U.P. State Electricity
Board Vs. Shri Shiv Mohan Singh and Anr [2004] Insc 602 (1 October 2004)
N.Santosh Hegde &
A.K.Mathur With (C.A. No. 8386/2003. 7005/03, 7006/03, 8383/03, 8385/03,
8384/03, 9231/03, 9234/03, 9232/03, 9233/03, 9679/03, 9680/03, 9681/03, 9683/03,
122/04, 14/04, 1965/04 & 2193/04) A.K. Mathur, J.
In all these appeals common question of law is involved, therefore, they are
disposed of by common order.
The main question involved in these appeals is what is the scope of
Apprentices Act, 1961 vis a vis the U.P. Industrial Disputes Act, 1947, Industrial
Disputes Act, 1947 and the Indian Boilers
Act, 1923.
The Apprentices Act, 1961 was promulgated primarily for the purpose of recruiting the
apprentices. The idea behind was strong industrial base across the country. For
the industrial growth it was necessary to have trained man power and for that
purpose the apprentices were recruited.
The Introduction, Objects and Reasons
for enacting this Act reads as under :-
INTRODUCTION " After India
gained independence, a wave to have its own strong industrial base swept the
country. Backed by Government policies, industrial growth had a quantum leap.
With the industrial growth a need was felt to have trained man-power and for
that steps were taken to arrange for training of apprentices in the industry.
After some years it necessitated that the training being imparted to the
apprentices should be regulated by legislation. Accordingly the Apprentices
Bill, 1961 was introduced in a Parliament to provide for the regulation and
control of training of apprentices.
STATEMENT OF OBJECTS AND REASONS The question of undertaking legislation for
regulating the training of apprentices in industry has been under the
consideration of the Government for a long time. Expert committees which went
into the question have recommended such legislation. Although certain establishment
in the public and private sectors have been carrying out programmes of training
of skilled workers on a systematic basis, industry in general has not as yet
fully organized such programmes.
In the context of the Five Year Plan and the large scale industrial
development of the country, there is an increasing demand for skilled
craftsmen.
The Government considers that it is necessary fully to utilize the
facilities available for the training of apprentices and to ensure their
training in accordance with the programmes, standards and syllabi, drawn up by
expert bodies.
The Bill is intended to give effect to these objectives." Now we shall
examine the necessary provisions of the Act.
Section 2 deals with the definition. Section 2 (aa) defines
"apprentice" which means a person who is undergoing apprenticeship
training in pursuance of a contract of apprenticeship.
Section 2 (aaa) deals with "apprenticeship training" which means a
course of training in any industry or establishment undergone in pursuance of a
contract of apprenticeship and under prescribed terms and conditions which may
be different for different categories of apprentices.
Section 2 (b) deals with "Apprenticeship Adviser" which reads as
under:
" 'Apprenticeship Adviser' means the Central Apprenticeship Adviser
appointed under sub- section (1) of Section 26 or the State Apprenticeship
Adviser appointed under sub- section (2) of that section." Section 2 (d)
defines "Appropriate Government".
Section 2 (e) defines 'designated trade' which means a trade of any
vocational course which the Central Government, after consultation with the
Central Apprenticeship Council, may by notification in the Official Gazette
specify as a designated trade for the purposes of this Act.
Section 2 (f) deals with "employer" which means any person who
employs one or more other persons to do any work in an establishment for
remuneration and includes any person entrusted with the supervision and control
of employees in such establishment.
Section 2 (q) defines "trade apprentice" which means an apprentice
who undergoes apprenticeship training in any such trade or occupation as may be
prescribed.
Section 2 (r) deals with "worker" which means any person who is
employed for wages in any kind of work and who gets his wages directly from the
employer but shall not include an apprentice referred to in clause (aa).
Section 3 defines qualification for being engaged as an apprentice. Only two
qualifications are required that he should not be less than fourteen years of
age and satisfies such standards or education and physical fitness as may be
prescribed.
Section 4 which is relevant for our purpose reads as under:- "Contract
of apprenticeship (1) No person shall be engaged as an apprentice to undergo
apprenticeship training in a designated trade unless such person or, if he is a
minor, his guardian has entered into a contract of apprenticeship with the
employer.
(2) The apprenticeship training shall be deemed to have commenced on the
date on which the contract of apprenticeship has been entered into under
sub-section (1).
(3) Every contract of apprenticeship may contain such terms and conditions
as may be agreed to by the parties to the contract:
Provided that no such term or condition shall be inconsistent with any
provision of this Act or any rule made thereunder.
(4) Every contract of apprenticeship entered into under sub-section (1)
shall be sent by the employer within such period as may be prescribed to the
Apprenticeship Adviser for registration.
(5) The Apprenticeship Adviser shall not register a contract of
apprenticeship unless he is satisfied that the person described as an
apprentice in the contract is qualified under this Act for being engaged as an
apprentice to undergo apprenticeship training in the designated trade specified
in the contract.
(6) Where the Central Government, after consulting the Central
Apprenticeship Counsel, makes any rule varying the terms and conditions of
apprenticeship training, of any category of apprentices undergoing such
training, then, the terms and conditions of every contract of apprenticeship
relating to that category of apprentices and subsisting immediately before the
making of such rule shall be deemed to have been modified accordingly."
Section 5 deals with the Novation of contract of apprenticeship which reads as
under:
" Where an employer with whom a contract of apprenticeship has been
entered into, is for any reason, unable to fulfil his obligations under the
contract and with the approval of the Apprenticeship Adviser it is agreed
between the employer, the apprentice or his guardian and any other employer
that the apprentice shall be engaged as an apprentice under the other employer
for the unexpired portion of the period of apprenticeship training, the agreement,
on registration with the Apprenticeship Adviser, shall be deemed to be the
contract of apprenticeship between the apprentice or his guardian and the other
employer, and on and from the date of such registration, the contract of
apprenticeship with the first employer shall terminate and no obligation under
that contract shall be enforceable at the instance of any party to the contract
against the other party thereto." Section 6 deals with the period of apprenticeshIp
training which reads as under:- "6. Period of apprenticeship training :-
The period of apprenticeship training, which shall be specified in the contract
of apprenticeship, shall be as follows - (a) in the case apprentices who,
having undergone institutional training in a school or other institution
recognized by the National Council, have passed the trade tests or examinations
conducted by that Council or by an institution recognized by that Council the
period of apprenticeship training shall be such as may be determined by that
Council;
(aa) in the case of trade apprentices who, having undergone institutional
training in a school or other institution affiliated to or recognized by a
Board or State Council of Technical Education or any other authority which the
Central Government may, by notification in the Official Gazette specify in this
behalf, have passed the trade tests or examinations conducted by that Board or
State Council or authority, the period of apprenticeship training shall be such
as may be prescribed;
(b)in the case of other apprentices the period of apprenticeship training
shall be such as may be prescribed;
) in the case of graduate or technician apprentice technician (vocational)
apprentice, the period of apprenticeship training shall be such as may be
prescribed." Section 7 deals with the termination of apprenticeship
Contract which reads as under:
" 7. Termination of apprenticeship contract - (1) The contract of
apprenticeship shall terminate on the expiry of the period of apprenticeship
training.
(2) Either party to a contract of apprenticeship may make an application to
the Apprenticeship Adviser for the termination of the contract, and when such
application is made, shall send by post a copy thereof to the other party to
the contract.
(3) After considering the contents of the application and the objections, if
any, filed by the other party, the Apprenticeship Adviser may, by order in
writing, terminate the contract if he is satisfied that the parties to the
contract or any of them have or has failed to carry out the terms and
conditions of the contract and that it is desirable in the interests of the
parties or any of them to terminate the same:
Provided that where a contract is terminated- (a) for failure on the part of
the employer to carry out the terms and conditions of the contract, the
employer shall pay to the apprentice such compensation as may be prescribed;
(b) for such failure on the part of the apprentice the apprentice or his
guardian shall refund to the employer as cost of training such amount as may be
determined by the Apprenticeship Adviser.
(4) Notwithstanding anything contained in any other provision of this act,
where a contract of apprenticeship has been terminated by the Apprenticeship
Adviser before the expiry of the period of apprenticeship training and a new
contract of apprenticeship is being entered into with a new employer, the
Apprenticeship Adviser may, if he is satisfied that the contract of
apprenticeship with the previous employer could not be completed because of any
lapse on the part of the previous employer, permit the period of apprenticeship
training already undergone by the apprentice with his previous employer to be
included in the period of apprenticeship training to be undertaken with the new
employer." Section 8 deals with the number of apprentices for a designated
trade.
Section 9 deals with practical and basic training of apprentices.
Section 10 deals with the related instruction of apprentices.
Section 11 deals with the obligations of employers which is relevant for our
purpose which reads as under:- "11. Obligations of employers Without
prejudice to the other provisions of this Act every employer shall have the
following obligations in relation to an apprentice, namely - (a) to provide the
apprentice with the training in his trade in accordance with the provisions of
this Act, and the rules made thereunder;
(b) if the employer is not himself qualified in the trade, to ensure that a
person who possesses the prescribed qualifications is placed in charge of the
training of the apprentice;
(bb) to provide adequate instructional staff, possessing such qualifications
as may be prescribed for imparting practical and theoretical training and
facilities for trade test of apprentices;
and ) to carry out his obligations under the contract of
apprenticeship." Section 12 deals with the Obligations of apprentices
which reads as under:
"12. Obligations of apprentices (1) Every apprentice undergoing
apprenticeship training shall have the following obligations, namely :- (a) to
learn his trade conscientiously and diligently and endeavour to qualify himself
as a skilled craftsman before the expiry of the period of training;
(b) to attend practical and instructional classes regularly;
) to carry out all lawful orders of his employer and superiors in the
establishment; and (d) to carry out his obligations under the contract of
apprenticeship.
