Rs.13,938/- dated 30.11.2019,
and Rs. 14,538/- dated
31.12.2019 respectively
issued by management no.2.
LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
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8. WW1 was cross-examined at length by AR for managements. Relevant extract of cross-examination of WW1 are as under:
"It is correct that I have been working for management no.2 i.e. M/S Digicom Management Systems Pvt. Ltd. I have worked for the management only up to April, 2020 and never thereafter. I have visited the office of the management only from 28.04.2020 to 01.05.2020 and never thereafter".
"I am aware that the management offered me to join back on duty vide para 2 of their written statement. I did not went to join duty despite offer by the management. It is correct that the management offered me to join back on duty before Labour Inspector and before Conciliation officer. Vol. I did not join as the management did not offered me joining letter.
"It is correct that I have been working with the management no.2 since 01.07.2015. I have never tried to search for an employment."
9. Thereafter, on 09.05.2023, WE stands closed and matter was listed for ME.
10. Management no.1 has not led any evidence despite giving ample opportunities.
11. Management no.2 examined Shri Nishikesh Ranjan Sinha as MW1 who tendered his evidence by way of affidavit Ex.MW1/A and relying upon following documents:
Identification Mark Description Ex.MW1/1 Authorization letter. Mark A Copy of the reply of demand
LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
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Ex.MW1/2 Postal receipt through which letter dated 09.11.2020 was sent to the workman.
Mark B Copy of the reply submitted before Labour Inspector.
12. MW1 was cross-examined at length by AR for claimant. Relevant extract of cross-examination of MW1 are as under:
"It is correct that the workman was working as a field executive....I am working in the management no.2....Vol. The workman started absenting w.e.f 01.05.2020.... At present, the management is ready to take the workman back on duty without back wages.... It is correct that the management has not conducted any domestic enquiry against the workman. It is correct that the workman was working with the management no.2 since 01.07.2015".
13. Thereafter on 03.01.2025, ME was closed and matter was listed for final arguments.
14. Final arguments heard.
15. I have considered the submissions of all the parties and perused the judicial record.
My issuewise findings are as under:-
Issue no.-2:-
Whether statement of claim against respondent no.1 is liable to be dismissed in the absence of employer- employee relation? OPM-1 LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.6/15
16. It is settled law that the provisions of Indian Evidence Act, 1872 per se are not applicable in the industrial adjudications. The general principles of it are, however, applicable and the principles of natural justice are complied with.
17. 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:
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".
LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.7/15
18. 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 workman claiming protection under Section 25F of I.D. Act has to prove (i) existence of employer-employee relation; (ii) employment as workman 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. Existence of Employer-Employee Relationship
19. The contention of management no.1 is that no employer-employee relationship exist between claimant and management no.1, hence, claimant is not entitled to seek any relief against it.
20. The law relating to existence of 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 and CM No.47971/2029 wherein the Hon'ble High Court of Delhi 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) 13 SCC 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 LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.8/15
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 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 LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.9/15
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 of India 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 workman, (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/workman.
22. Further, in Balwant Rai Saluja and Another Vs. Air India Limited and Others (2014 (9) SCC 407) the Hon'ble Supreme Court has also 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;
LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
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23. Coming to the facts of the case, the claimant averred that he used to work with both the managements upon the direction of Mr. Sanjeev Sarin (director of both the managements). However, the claimant has not placed on record any documentary evidence i.e. appointment letter, salary slip, leave book, I-card etc. to show that he was the employee of management no.1.
24. It is the admitted case of claimant that his name was shown in the management no.2 i.e. M/s Digicom Management Systems Pvt. Ltd since 01.07.2015.
25. Further during cross-examination claimant/WW1 also admitted that he had been working for management no.2 i.e. M/s Digicom Management Systems Pvt. Ltd.
26. On the basis of statement of claim and evidences on record, it is evidently clear that the claimant has failed to show that employer-employee relationship existed between the management no.1 and him.
27. Since there is no employer-employee relationship existed between claimant and management no.1. Accordingly, this issue is decided in favour of the management no.1 and against the claimant.
28. During the arguments, AR for management no.2 contended that since the claimant failed to resume duties despite a valid reinstatement offer from management no.2, the claimant is not entitled to any relief against management no.2. Further AR LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
11/15for management no.2 also emphasized that it is a well settled legal principle, that if a claimant refuses/neglect to rejoin work after being offered reinstatement, he cannot subsequently raise an industrial dispute against the employer/management.