(2) Every graduate or technician apprentice or technician (vocational)
apprentice undergoing apprenticeship training shall have the following obligations,
namely:- (a) to learn his subject field in engineering or technology or
vocational course conscientiously and diligently at his place of training;
(b) to attend the practical and instructional classes regularly;
) to carry out all lawful orders of his employer and superiors in the
establishment;
(c) to carry out his obligations under the contract of apprenticeship which
shall include the maintenance of such records of his work as may be
prescribed." Section 13 regarding payment to apprentices which reads as
under:
"13. Payment to apprentices (1) The employer shall pay to every
apprentice during the period of apprenticeship training such stipend at a rate
not less than the prescribed minimum rate, or the rate which was being paid by
the employer on 1st January, 1970 to the category of apprentices under which
such apprentices falls, whichever is higher, as may be specified in the
contract of apprenticeship and the stipend so specified shall be paid at such
intervals and subject to such conditions as may be prescribed.
(2) An apprentice shall not be paid by his employer on the basis of piece
work nor shall he be required to take part in any output bonus or other
incentive scheme." Section 14 deals with Health, safety and welfare of
apprentices.
Section 15 deals with hours of work, overtime, leave and holidays.
Section 16 deals with the employer's liability for compensation for injury.
Section 18 deals with the Apprentices are trainees and not workers which reads
as under:
" 18. Apprentices are trainees and not workers Save as otherwise
provided in this Act, - (a) every apprentice undergoing apprenticeship training
in a designated trade in an establishment shall be a trainee and not a worker;
and (b) the provisions of any law with respect to labour shall not apply to or
in relation to such apprentice." Section 19 deals with the records and
returns.
Section 20 deals with settlement of disputes which is relevant for our
purpose reads as under:
"20. Settlement of disputes (1) Any disagreement or dispute between an
employer and an apprentice arising out of the contract of apprenticeship shall
be referred to the Apprenticeship Adviser for decision.
(2) Any person aggrieved by the decision of the Apprenticeship Adviser under
sub-section (1) within thirty days from the date of communication to him of
such decision, prefer an appeal against the decision to the Apprenticeship
Council and such appeal shall be heard and determined by a Committee of that
Council appointed for the purpose.
(3) The decision of the Committee under sub- section (2) and subject only to
such decision of the Apprenticeship Adviser under sub-section (1) shall be
final." Section 21 deals with holding of test and grant of certificate and
conclusion of training which reads as under:- "21 Holding of test and
grant of certificate and conclusion of training (1) Every apprentice who has
completed the period of training shall appear for a test to be conducted by the
National Council to determine his proficiency in the designated trade in which
he has served his apprenticeship training.
(2) Every apprentice who passes the test referred to in sub-section (1)
shall be granted a certificate of proficiency in the trade by the National
Council.
(3) The progress in apprenticeship training of every graduate or technician
apprentice technician (vocational) apprentice shall be assessed by the employer
from time to time.
(4) Every graduate or technician apprentice or technician (vocational)
apprentice who completes his apprenticeship training to the satisfaction of the
concerned Regional Board, shall be granted a certificate of proficiency by the
Board." Section 22 deals with offer and acceptance of employment which
reads as under:
" 22. Offer and acceptance of employment (1) It shall not be obligatory
on the part of the employer to offer any employment to any apprentice who has
completed the period of his apprenticeship training in his establishment, nor
shall it be obligatory on the part of the apprentice to accept an employment
under the employer.
(2) Notwithstanding anything in sub-section (1), where there is a condition
in a contract of apprenticeship that the apprentice shall, after the successful
completion of the apprenticeship training, serve the employer, the employer
shall, on such completion, be bound to offer suitable employment to the
apprentice, and the apprentice shall be bound to serve the employer in that
capacity for such period and on such remuneration as may be specified in the
contract:
Provided that where such period or remuneration is not, in the opinion of
the Apprenticeship Adviser, reasonable, he may revise such period or
remuneration so as to make it reasonable, and the period or remuneration so
revised shall be deemed to be the period or remuneration agreed to between the
apprentice and the employer." Chapter III of the Act deals with the
authorities like the powers of the Apprenticeship Adviser, Powers of entry,
inspection, etc. Offences and penalties, etc.
Section 37 deals with the power to make rules. In exercise of this power
Central Government in consultation with Central Apprenticeship Council has
framed "The Apprenticeship Rules 1992".
Rule 6 requires that every employer shall send to the Apprenticeship Adviser
the contract of apprenticeship for registration within three months of the date
on which it was signed.
Rule 7 deals with the period of apprenticeship training as may be specified
in the schedule.
Rule 8 deals with the termination of the apprenticeship which reads as
under:
"8 Compensation for termination of apprenticeship Where the contract
of apprenticeship is terminated through failure on the part of any employer in
carrying out the terms and conditions thereof, such employer shall be liable to
pay the apprentice compensation of an amount equivalent to his three months
last drawn stipend.
Rule 11 deals with payment of stipend to apprentices.
Rule 12 deals with the hours of work..
Rule 13 deals with the grant of leave to apprentices.
Rule 14 deals with the records and returns.
In this background of the Act and Rules, the question which arises for
interpretation is what is the effect of non- registration of the contract
because sub-section (4) of Section 4 read with Rule 6 require that every
contract of apprentice shall be sent by the employer to the apprenticeship
adviser for registration within three months. Therefore, in case the contract
of apprenticeship is not sent to the apprenticeship adviser for registration
what will be the effect thereof ? As per the scheme of the Act it appears that
the contract of apprentice is entered with employer & apprentice, and he
has to undergo a training for fixed duration & he will get stipend for
that. After the successfully undergoing training he appears for test for
certificate as required under Section 21.
During the training period he will be treated as an apprentice and he shall
not be deemed as a workman as per Section 18 of the Act read with definition of
'workman' under section 2(r). It is ordained in sub-section (b) of Section 18
that provisions of any law with respect to labour shall not apply to or in
relation to such apprentices. Therefore, on a reading of all the provisions
together what it transpires is that apprentices will be treated as apprentice
and he will not acquire a status of workman in that establishment. After the
successful completion of the training he will undergo a test and on being
successful in the test a certificate to that effect will be issued to him as
per Section 21.
It is open for the employer to offer him employment but it will not be
obligatory on the part of the apprentice to serve that employer as per Section
22 except when there is specific condition of contract to that effect. During
the course when he undergoes the apprenticeship training he is only entitled to
get stipend under Rule 11 at such rate as are prescribed in the Rules.
Therefore a combined reading of the Sections as well as Rules makes it clear
that the apprentices are only the persons undergo training and during that
training they are entitled to get a particular stipend, they have to work for a
fixed hours and at the end of period of training they have to appear in the
test and a certificate is issued to them. There is no obligation on the part of
the employer to give them any employment whatsoever. The position of the
apprentice remains as an apprentice/a trainee and during the period of training
they will not be treated as a workman. Only obligation on the part of the
employer is to impart them training as per provisions of Act & Rules and to
pay them stipend as required under Rule 11 and beyond that there is no
obligation on the part of the employer to accept them as his employees and give
them a status of workmen. There is no relation of master & servant or
employer & employee.
In this background, we will examine the position vis a vis the U.P. Industrial
Disputes Act, 1947 and Industrial
Disputes Act,
1947 and the Indian
Boilers Act, 1923. In this connection, a reference may be made to Section
2(z) of the U.P.Industrial Disputes Act, 1947. This definition of the workman
is pari materia with that of the Industrial
Disputes Act Section 2(s). Section 2(z) of the U.P. Industrial
Disputes Act, 1947 which reads as under:
" 'workman' means any person ( including an apprentice) employed in any
industry to do any skilled or unskilled manual, supervisory, technical or
clerical work for hire or reward, whether the terms of employment be expressed
or implied, and for the purposes of any proceeding under this Act in relation
to an industrial dispute, includes any such person who has been dismissed,
discharged or retrenched in connection with, or as a consequence of, that
dispute, or whose dismissal, discharge or retrenchment has led to that dispute,
but does not include any such person- (i) who is subject to the Army Act, 1950
or the Air Force Act, 1950,
or the Navy (Discipline) Act,1934; or (ii) who is employed in the police
service or as an officer or other employee of a prison; or (iii)who is employed
mainly in a managerial or administrative capacity; or (iv) who, being employed
in a supervisory capacity, draws wages exceeding five hundred rupees per mensem
or exercises, either by the nature of the duties attached to the office or by
reason of the powers vested in him, functions mainly of a managerial
nature." Since the definition of 'workman' as given in Section 2(z) of the
U.P. Industrial
Disputes Act, 1947 is pari materia with that of Section 2(s) of the Industrial
Disputes Act, 1947, therefore, no useful purpose would be served by
reproducing the definition of 'workman' as given in Section 2(s) of the Industrial
Disputes Act, 1947. Our
attention was also invited to Section 6(N) of the Industrial
Disputes Act, 1947, which lays down the conditions precedent to
retrenchment of workmen. Section 6(N) of the U.P.
Industrial
Disputes Act, 1947 reads as under:
" 6N. 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 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;
Provided that no such notice shall be necessary if the retrenchment is under
an agreement which specifies a date for the termination of service;
(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 service or any part thereof in excess of six months, and ) notice in the
prescribed manner is served on the State Government." It is pari materia
with that of Section 25(F) of the Industrial
Disputes Act, 1947. Therefore, no useful purpose would be served by
reproducing that definition.
In this connection, reference may be made to the definition of 'Industrial
Dispute' as defined in Section 2(l) of the U.P. Industrial
Disputes Act, 1947 which reads as under :
" (l) ' Industrial Dispute' means any dispute or difference between
employees and employers, or between employers and workmen, or between workmen
and workmen, which is connected with the employment or non-employment or the
term of employment or with the conditions of labour, or any person; but does
not include an industrial dispute concerning- (i) any industry carried on by or
under the authority of the Central Government or by a Railway Company, or
(ii)such controlled industry as may be specified in this behalf by Central
Government, or (iii) banking and insurance companies as defined in the Industrial
Disputes Act, 1947, or (iv)a mine or an oil-field;" This definition of
'Industrial Dispute' is pari materia with that of the Industrial Disputes
Act, 1947 as defined in Section 2(k) but the definition of Section 2(k) is
not as wide as that of Section 2(l) of the U.P. Industrial
Disputes Act, 1947.
Therefore, the said definition is reproduced as under:
" (k) " industrial dispute" means any dispute or difference
between employers and employers, or between employers and workmen, or between
workmen and workmen, which is connected with the employment or non-employment
or the terms of employment or with the conditions of labour, of any
person;" Similarly, our attention was also drawn to some of the provisions
of the Indian
Boilers Act, 1923 which lays down as to how the employer should maintain
the boilers, and prohibits using uncertificated boiler. It is required to
obtain necessary certification. It also deals with the penalties for breach of
the conditions for maintenance of the boilers.
In the background of the provisions of the four enactments, the main
question which has been agitated by learned counsel for the appellant is that
if an incumbent is appointed as an apprentice/trainee and even if a contract of
such apprenticeship has not been registered, then also he does not cease to be
an apprentice and his position does not become that of a workman. As against
this, learned counsel for the respondents has strenuously urged before us that
non- registration of the contract of apprenticeship under sub-section (4) of
Section 4 of the Apprentices Act, 1961, with the Apprenticeship Adviser would result in the breach of
the contract and the status of an incumbent is changed from the apprentice to that
of a workman. Therefore, the question arose that whether registration of the
contract under sub-section (4) of Section 4 is mandatory or directory and in
case, it is a mandatory, then what is the effect, if it is directory, then what
is the effect thereof. In this connection, it was submitted that the word
'shall' appearing in sub-section 4 of Section 4 means the registration of the
contract is mandatory and if it is not registered then the contract ceases and
the incumbent becomes workman. In this connection reference was made to a
decision in the case of P.T. Rajan vs. T.P.M. Sahir & Ors. reported in
(2003) 8 SCC 498. It was also submitted that the Apprentices Act, 1961 is a welfare legislation and it should be construed liberally for the
benefit of the workman. In this connection, our attention was drawn to the
decisions of this Court in the cases of Air India and Secretary, H.S.E.B. vs.
Suresh & Ors; reported in (1997) 9 SCC 377 and (1999) 3 SCC 601. It was
also submitted that the nature of work and the nomenclature of the post is not
decisive.
In this connection, our attention was also drawn to a decision of this Court
in the case of Surya Prasad Singh and Anr. vs.
Labour Court II, Kanpur and Anr. reported in 1995 Supp.(4) SCC 38.
Therefore, now going back to the basic question that in the light of the
aforesaid statutory provisions whether non- registration of the contract can
render the contract void or illegal and what is the result thereof. From the
scheme of things it is more than apparent that the Apprentices Act, 1961 is a complete code in itself and it lays down the conditions of the
apprentices, what shall be their tenure, what shall be their terms and
conditions and what are their obligations and what are the obligations of the
employer. It also lays down that the apprentices are trainees and not workmen
and if any dispute arises then the settlement has to be done by the
Apprenticeship Adviser as per Section 20 of the Apprentices Act, 1961 and his decision thereof is final. Now, under the scheme of these
things, it clearly shows that the nature and character of the apprentice is
nothing but that of a trainee and he is supposed to enter into a contract and
by virtue of that contract he is to serve for a fixed period on a fixed
stipend. This will not change the character of the apprentice to that of a
workman under the employer where he is undergoing the apprentice training.
Sub-section (4) of Section 4 only lays down that such contract should be
registered with the Apprenticeship Adviser. But by non-registration of the
contract, the position of the apprentice is not changed to that of a workman.
It is more than clear from the scheme of the Act, the apprentice is recruited
for the purpose of training as defined in Section 2(aa) of the Apprentices Act,
1961, that an apprentice is a person who is undergoing apprenticeship
training in pursuance of a contract of apprenticeship and the apprenticeship
training has been defined under Section 2(aaa). That clearly speaks that an
apprentice is to undergo apprenticeship training in any industry or
establishment under the employer in pursuance of the contract and in terms of
the conditions pertaining to that particular trade. Section 6 lays down that
what shall be the period of training and Section 7 very clearly shows that the
contract of apprenticeship shall terminate on the expiry of the period of
apprenticeship training. Therefore, it is more than clear that the nature and
character of the apprentice is that of a trainee only and on the expiry of the
training there is no corresponding obligation on the part of the employer to
employ him which is also very clear from the provisions of Section 7 that the
apprenticeship training shall terminate on the expiry of the period of
training. It further makes clear that by virtue of Section 18 that the
apprentice trainees are not workers. It clearly lays down that if an apprentice
trainee is undergoing apprenticeship training in a designated trade in an
establishment, he shall be a trainee and not a worker. It further contemplates
that the provisions of labour laws shall not apply in relation to such
apprentice. In this connection reference to definition of workman given in
Section 2(r) also emphasis that it will not include apprentice. Section 20 also
lays down that how a dispute arising under this Apprentices Act, 1961 can
be settled. The authority for resolving such a dispute has been given to the
Apprenticeship Adviser. Therefore, any dispute which arises with the apprentice
and the employer then remedy has been provided under this Act and not by way of
resorting to the Labour Court. Therefore, throughout the Act stress has been
laid that the apprentices are never being treated as workers. Simply because
the contract has not been registered with the Apprenticeship Adviser, that will
not change the nature and character of the apprentices. It is true that sub-
section (4) of Section 4 lays down that the contract of apprenticeship should
be registered with the Apprenticeship Adviser so that the Apprenticeship
Adviser can monitor and keep a record thereof. Just because the contract of
apprenticeship is not registered that will not render the contract as invalid
resulting in change of status of an apprentice to that of a workman.
Section 21 further lays down that after the completion of the training of
the apprentice, an incumbent will have to appear for a test to be conducted by
the National Council to determine his proficiency in the designated trade in
which he has undergone his apprenticeship training. Therefore, had there been
an intention of the Legislature to confer them the status of a workman then all
the provisions would not have been warranted at all. Section 22 makes it
abundantly clear that at the end of the apprenticeship training, it is not
obligatory on the part of the employer to offer an employment to an apprentice
who has completed the period of apprenticeship . It is only if the terms of the
contract of the apprenticeship lays down a condition that on successful
completion of an apprenticeship training, an employer will offer him an
employment then it is obligatory on the part of the employer to do so. If there
is no such condition stipulated in the apprenticeship contract then the
employer cannot be compelled to offer employment to such apprentice. At the
same time, it is not obligatory on the part of apprentice to serve that
employer if there is no such stipulation to this effect. So it is mutual thing
& it depends on the terms of contract. The survey of all these provisions
of the Acts and the Rules as mentioned above, makes it clear that the character
& status of apprentice remains the same & he does not become workman
and labour laws are not attracted.
Now, coming to the question that the expression appearing in sub section (4)
of Section 4, "shall" should be interpreted as mandatory. It depends
upon the context in which such expression appears. In order to interpret the
word "shall" appearing in any enactment one has to see the context in
which it appears and the effect thereof. We have already quoted the
Introduction, Statement of Objects and Reasons above. The Objects and Reasons
reveal that the Act was enacted for the purpose of recruiting the apprentices
for developing a strong industrial base. In order to have a strong industrial
base, trained man power is essential and for that purpose the Act was enacted
so that for the industrial growth in the country the trained man power is made
easily available.
The purpose is to train the people for employing them in the industries, it
was never the intention that those trained candidates automatically become the
workmen. Though training was imparted by Private & Public Sector but
industry in general did not fully organize such programme. Therefore, the
intention of the Act is basically to recruit and train person capable of being
employed in the industries. Apart from the statement of Objects and Reasons we
have already reproduced above relevant provisions of the Act which clearly
contemplates that such trained persons shall not fall in the definition of the
workmen as the definition of workmen specifically excludes the apprentices as
defined in Section 2 (r). The definition makes it clear that they are
apprentices for a purpose undergoing a training and in Section 18 it has been
clearly mentioned that they will not be treated as a workmen and they will be
treated as a trainee and no labour laws will apply in relation to such
apprentices. Viewing the expression "shall" in this context, cannot
be construed as a mandatory. Sub-section (4) of Section 4 only says that the
contract of apprenticeship should be forwarded to the Adviser that is purely
ministerial/administrative act so that a proper record is maintained by the
Apprenticeship Adviser. Nothing turns beyond this. It is purely administrative
act and not forwarding contract of the apprenticeship to the Apprenticeship
Adviser will not change the character of the incumbent and it will not render
the contract of apprenticeship invalid or void. If the contract of
apprenticeship is to be treated as a mandatory and contract is not sent then
the effect will be that the apprentice will not be entitled to any benefit
flowing from the Act. In fact, by treating the expression "shall"
here as a mandatory it will be more counter productive to the interest of the
trainees rather than for their benefit. The employer can take a shelter under
the plea that since the contract of the employment has not been registered with
the Apprentice Adviser, therefore, he is not under any obligation to pay
stipend to the apprentice trainees and he is not under an obligation to impart
the training to him also. Had that been the intention of the Legislature then
they would have provided the necessary penalty for breach of the
non-registration of the contract of apprenticeship. But that has not been done
so because under Section 30 of the Apprentices Act, 1961 any
offence arising under this Act has been penalized, like apprentice who is not
qualified but he has been engaged or fails to carry out the terms and conditions
of contract of apprenticeship or contravenes the provisions of the Act relating
to number of apprentices or any information required to be furnished or the
apprentice has been allowed to work overtime without approval of the
Apprenticeship Adviser or employs an apprentice on any work which is not
connected with his training or makes any payment to apprentice on the basis of
piece work or requires an apprentice to take part in any output bonus or
scheme. These breaches have been termed as offences and have been made
punishable. But the non- registration of it has not been construed to be an
offence so as to expose the employer for any penalty. Therefore, the expression
"shall" appearing in sub-section (4) of Section 4 does not appear to
be mandatory. Had that to be construed to be mandatory it will be doing a great
violence to the intention of the Act as well as to the interest of the
apprentices/trainees. If the non- registration is to result in the breach of a
contract resulting in to invalidity & unenforceable then in that case it
will be oppressive to the interest of the apprentices as the employer can get
away by seeking a declaration that the apprentice contract was not registered
therefore he is not under an obligation to abide by the terms of the contract.