29. In support of his contentions, he relied upon case laws titled as Sonal Garments Vs. Trimbak Shankar Carvey 2002(6)BOMCR529,[2003(96)FLR498] and Tej Pal Vs. M/S Gopal Narain & Sons W.P (C) 2006 SCC OnLine Delhi 966.
30. Since this contention raises a fundamentally legal issue regarding the maintainability of the present claim petition, this court is duty bound to adjudicate on this preliminary question before proceeding further.
MANAGEMENT'S OFFER TO THE WORKMAN TO JOIN BACK SERVICES:-
31. In Tej Pal Vs. M/S Gopal Narain & Sons, W.P (C) 2006 SCC OnLine Delhi 966, the Hon'ble High Court held that an employee who did not go to join back duty despite offer of the management asking him to join services, could not have raised any dispute against management about termination of his service.
32. During cross-examination of claimant/WW1, he admitted that management offered him to join back on duty before Labour Inspector and Conciliation Officer, however, voluntarily gave explanation that he did not join the management as management did not offer him joining letter.
33. It is well settled legal principle that the issuance of a formal joining letter by the management is not a mandatory requirement. The sole determinative factor is whether the claimant, upon being offered reinstatement, attempted to resume LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
12/15duties and was prevented from doing so by the management. Only in such circumstances, it can be concluded that his services were unlawfully/illegally terminated.
34. Even otherwise, claimant/WW1 also admitted that management offered him to join back on duties vide para no.2 of WS and he did not went to join duty despite offer by the management.
35. In Sonal Garments Vs. Trimbak Shankar Karvey, 2002(6)BOMCR529,[2003(96)FLR498], the Hon'ble Bombay High Court has held:
"4. However, as the offer of petitioner to reinstate the respondent was not accepted, he is not entitled to the relief of the reinstatement and any back wages at all. His conduct lends support to the version of the employer that he had abandoned the employment and that he never came back to report for duty and that it was not a case of termination by the petitioner employer. Whenever the employer offers to reinstate the workman at any stage of the dispute or proceeding and if the workman does not accept the offer even without prejudice to his rights and contentions, he will not be entitled to claim any back wages from the date of such offer, conditional or unconditional. He must first accept the offer and get reinstated in employment and therefore, continue to contest for the relief of back wages, if any. In the present case, there was an unconditional offer of reinstatement made by the employer in the written statement itself but it was not accepted by the workman, therefore, as stated by me hereinbefore, he is not entitled to get reinstatement with full back wages at all".
LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
13/1536. In the present case there was an unconditional offer of reinstatement made by the employer i.e. management no.2 in the written statement itself but it was not accepted by the claimant. WORKMAN NEVER MADE ANY EFFORT TO SEARCH FOR EMPLOYMENT:
37. During cross-examination, claimant/WW1 also admitted that he never tried to search for an employment.
38. In Gujarat State Road Transport Corporation Vs. Dawood Bhal I. Ghanchi, LPA No.764/2002 in SCA No.3975/2001 decided on 20.10.2011, the hon'ble Gujarat High Court has held that the claimant shall not be entitled to any back wages if failed to prove the best efforts he had put to get employment post termination.
39. Further there are material discrepancies and contradictions in the claimant's claim regarding the date of alleged termination. In his statement of claim, the claimant alleged that management no.2 terminated his services on 15.07.2020, however, during cross-examination he deposed that he had worked for management no.2 only up to April, 2020 and never thereafter. Claimant/WW1 also deposed that he visited the office of the management only from 28.04.2020 to 01.05.2020 and never thereafter.
40. As discussed above, considering the fact that despite offer of reinstatement by management no.2 to join back duties the claimant not joined back, workman never tried to search for alternate employment and there are material discrepancies and contradictions between his pleadings and deposition, I am of the considered opinion that the claimant is not entitled to LIR 1538/21 GAURAV KUMAR VS. M/S INFOMAX MANAGEMENT SERVICE (INDIA) PVT. LTD.
14/15reinstatement or any back wages.
41. Reference stands answered in aforesaid terms.
42. Copy of Award be sent to Joint Labour Commissioner, Central District, Labour Department, GNCT of Delhi, Employment Exchange Building, PUSA, New Delhi for publication.
43. Judicial file be consigned to record room. ANNOUNCED IN THE OPEN COURT ON 30.05.2025.
Digitally signed by SURENDER SURENDER MOHIT
MOHIT SINGH
Date: 2025.05.30
SINGH 20:02:52 +0530
(Dr. Surender Mohit Singh)
District Judge,POLC-VIII
RADC/New Delhi
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