Therefore, viewing the expression "shall" in this context, it can not
be construed to be mandatory and it is directory. In this connection, reference
may be made to the decision of this Court in the case of P.T. Rajan vs. T.P.M.
Sahir & Ors. (2003) 8 SCC 498. Their Lordships observed that context,
purport and object of the statute is to be ascertained that whether
"shall" to be construed as a mandatory or directory. In that context,
their Lordships referred to an earlier catena of decisions and observed
"where a statutory functionary is asked to perform a statutory duty
between time prescribed same would be directory and not mandatory.
Furthermore, a provision in a statute which is procedural in nature although
employs the word "shall" may not be held to be mandatory if thereby
no prejudice is caused. The Court cannot supply casus omissus." Their
Lordships have further observed as follows:
" A statute must be read in the text and context thereof. Whether
statute is a directory or mandatory would not be dependent on the user of the
word "shall" or "may". Such a question must be posed and
answered having regard to the purpose and object it seeks to achieve. The
construction of statute will depend on the purport and object for which the
same had been used." Therefore, viewing the provision of this Act in the
light of the discussion made above, we are of the opinion that the expression
"shall" appearing in sub-section (4) of Section 4 shall be construed
directory and not mandatory.
It was also submitted by the learned counsel for the appellants that this is
a labour legislation which should be construed liberally and in that context
our attention has been invited to a decision of this Court in Secretary, HSEB
vs.
Suresh & Ors. (1999) 3 SCC 601. In this case, their Lordships held that
Court must decide in interest of the public inspired by principle of justice,
equity and good conscience. Similarly, in Union & Ors. (1997) 9 SCC 377 (
though this case is no more a good law with regard to the Contract Labour
(Regulation and Abolition ) Act 1970 because subsequent decision of the
Constitution Bench has reversed this decision in the case of Steel Authority of
India Ltd. vs. National Union Watrerfront Workers reported in (2001) 7 SCC 1.
But this case has been cited in the context of the interpretation of statute
that how social welfare legislation should be interpreted. In that context
their Lordships have observed that such a social legislation providing for a
economic empowerment to workers and poor class a provision should be considered
in the light of the public law principles not of private or a common laws. So
far as the philosophy behind construing a social legislation is concerned,
there is no two opinion, social legislation are primarily meant for welfare of
the particular section of the society and it should be construed liberally so
as to advance the cause of the public at large. But the question is in the
present case whether the expression "shall" should be read mandatory
so as to advance the cause of the apprentice or not. In our opinion, viewing
from social legislation point of view the word "shall" appearing in
sub-section (4) of Section 4 should be construed as directory because it will
be for the benefit of the apprentice trainee otherwise it will be oppressive to
the welfare of the apprentice as the employer can get away by not getting the
contract of apprentice registered, seeking a declaration that this is a
unregistered document and all benefits flowing from the Act cannot be enforced against
him.
Therefore, we hold that the expression "shall" appearing in
sub-section (4) of Section 4 of the Apprentices Act, 1961 is directory and non-registration of the contract will not change the
character of the apprentice and they will not acquire the status of a workmen.
Once an incumbent is appointed as an apprentice he will continue to be
apprentice unless a formal order of appointment is followed.
It is also necessary to mention here that the definition of the word
'workman' as given in Section 2(z) of the U.P.
Industrial
Disputes Act, 1947 and Section 2(s) of the Industrial Disputes Act, 1947.
Both the definitions includes apprentice.
But the expression appearing in Section 2 (z) of the U.P Industrial
Disputes Act and Industrial
Disputes Act 1947 are not applicable to the apprentices appointed under the
Apprentices Act, 1961. The Apprentices Act
is a code in itself and it clearly stipulates that in Section 2 (aa) apprentice
means a person who is undergoing apprenticeship training in pursuance of
contract of training and the workers are employed for wages for work done by
them. Section 18 clearly mentions that the apprentices are not workmen and
"the provisions of any law with respect to labour law shall not apply or
in relation to such apprentices". Therefore, reading of definition of
apprentice in Sections 2(aa) and 2(r) read with Section 18 of the Apprentices Act
leaves no manner of doubt that this Act which is special Act it does not cover
the apprentices and it precludes the application of any other labour laws, i.e.
U.P. Industrial Disputes Act
& Industrial
Disputes Act, 1947. When both these Acts are not applicable then labour
court/industrial Tribunal will not have any jurisdiction to entertain any
dispute arising therefrom. The application of the U.P. Industrial
Disputes Act 1947
and the Industrial
Disputes Act 1947 automatically stand excluded.
In this connection reference may be made to a decision of the Rajasthan High
Court in the case of Hanuman Prasad Choudhary and Etc. vs. Rajasthan State
Electricity Board, Jaipur 1986 LAB I.C. 1014 wherein Justice S.C.
Agrawal (as he then was) observed thus:- "An apprentice governed by the Apprentices Act
is not a workman for the purpose of the Industrial Disputes Act
and the provisions of the Industrial Disputes Act
would not be applicable to him.
There is apparent conflict between the provisions of S.2(s) Industrial
Disputes Act and S.18 of the Apprentices Act
inasmuch as S.2(s) postulates that an apprentice is a workman to whom the
provisions of Industrial
Disputes Act would be applicable whereas S.18 of the Apprentices Act
declares that an apprentice governed by the Apprentices Act
is not to be treated as a workman and the provisions of the Industrial
Disputes Act would not be applicable to him. The conflict between the two
laws can be resolved by applying the principle of harmonious construction. Apprentices Act
is not an exhaustive Act to cover all types of apprentices because in view of
the definition of term "apprentice" as contained in S.2(aa) of the Apprentices Act,
it is applicable only to persons who are undergoing apprenticeship training in
pursuance of the contract of Apprentices executed under S.4 of the said Act.
It is possible to visualise persons who may be engaged as apprentices but
who are not covered by the Apprentices Act.
In that view of the matter, it can be said that for the purpose of S.2(s) of
the Industrial
Disputes Act a person who is designated as Apprentice but is not governed
by the Apprentices
Act would be a workman governed by the provisions of the Industrial
Disputes Act. But an apprentice who is governed by the provisions of the Apprentices Act
would not be a workman under S.2(s) of he Industrial
Disputes Act and would not be governed by the provisions of the Industrial
Disputes Act.
Apart from the principle of harmonious construction, the Apprentices Act
1961 being a subsequent particular law as compared to I.D. Act, 1947 which
is prior and general , the provisions of Apprentices Act
1961 would prevail over those of I.D. Act." Our attention was invited
to a decision of Kerala High Court in the case of Bhaskaran vs. Kerala State
Electricity Board reported in 1986 KLT 447 wherein Chief Justice Malimath
speaking for the Bench observed as under:
"In order to answer the definitions of the word "apprentice",
two conditions are required to be satisfied viz, (1) that the person is
undergoing apprenticeship training and (2) that he is undergoing such training
in pursuance of a contract of apprenticeship. On a plain reading of the
definition of the expression " apprentice" occurring in S.2 (aa) it
becomes clear that registration of a contract of apprenticeship not necessary
for the person answering the description of the word "apprentice".
Sub-section 4 of Section 4 contemplates the existence of a concluded contract
of apprenticeship, which is required to be sent up for registration. It
therefore, becomes clear that it is the existing contract of apprenticeship
that is required to be registered and not that such contract becomes a contract
of apprenticeship only after it is registered as required by sub-section 4 of
Section 4 of the Act. As it is admitted that the petitioners have entered into
a contract of apprenticeship and were undergoing training in pursuance of such
a contract, they satisfy all the requirements of the definition of the
expression "apprentice" occurring in Section 2(aa) of the Act. That
being the position, the provisions of Section 18 of the Act come into
operation. Therefore, the petitioners cannot be regarded as workers and
therefore, the provisions of Section 25F of the Industrial Disputes Act
are not attracted to the facts of the case." Similarly, the Single Bench
of the Allahabad High Court in the case of U.P. State Electricity Board &
Ors. vs. P.O.Labour Court, Kanpur & Ors. reported in 1998 (78) FLR 511
observed as under:- " Section 18 of the Act provides that an apprentice
shall be a trainee and not a worker and the provisions of any law with respect
to labour shall not apply to or in relation to such apprentice. The respondent
No.2 was thus not a workman and no dispute could be referred to the Labour
Court and the period of his training having come to an end, the action of the
petitioner employer in not engaging him any further was in accordance with the
contract entered into between the parties and the provisions of the Act."
As against this our attention was also invited to a decision of Division Bench
of Gujarat High Court between Ballkhan Doskhan Joya and Gujarat Electricity
Board reported in 2002 (92) FLR 914. The Gujarat High Court has taken the view
that as a result of non-registration of contract of apprenticeship an incumbent
shall not be deemed to be a trainee and he would be covered by the definition
of 'workman' under Section 2(s) of the Industrial
Disputes Act, 1947 and he will get the protection of Section 25-F of the
said Act. Similarly, Single Judge of Gujarat High Court took the same view in
the case of State of Gujarat & Anr. vs. Chauhan Ramjibhai Karsanbhai
reported 2004 (102) FLR 347. And our attention was also invited to a decision
of Madhya Pradesh High Court in M.P. Electricity Board & Ors. vs.
Basant Kumar & Ors. reported in 1989 JLJ 253. This was a case decided on
the facts that the M.P. Electricity Board did not notify the incumbent for a
designated trade and employee continued undergone apprentice training and it
was not proved that the concerned employee was undergoing apprentice training.
It was in that context it was found that the termination of services of the
incumbent was bad.
In view of the conflicting decisions of the various High Courts, we are of
the opinion that the view taken by the Rajasthan, Kerala and Allahabad High
Courts appears to be in consonance with the view taken by us and we do not
agree with the view subscribed by the High Courts of Gujarat and Madhya
Pradesh.
In view of the legal position crystallized above, we shall examine the
individual cases.
Civil Appeal No.2429/2003.
Respondent No.1 , Shiv Mohan Singh was appointed as a apprentice Boiler
Attendant under the Apprentices Act, 1961 from 11.4.1985 to 10.4.1988 and underwent training of the U.P.State
Electricity Board. His contract was drawn up but not registered with the
Apprenticeship Adviser. He completed his three years training and a certificate
to this effect was issued to him and he was directed to appear before the
National Council and on passing thereof he was to be awarded a certificate of proficiency
as a Boiler Attendant. From this fact it is apparent that he was appointed as
an apprentice trainee in the designated Trade of Boiler Attendant. After
completion of his training his services were terminated on 10.4.1988. It is
clear from this fact that he was a Boiler Attendant. He completed three years
training and after end of the training he was relieved as per the terms and
conditions of the appointment as an apprentice in designated trade of Boiler
Attendant and therefore he cannot be declared to be a worker under the Act he
cannot claim the benefit of Section 25-F of the Industrial
Disputes Act, 1947 or under Section 6N of the U.P. Industrial
Disputes Act, 1947. In this light the award given by the Labour Court in
Award Dispute No.166/1991 dated 12.8.1993 and the order dated 26.9.2002 passed
in W.P.No.21560/1995 by the High Court cannot be sustained. Civil Appeal is
allowed. Both the orders of the High Court dated 26.9.2002 and the award of the
Labour Court dated 12.8.1993 are set aside.
Civil Appeal No.7005/2003:
In this case also respondent No.1- Ram Niwas Pal was appointed on 31.3.1986
as an apprentice in the designated trade of Boiler Attendant and his serves
were terminated on 31.3.1989. He also entered into a contract of apprenticeship
and the contract of apprenticeship was registered with the Apprenticeship
Adviser as per the reply sent by Shri G.K.Chaturvedi, Principal and Asst.
Apprenticeship Adviser, I.T.I., Kanpur. So far as this case is concerned, there
is no manner of doubt that the contract of apprenticeship was registered with
the Apprenticeship Adviser and at the end of the contract his services had been
terminated as he was an apprentice and an apprentice is not a workman.
Therefore, termination of service after the expiry of the contract period was
justified and the order passed by the Labour Court as well as by the High Court
cannot be sustained. Accordingly, the Civil Appeal is allowed and the award
dated 28.12.1994 made in Adjudication Case No.107/1991 by the Labour Court and
the order dated 12.4.2002 passed by the High Court in Civil Misc.
Writ .Petition No.15022 of 1995 are set aside.
Civil Appeal No.7006/2003.
In this case respondent No.2-Amar Nath Mishra was appointed on 1.7.1987 as
an apprentice in the designated trade of Boiler Attendant and his services were
terminated on 30.6.1990. A contract was entered into between respondent No.2
and the employer-company. But the contract was not registered with the
Apprenticeship Adviser. As mentioned above, as an apprentice trainee he cannot
acquire the status of a workman and therefore, he cannot get the benefit of
Section 25- F of the Industrial
Disputes Act as well as Section 6N of the U.P.
Industrial
Disputes Act, 1947. As such the award dated 11.10.1993 made by the Labour
Court in Industrial Dispute No.252/1992 and the order dated 12.4.2002 passed by
the High Court in Civil Misc. Writ Petition No.29962/1994 are set aside.
The Appeal is allowed. No order as to costs.
Civil Appeal No.8383/2003.
Respondent No.1- Navneet Kumar Sharma was appointed as an apprentice in the
designated trade of Boiler Attendant on 9.3.1982 and his services were
terminated on 8.3.1985. It is alleged that his contract was not registered with
the Apprenticeship Adviser. He raised the industrial dispute in 1994 which came
to be registered as Industrial Dispute No.330/1994 before the Labour Court(
2nd), U.P. Kanpur. The allegation was that he is a workman and his termination
is bad because he has already worked for more than 240 days but his services
were terminated without complying with the provisions of Section 6N of the U.P. Industrial
Disputes Act, 1947. The respondent No.1 approached the Labour Court after
ten years and an objection was raised by the employer in their affidavit in
opposition before the Labour Court. However, in view of the fact that the
incumbent was appointed as an apprentice under the Apprentices Act, 1961 in a designated trade of Boiler Attendant and that he is not a workman
and he is not entitled to the benefit of Section 6N of the U.P. Industrial Disputes
Act, 1947 and secondly he raised the dispute after ten years, therefore,
the order passed by the Labour Court dated 13.5.1998 and that of the Single
Judge of the High Court cannot be sustained. Accordingly, the appeal is
allowed. Award dated 13.5.1998 passed by the Labour Court in Industrial Dispute
No.330/1994 and the order dated 15.7.2003 passed by the High Court in Civil
Misc. Writ Petition No.37450/1999 cannot be sustained and the same are set
aside.
Civil Appeal No. 8384/2003.
Respondent- Jagat Pal was appointed on 19.9.1975 as an apprentice in the
designated trade of Lineman under the Apprentices Act, 1961. His services were terminated on 23.12.1978. The Labour Court in its award
dated 9.11.1998 has recorded a finding that respondent was appointed by the
Establishment on 19.9.1975 under the Apprentices Act, 1961 and he worked up to 18.9.1978. A dispute was raised by the employee which
came to be registered as Industrial Dispute No.90/1997 and an objection was
raised by the Management that the services had been terminated in 1978 and the
dispute has been raised in 1997. More so in view of the legal position as mentioned
above that the incumbent having been appointed as apprentice under the Apprentices Act,
cannot be treated as a workman and consequently the award given by the Labour
Court on 9.11.1998 and affirmed by the High Court vide order dated 15.7.2003
passed in Civil Misc. Writ Petition No.16394/1999 cannot be sustained.
Accordingly, the appeal is allowed and the order dated 15.7.2003 passed by the
High Court and the award passed by the Labour Court dated 9.11.1998 are set
aside. No order as to costs.
Civil Appeal No.9231/2003.
In this case, a dispute was raised by the U.P.Rashtriya Vidyut Shramik Sangh
about six of its members who were appointed as a trade apprentice and their
services were terminated illegally.
Details of the members are as under:
Name of Incumbent Period of service Date of termination Abhitabh Chatterjee
21.4.1982 to 20.4.1983 21.4.1983 Sadhna Srivastava 19.10.1984 to 18.10.1985
19.10.1985 Suman Srivastava 19.10.1984 to 18.10.1985 19.10.1985 Prem Chandra
30.4.1986 to 29.4.1987 30.4.1987 Akhilesh Kumar 10.10.1988 to 9.10.1989
10.10.1989 Kumari Kiran 10.10.1988 to 9.10.1989 10.10.1989 The case of the
Union was all these incumbents were appointed as apprentices in various trades
and no contract form was got filled up from them under the provisions of the
Apprentices Act, 1961 nor was the same registered nor any examination of National Council
was held for them nor any certificate was issued to them, therefore they
continued to be workmen of the Management as per the Standing Orders of the
Management. The Management took the stand that they are apprentices and they
cannot be treated as workmen. It was stated on affidavit in reply by the
Superintending Engineer (Headquarters), Kanpur Electricity Supply
Administration (U.P.State Electricity Board, Kanpur) that all these incumbents
were appointed as apprentices for a period of one year as Clerks 7 to 9 years back
and their services were terminated after the expiry of apprentice period and
the labour dispute was raised in 1996. It was also pointed out that the tenure
of their apprenticeship was for a period of one year. It was stated by him that
concerned persons were engaged as apprentices.
Therefore, from these facts it is more than apparent that these incumbents
were appointed as trade apprentices in the cadre of Clerk for a period of one
year and after expiry of one year their services came to an end and as mentioned
above, a dispute was raised in 1996 and an award was passed by the Labour Court
treating them as workmen and giving them the benefit of workmen. We are of the
opinion that the view taken by the Labour Court is absolutely erroneous as they
were appointed as general clerks for a fixed period of one year and after the
expiry of fixed period their services automatically came to an end and the
dispute which has been raised is extremely belated. They cannot be treated as
workmen as they were appointed as apprentices irrespective of the fact that the
contract was registered or not. Therefore, the view taken by the Labour Court
as well as by the High Court cannot be sustained.
Consequently, the appeal is allowed. Award dated 16.11.2000 made by the Labour
Court in Industrial Dispute No.236/1999 and the interim order dated 19.9.2003
passed by the High Court in Civil Misc. Writ Petition No.42446/2003 are set
aside. No order as to costs.
Civil Appeal No.9234/2003 In this case, respondent Ashok Kumar was appointed
on the designated trade as Draftsman (Mechanical) from 30.3.1991 to 29.3.1992.
His allegation was that the contract of apprenticeship was not entered in to
between the parties and the same was also not registered. He was treated as a
regular appointee. It was stated by the incumbent himself in his claim petition
before the Labour Court (Kanpur) that he was appointed as an apprentice under
the Apprentices Act, 1961 with effect from 30.3.1991 to 29.3.1992 for training as a
Draftsman and his services were terminated on 30.3.1992. His case was that his
application was neither got registered from the I.T.I.Kanpur nor was any course
got done from him nor any NCTPT examination was taken from him and no
certificate was got issued to him from the National Council and his services
were taken as a regular nature of Draftsman(Mechanical). The stand of the
Management was that he was appointed as Draftsman under the Apprentices Act,
1961 and
after the expiry of the training period, his contract automatically stood
terminated and, therefore, he cannot claim to have been appointed on the post
of Draftsman. If there is any dispute, this can be decided by the
Apprenticeship Adviser under the Apprentices Act, 1961. Before the Labour Court, respondent- Ashok Kumar examined himself as
W.W.1 and he admitted that he was kept on training of Mechanical Draftsman and
used to work as Draftsman for Mechanical, Electrical and Civil and he further
admitted that no contract was registered. From the fact that the incumbent
himself had admitted that he was undergoing training as apprentice under the
Apprentices Act, 1961, therefore, after expiry of the period of one year, he cannot claim
himself to be workman and more so, when his services were terminated way back
1992 i.e.30.3.1992. After completion of the training he cannot claim himself as
workman and raise the dispute in 1996. Therefore, in view of the legal position
crystalised above, we are of the opinion that the award dated 30.8.1997 given
by the Labour Court and affirmed by the High Court by judgment dated 15.7.2003
passed in the Civil Misc. Writ Petition No.9153/1998 cannot be sustained.
Accordingly, the civil appeal is allowed and the order passed by the High Court
dated 15.7.2003 in Civil Misc. Writ Petition No.9153/1998 and the award made by
the Labour Court in Industrial Dispute No.347/1996 are set aside. No order as
to costs.
Civil Appeal No.9232/2003.
Appellant-Lal Man Verma was appointed as an apprentice on the post of Book
Keeping and Accountancy Store on 8.1.1981. It is alleged that Book Keeping and
Accountancy is not a designated trade within the meaning of Section 2(e) of the
Apprentices Act, 1961. It is further alleged that the contract of service entered into
between the parties was not sent to the Apprenticeship Adviser for
registration, therefore, it was not registered and appellant was not imparted
any training under the Act, but appellant's services were terminated with
effect from 8.1.1982 without complying with the provisions of the Industrial Disputes Act, 1947.
The appellant raised an industrial dispute and a reference was made under
Section 4K of the U.P.
Industrial
Disputes Act, 1947 by the State Government to the Labour Court. The Labour
Court made the award in favour of the appellant and held that the Management
has failed to prove that the appellant was appointed as an apprentice and held
that the appellant was not working as an apprentice but as a workman.
This award was challenged by the Management by filing a writ petition being
Civil Misc. Writ Petition No.10370/1998 before the High Court of Allahabad and
the High Court allowed the writ petition filed by the Management and set aside
the award made by the Labour Court holding that since the contract of
apprenticeship was entered in to between the parties and the incumbent was
appointed as an apprentice under the Apprentices Act, 1961
and his contract was not sent for registration to the Apprenticeship Adviser
that will not change the character of the incumbent. Hence, the present appeal
by the appellant by way of special leave. Though in the grounds of the Special
Leave Petition an objection was taken by the appellant that his trade is not
covered by the designated trade within Section 2(e) of the Act, this objection
was never pressed before the Labour Court nor was it pressed before the High
Court.
Therefore, no finding has been given either by the Labour Court or by the
High Court whether this trade is covered by the Act or not. However, for the
first time, the appellant has raised this objection in his Special Leave
Petition. Whether it is a designated trade or not, it is a question of fact and
since the parties have not gone on trial on this issue nor this question has
been referred by the Government for decision of the Labour Court, therefore, we
cannot permit this question to be raised at this stage. Since it is a question
of fact whether this trade is covered by the designated trade or not and this
question for the first time sought to be agitated in the present appeal, it
will not be proper to permit the appellant to raise this question of fact at
this belated stage after a lapse of 21 years. An objection of delay was raised
before the Labour Court that the appellant has approached the Labour Court
after lapse of 11 years i.e. in 1993, his services having been terminated in
the year 1982. Therefore, we do not find any merit in this appeal filed by the
appellant and the same is liable to be dismissed.
Civil Appeal No.9679/2003.
Appellant- Ahmad Ali was appointed on 9.3.1982 in the designated trade of
Boiler Attendant under the Apprentices Act, 1961 and his
services were terminated on 9.3.1985 and the contract was entered in to between
the parties though the same was not registered with the Apprenticeship Adviser.
But, in view of the legal position crystalised above, we are of the opinion
that since the appellant was appointed as a Boiler Attendant under the
Apprentices Act, 1961,
and therefore his termination after the expiry of the period of tenure of the
contract, he cannot claim any benefit and he cannot be designated as a workman.
Therefore, the view taken by the Labour Court is not correct and the High Court
has rightly set aside the order of the Labour Court and we uphold the approach
of the High Court to this extent. The appeal is dismissed and the order dated
15.7.2003 passed by the High Court in Civil Misc. Writ Petition No.11846/1`998
to this extent is upheld.
Civil Appeal No.9680/2003.
Appellant- Rakesh Kumar Tripathi was appointed on 31.3.1986 in the
designated trade of Boiler Attendant under the Apprentices Act, 1961 and his services were terminated on 31.3.1989 and the contract was
entered between the parties though the contract was not registered with the
Apprenticeship Adviser. But in view of the legal position crystalised above, we
are of the opinion that since he was appointed as a Boiler Attendant under the
Apprentices Act, 1961 and therefore his termination after the expiry of the period of tenure
of the contract, he cannot claim any benefit and he cannot be designated as a
workman. Therefore, the view taken by the Labour Court is not correct and the
High Court has rightly set aside the order of the Labour Court and we uphold
the approach of the High Court to this extent. The appeal is dismissed and the
order dated 15.7.2003 passed by the High Court in Civil Misc.Writ Petition
No.23762/1998 to this extent is upheld.
Civil Appeal No.9681/2003.
Appellant-Jai Prakash Tiwari was appointed as apprentice Cable Jointer on
31.3.1986 and his services were terminated on 31.3.1989. Contract of
apprenticeship was entered in to between the parties though not registered. The
appellant raised industrial dispute and the Labour Court gave an award in his favour.
This award was challenged by the Management holding that the apprentice is worker.
The High Court set aside the award in favour of the Management. Therefore, the
view taken by the High Court is correct and there is no ground to interfere
with the same. The Civil Appeal is dismissed.
Civil Appeal No.9683/2003 Appellant- Urmila was appointed as Switch Board
Attendant on 16.10.1984 under the Apprentices Act, 1961. Her services were terminated on 16.10.1987. Apprenticeship contract
was entered in to between the parties but the same was not registered with the
Apprenticeship Adviser. The award given in favour of the appellant by the Labour
Court treating her to be workman and it was reversed by the High Court in a
writ petition filed by the Management and rightly so in our view in view of the
legal position mentioned above, we do not find any merit in this civil appeal.
Same is dismissed.
Civil Appeal No.122/2004.
Appellant- Ashok Kumar Shukla was appointed in a designated trade as an
apprentice Boiler Attendant on 9.4.1985 and his services were terminated on
8.4.1988. A contract was entered in to but not sent for registration to the
Apprenticeship Adviser. Labour Court made the award in his favour treating him
to be workman and on a writ petition filed by the Management against the award,
the High Court allowed the writ petition and set aside the award of the Labour
Court holding that since the appellant is appointed as apprentice, therefore he
cannot be treated as a workman under the Industrial
Disputes Act, 1947.
The view taken by the High Court is correct in view of the legal position crystalised
above. Hence, we not find any merit in this appeal. Same is dismissed. No order
as to costs.
Civil Appeal No.1965/2004.
Respondent Virendra Kumar Bajpai was appointed on 31.3.1986 as a Cashier
under the Apprentices Act, 1961. His services were terminated on 31.3.1987. He worked as a Cashier
(General) which is not a designated trade. Contract was not sent for
registration to the Apprenticeship Adviser. The Labour Court set aside the
termination order. Against that a writ petition was filed before the High Court
and the High Court dismissed the writ petition and the present appeal by way of
special leave by the Management. As per the award dated 29.4.1994, the
respondent himself admits that he was appointed as a Cashier on 31.3.1986 under
the provisions of the Apprentices Act, 1961 and his services were terminated on 31.3.1987 but no registration of
the apprenticeship was sent to the Apprenticeship Adviser. Since it is the case
of the respondent himself that he was appointed as apprentice in the Branch as
Cashier and his appointment was for fixed period of one year, we fail to
understand how can respondent be given the benefit of Section 6N of the U.P.
Industrial
Disputes Act, 1947 after the expiry of the period of one year. His services
automatically stood terminated and he cannot claim that he has become the
employee of the Management. He was a trainee for a period of one year as an
apprentice in Cash Branch and after the expiry of the period of one year he
cannot claim that he be treated as a workman. In this view of the matter, his
services stood terminated in 1987 and dispute was raised in 1993. Therefore,
the view taken by the Labour Court as well as by the High Court cannot be
sustained and accordingly, we allow this appeal, set aside the award dated
29.4.1994 made by the Labour Court in Industrial Dispute No.277/1993 and the
order dated 14.7.2003 passed by the High Court in Civil Misc. Writ Petition No.34389/1994.
Civil Appeal No.2193/2004.
Respondent- Sushma Gupta was appointed on 1.7.1988 as an apprentice Clerk
for a period of one year. She was getting a salary of Rs.290/- per month. Since
her work was satisfactory hence the employer extended her tenure by one year.
Her services were terminated on 1.7.1990 without any prior notice. She raised
an industrial dispute and the matter was referred for adjudication by the Labour
Court. The appellant- Management filed their reply and pointed out that she
was recruited as an apprentice trainee as a Clerk for a period from 4.7.1988 to
3.7.1989 under the provisions of the Apprentices Act, 1961 and on
completion of the training the Management is not under an obligation to give
her employment. It was also alleged that the regular recruitment to the post of
Clerk is done by the Electricity Service Commission according to the prescribed
Rules and it was pointed out that she was only appointed as apprentice trainee
and not recruited through the Electricity Service Commission . Though the
respondent has denied that she was not appointed by the appellant-Management
for training but she was working against a regular post of the nature. The
Management examined four witnesses and they said that the respondent was
engaged for a training purpose only. They produced the copy of the training
form which was filled up by the respondent as Ext.E/1 with her signature and
she also admitted her signature on the form which was filled up by her for
training purpose. The Management examined one Layak Singh as EW-1 who is Head
Clerk on the establishment of the Management and he produced the agreement Ext.E/1
and it was pointed out that after the completion of the training as apprentice
her services were terminated but on the recommendations she is allowed to
continue for some time. From these facts it is more than apparent that an
agreement was filled up by the respondent- incumbent and she admitted herself
her signature on that agreement/contract. It may be that said
agreement/contract has not been sent for registration before the Apprenticeship
Adviser but the fact remains that she was recruited as apprentice and if she
was recruited as apprentice then she cannot be treated as a workman as
discussed above in detail and therefore, the award given by the Labour Court
treating her to be workman under Section 2(s) of the U.P. Industrial
Disputes Act, 1947 cannot be sustained. This award made by the Labour Court
was affirmed by the High Court by order dated 15.7.2003 passed in Civil Misc.
Writ Petition No.30165/1999 filed by the Management challenging the award of
the Labour Court. The view taken by the High Court in this case cannot be
sustained in view of the legal position already examined above. Hence, we allow
this appeal, set aside the order of the High Court as well as the award made by
the Labour Court. No order as to costs.
Civil Appeal No.9233/2003.
Respondent-Avnindra Kumar Sharma was engaged in the establishment of the
appellants on 27.7.1991 due to death of his brother on 11.10.1984 on
humanitarian ground. It is alleged that he was engaged as a apprentice under
the Apprentices Act, 1961 on the post of Switch Board Attendant without
completing the formalities. He was engaged as apprentice by the Engineer at 220
Grim Union, UPSEB, U.P., Kanpur. Then his services were transferred to J.E.,
132, K.V.Asainee, Dibiyapur, District.
Etawa. He was paid at the rate of Rs.330/- per month initially.
Thereafter, it was increased to Rs.380/- per month. It is alleged that
instead of accepting his demand for enhancement of salary, the services were
suddenly terminated on 27.7.1993. The case of the Management is that neither he
was appointed as a workman nor his services were ever terminated and there was
no necessity of complying with the provisions of Section 6N of the U.P. Industrial
Disputes Act, 1947. It was contended that the respondent applied to the
Principal and Assistant Apprenticeship Adviser, Industrial Training Institute, Kanpur
and his name was forwarded. Thereafter, he was engaged for training for a
specified period of two years. The respondent filed a rejoinder and pointed out
that neither any contract for apprenticeship was registered with him nor any
registration number was allotted to him. The case of the respondent was that he
was engaged as a dependent of the deceased employee on a condition that after
training he will be made regular. He has already received a compensation for
the death of his brother. It is stated that at the time of termination he was
getting Rs.380/- per month whereas under the Apprentices Act, 1961 he would have got Rs.700/-.
The Management examined one Shri R.P.Gupta, J.E., Dibiyapur under whom he
was working and he has stated that the respondent was paid at the apprentice
rate. The Management also examined one Shri Mohammuddin Ansari, Head Clerk
(Construction Division). He has deposed that respondent has not given any
application as dependent of the deceased employee and he also pointed out that
as per Ext.E/2 the rules for employment to the dependent of the deceased
employee there is no provision to provide employment to the brother of a
deceased and he deposed that the name of the respondent was referred by the
Apprenticeship Adviser according to Ext.E/3 and respondent was selected as a
Switch Board Attendant apprentice. However, he pleaded that he cannot say that
any registration form was filled by the respondent or not.
Management also examined Shri S.R.Chowdhary, Sub- Divisional Officer, Etawa
and he has deposed that the respondent was working as a trainee under him and
he admitted that he worked from 1.12.1991 to 27.7.1993.l But the case of the
respondent was that he was employed as a brother of deceased employee, but that
cannot be sustained because there was no provision for giving employment to the
brother of the deceased employee of the Board and the Labour Court also found
that 26 names were sent by the Principal and Assistant Apprenticeship Adviser.
Respondent's name appeared in that list and it was stated that respondent has
been selected for training as provided under the Apprentices Act
but neither any contract was executed nor the same was registered. Therefore,
in this context the Labour Court came to the conclusion that though he was
recruited under the Apprentices Act, 1961 but no contract was executed nor was it registered. The fact of the
matter is that the incumbent was recruited and appointed as apprentice Switch
Board Attendant, therefore, his recruitment for all purposes will be deemed to
be under the Apprentices Act, 1961. The case put up by the respondent that he was employed on the
basis of being the brother of the deceased employee of the Board has not been
found established by the Labour Court and rightly so because there is no
provision for appointment of a brother of the deceased as a dependent under the
Rules. Therefore, his case failed on that ground. From the above facts it also
transpires that his name was sent by the Principal and Assistant Apprenticeship
Adviser for registering him as a trainee and he has worked as a Switch Board
Attendant for a period of two years that is the tenure for the training and
after the lapse of the training his services were terminated. In these
circumstances, the view taken by the Labour Court cannot be sustained and the
respondent cannot be treated as a workman so as to be covered by Section 6N of
the U.P. Industrial
Disputes Act, 1947. This award has been upheld by the High Court on a writ
petition filed by the Management challenging the award. In view of the position
that emerges that the respondent was engaged under the Apprentices Act, 1961 as a Switch Board Attendant for a period of two years, as such, he
cannot be treated as a workman. Therefore, the view taken by the Labour Court
in the award dated 10.11.1998 in Adj. Case No.99/1998 and affirmed by the High
Court in Civil Misc. Writ Petition No.13481/1999 cannot be sustained. The Civil
Appeal is allowed. The order of the High Court dated 15.7.2003 as well as the
award dated 10.11.1998 made by the Labour Court is set aside.
Civil Appeal No.8386/2003.
The case of the respondent-Manoj Kumar Shukla is that he was appointed on
the post of Store Keeper as an apprentice under the Apprentices Act, 1961 with effect from 10.10.1988.
His services were terminated on 9.10.1989. It is alleged that no examination
of National Council was undertaken and work was taken from him as the regular
worker. Further, the case of the respondent is that he was not an apprentice
under the Apprentices
Act and he was a workman under the U.P. Industrial Disputes Act, 1947
and his services were terminated on 10.10.1989 without following the provisions
of Section 6N of the U.P. Industrial
Disputes Act, 1947. Hence, the termination of his services is illegal.
Management contested the matter and pointed out that the incumbent was
appointed under the Apprentices Act
and he was not given any independent work of Store Keeper and he appeared in
the examination conducted by the National Council and the incumbent was given
regular training for Store Keeper and the training period of the incumbent was
for one year and only after expiry of period of one year on 9.10.1989 his
services stood terminated automatically. Therefore, it is pointed out that he
cannot be treated as a workman as his appointment was for a period of one year
as an apprentice.
However, Labour Court by its order dated 23.1.1995 found that no document
had been produced by the Management.
Although the respondent has produced documents/ certificates Exts.W/1 and
W/2 dated 6.11.1989 and 29.1.1990 issued by the Management and the trade shown
therein is that of the Apprentice (Store Keeper) but no document of the
registration was produced. It was also stated by the Management that the river
side centre where respondent was working as a trainee was closed on 7.1.1991
and the respondent was recruited by the pKanpur Electricity Supply
Administration (KESA) but still the Labour Court concluded that the removal of
workman- Manoj Kumar Shukla is not constitutional, legal and he is entitled to
full wages. Then a review application was filed by the Management and it was
stated that the award was received in the office from there it appears that
certificate Exts.W/1 and W/2 issued by the Management it is clear that
incumbent was appointed as a Store Keeper in the Power House and not in the
river side Power House and he never worked there and the river side Power House
has been closed. It was alleged by the Management that they did not get proper
opportunity to lead evidence to this effect.
The Labour Court observed that sufficient opportunity was given to the
Management but they failed to avail the same.
However, it was admitted by the Presiding Officer that there is an error
that Manoj Kumar Shukla was appointed in the KESA and not in the river side
Power House and this is the error which crept in the award dated 23.1.1995 and
therefore he rectified this error and it is also observed that since both the
parties agree that the incumbent was appointed in the KESA at Kanpur and not in
the river side Power House, accordingly the award was modified to this extent.
However, the award passed by him on 23.1.1995 was upheld. Aggrieved by this
order, the Management filed a writ petition before the Allahabad High Court and
the High Court affirmed the award. After going through the award as well as the
order of the High Court it appears more than apparent that there might have
been failure on the part of the Management to lead the evidence but the fact of
the matter is that it is the case of the applicant himself that he was
appointed as apprentice Store Keeper as is apparent from Exts.W/1 and W/2.
Therefore, we cannot loose sight of the fact that he was appointed apprentice
Store Keeper in the Power House and after the expiry of the period of one year
applicant cannot claim to have been treated as workman. He was appointed on
10.10.1988 to 9.10.1989 and he put up the case before the Labour Court that he
was appointed as an apprentice Store Keeper under the Apprentices Act, 1961. Now, he cannot be permitted to deny that he was not appointed under
the Apprentices
Act and he was appointed as a workman and therefore he seeks the benefit of
Section 6N of the U.P.
Industrial
Disputes Act, 1947. He cannot be permitted to withdraw from this position.
From Exts.W/1 and W/2, certificates issued by the Management on 6.11.1989 and
29.1.1990, it is apparent that he was shown as an apprentice Store Keeper. Just
because of the failure of the Management to defend the case properly the
benefit cannot be claimed by the workman.
Because of his own showing it is apparent that his appointment was Store
Keeper for a period of one year, therefore the award given by the Labour Court
cannot be justified. More so the termination was in the year 1989 and he raised
the dispute in 1993. Therefore, taking in to consideration all these factors,
we are of the opinion that respondent cannot claim any benefit of being a
workman. He was apprentice and after the completion of the period of
apprenticeship as a Store Keeper he has no right to continue and he cannot be
treated to be a workman.
Accordingly, the award given by the Labour Court dated 23.1.1995 and
modified on 28.1.1997 are set aside, likewise the order of the High Court
affirming the award. Consequently, the appeal is allowed.
Civil Appeal No.14/2004.
The case of the respondent- Subodh Kumar was that he was appointed to the
post of a Clerk in August, 1981 and as per the letter of the Electricity Board
he had participated in the sports events in 1982-1983 and also obtained three
certificates. He worked on the post of Clerk till 16.2.1984 and his services
were terminated on the morning of 16.2.1984. Therefore, he raised industrial
dispute that since he has worked for more than 240 days as such he is a workman
and entitled to the protection of Section 6N of the U.P. Industrial
Disputes Act, 1947. The Labour Court found that there is non-compliance of
Section 6N of the Act and set aside his termination/ retrenchment. The
Electricity Board contested the matter and submitted that the recruitment to
the Electricity Board is regulated by the Rules for appointment/ transfer/
selection/ promotion of employees and it is also contended that in fact the
respondent was engaged as an apprentice trainee in the appellants' organization
under the Apprentices Act, 1961 for one year. He started his training on 17.2.1983 and on
completion of the one year training, his services automatically came to an end
on 16.2.1984 and it was contended that according to Section 18 of the Act a
trainee does not fall under the definition of workman and accordingly labour
laws are not applicable to him and the Management is not obliged to appoint him
in the Department. The learned Labour Court after considering the evidence and
relying on the sports certificates inferred that the incumbent was appointed as
a workman and not apprentice trainee. However, the Labour Court disbelieved the
evidence of Harish Chandra, WE-1 who deposed that on the basis of Ext.E/1 the
incumbent was selected apprentice. Though, the incumbent has denied his own
signature, Ext.E/1 is the application by the concerned workman and Ext.E/2 is
the list of the persons selected as the apprentice trainees and name of the
incumbent appears at Sl.No.96. But curiously enough learned Labour Court has
disbelieved them on the ground that since respondent has denied his signature,
therefore, they should have produced the handwriting expert and the list,
Ext.E/2 in which name of the respondent appears at Sl.No.96 was also
disbelieved. The learned Judge says, " on what basis it has been shown is
not on record". He further goes to say that if the workman has been
engaged apprentice trainee then an agreement ought to have been executed but no
such agreement is available on record. He says that an agreement should also be
brought on record and same is to be proved and in the absence of the same the
story of the apprentice trainee was subsequently developed and he held that
respondent cannot be deemed to be an apprentice trainee under the Apprentices
Act, 1961. This finding of the learned Labour Court appears to be perverse on
the face of it. Just on the basis of the two sports certificates he has rushed
to conclude that the incumbent was appointed as a workman. The recruitment in
the Electricity Board is under service rules and when the evidence has been
produced, Ext.E/2, a list of the apprentices recorded in pursuance of his
application, Ext.E/1 and the name of the incumbent appears at Sl.No.96, we fail
to understand how such primary evidence of the Management could be so lightly
brushed aside. The application by the respondent and that name of the
respondent appears at Sl.No.96 of the list of the apprentices go to show that
he was apprentice and there was no necessity for the Management to bring
hand-writing expert to substantiate that the application bears the signature of
the respondent when there is already corroborating evidence available on record
that the name of the respondent appears in Ext.E/2, list of the apprentices and
that has been proved by the Management, that is sufficient to show that the
incumbent was recruited as a trainee apprentice and after the tenure of the
period of apprenticeship, his services came to an end. Just because his
agreement was not set for registration that will not change the character of
the incumbent as apprentice trainee. Apart from this, the service was
terminated on 16.2.1984 and the dispute has been raised in 1997. Unfortunately,
High Court has also affirmed the same. The award as well as the order of the
High Court cannot be sustained on the basis of the fact that there is primary
evidence which goes to show that the incumbent was recruited as apprentice
trainee as a Clerk for a period of one year and after the expiry of one year he
has no right to continue and he cannot be treated as workman. The view taken by
the Labour Court in the award dated 2.1.1998 affirmed by the High Court cannot
be sustained. Consequently, we allow this appeal, set aside the award of the Labour
Court dated 2.1.1998 and the order of the High Court dated 15.7.2003 in Civil
Misc. Writ Petition No.41027/1998.
Civil Appeal No.8385/2003.
Respondent Shiv Kumar Bhatia was appointed by M/s.Kanpur Electricity Supply
Administration, Kanpur on 31.3.1986 on the post of Store Keeper. The case of
the respondent was that his services were wrongly terminated by order dated
31.3.1987 which was not legal. Therefore, he raised an industrial dispute and
the matter was referred to the Labour Court and Labour Court found that the
Board has not produced any evidence except the application vide 13-B on behalf
of the Management wherein it is stated that the contract was entered in to
between one S.K.Bhatia and the Management under the provisions of the
Apprentices Act, 1961. Though opportunities were given to the I.T.I. Kanpur for producing
the contract but they did not file the contract alleged to have been entered in
to between workman and the Management. It was alleged that the application was
neither registered nor any certificate issued to him after examination of the
National Council and it was alleged that the Management took the work from the
respondent as a permanent employee. But they illegally terminated the services
on 31.3.1987. Though the Labour Court has held that the respondent remained an
apprentice although he was a workman under the U.P. Industrial
Disputes Act, 1947 which establishes a relationship of a master and servant
between them and that the Management terminated his services without complying
with the provisions of Section 6N, therefore, it concluded that the order of
termination/ retrenchment is bad. The Management's stand was that he was an
apprentice trainee from 31.3.1986 to 30.3.1987 and he cannot be treated as a
workman and they led evidence of Shri K.L.Mehrotra who submitted that the
incumbent was an apprentice trainee which is apparent from his own application
and a contract was entered in to between concerned workman and the Management. Shri
Mehrotra stated that contract was got signed for the work of apprentice but the
same is not available in the official record. The learned Labour Court on these
facts inferred that formalities required under the Apprentices Act, 1961 were not complied with and therefore, the incumbent shall be treated
as a workman and accordingly granted relief. Once it is accepted by the Labour
Court that the incumbent was recruited under the Apprentices Act, 1961 though the formalities might not have been completed/ produced but the
fact remains that it is the finding of the Labour Court that the incumbent was
appointed under the Apprentices Act, 1961, which is apparent from the period that is 31.3.1986 to 31.3.1987 (
one year) which is a normal period for training for apprentice Store Keeper and
after the end of this period respondent was not allowed to continue. It is
apparent that he worked for a period of one year and the Management has
produced his application that he was apprentice trainee but just because they
could not produce the contract that will not change the character of the
appointment of the incumbent. The Labour Court has observed, "since the
Management has not complied with the formalities required under the Apprentices
Act, 1961 therefore, the concerned workman is not an apprentice". This
pre-supposes that the Labour Court accepted the incumbent as apprentice under
the Apprentices
Act though the necessary formalities might not have been completed that would
not change the character of the incumbent from the apprentice to workman. The
character of the incumbent as an apprentice trainee cannot be changed as he
owes his existence under the Apprentices Act, 1961 and
after the tenure of one year his services were bound to come to an end and he
cannot convert this character of a trainee to an employee of the Management.
Apart from this, the services were terminated way back March 1987 and the
dispute was raised in 1994. Therefore, the view taken by the Labour Court of
treating the respondent apprentice/ trainee to that of a workman cannot be
sustained, likewise the order of the High Court dated 15.7.2003 in Civil Misc.
Writ Petition No.19422/1999 whereby this order of the Labour Court has been
affirmed by the High Court. Accordingly, we allow this appeal, set aside the
order of the High Court dated 15.7.2003 as well as the award dated 13.5.1998
made by the Labour Court. No order as to costs.
Back
