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THE MANAGEMENT OF versus THE PRESIDING OFFICER,2. M.BALASUNDARAM

High Court of Madras

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The Management of v. The Presiding Officer,2. M.Balasundaram - W.P.No.18728 of 1994 [2002] RD-TN 386 (21 June 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Datedt: 21/06/2002

CORAM

THE HONOURABLE MR.JUSTICE A.K. RAJAN

W.P.No.18728 of 1994

The Management of

TI Diamond Chain Limited,

Ambattur, Madras-53. .. Petitioner vs.

1. The Presiding Officer,

II Additional Labour Court,

Madras.

2. M.Balasundaram .. Respondents Petition filed under Article 226 of the Constitution of India, for issue of writ of certiorari, as stated therein.

For Petitioner ..... Mr. S.Ravindran For Respondents ..... Mr. S.Kumarasamy, for R.2 :O R D E R



This petition is for issue of writ of certiorari to call for records of the first respondent in I.D.No.103/88 and quash its award, dated 3.3.1994.

2. The writ petitioner is the manufacturer of cycle chains and industrial chains having its factory at Ambattur. They are having apprentice scheme in which they select candidates for "Trainees" and on the successful completion of the training, the Trainees will be considered for regular employment. The training includes job practical training. If any trainee shows lack of interest in training or neglect his work, disciplinary action will also be taken. The Trainees are required to attend the classes which are periodically conducted and they are to attend periodical tests for evaluation. Second respondent was appointed as a Trainee on 29.6.1983 for a period of three years. The letter of appointment clearly provides that the Trainee will be on the job in the various departments of the factory. On 13.6.1994, the second respondent was warned for the unauthorised absence for 13 days. Again on 1.2.1985, he was warned for unauthorised absence for 18 days. On 30.5.1985, he was asked to appear for Trade Test. Again on 5.12.1985, he was cautioned about his unauthorised absence for 32 days. On 3.2.1986, he damaged a work in progress for which he was given a warning memo, dated 20.6.1986. After the end of the training period, when the second respondent was considered for regular appointment, it was found that his attendance and performance were not satisfactory and therefore, he was not given regular employment. Therefore, with effect from 28.6.1986, his training was brought to an end. The second respondent raised an industrial dispute against the cessation of training and the same was referred for adjudication before the first respondent in I.D.No.103 of 1988 on the file of the Labour Court, Madras. The first respondent passed an award holding that the petitioner has not produced any training scheme or rules and regulations for engaging trainees. The disciplinary action initiated against the second respondent would show that the second respondent was not treated as trainee since the disciplinary action was taken as per the Standing Orders, he was to be considered as regular employment. So, in the award it is also stated that the trainees have been engaged only with a view to deny them the statutory benefits applicable to the permanent workmen. The non-engagement of the second respondent was not justified and he was ordered to be re-instated with backwages. Challenging that award, the present writ petition has been filed.

3. No counter was filed by the respondents.

4. The counsel for the petitioner submitted that the second respondent was appointed as a trainee for a period of three years from 29.6.1 986. On completion of the period of training, his training came to an end, but the second respondent claimed that he was to be treated as a regular employee and raised an industrial dispute. The Labour Court also passed an award upholding his claim and directed reinstatement with backwages. This award of the Labour Court is not legal. The Labour Court has found that the second respondent was a regular employee, since the management did not consider him as a trainee, but considered him only as a regular worker. Further, it states that the period of three years as trainee is too long a period. These reasons based upon which the award was passed, are untenable. The Labour Court did not consider Exs.M1 to M.12 which are the certificates. Sub-Clause 5 of Clause 2 of the Standing Order reads as follows: " An Apprentice/Trainee is learner. The period of Apprenticeship Training shall not in any case exceed 3 years. " When the Standing Orders provide for recruiting trainees or apprentices for years, the finding of the Labour Court that the period of three years is too long a period, cannot be held to be valid. This argument of the counsel for the petitioner has force; when the certified Standing Orders themselves provide that the period of training for apprentices/trainees should not exceed three years, no authority including the Labour Court has got a right to hold that the period is too long. The Labour Court has exceeded its limits in so holding. Therefore, that part of the Labour Court's award is liable to be set aside.

5. The learned counsel for the petitioner further submitted that the Labour Court has held that the petitioner was to be treated as a regular/permanent employee. Absolutely, there was no material to hold so. The learned counsel for the second respondent submitted that the workmen as defined in the Certified Standing Orders includes even apprentices/trainees. Clause-2 of the Certified Standing Orders reads as follows: "Workmen shall be classified as follows: namely (1) Permanent, (2) Probationer (3) Temporary (4) Casual (5) Apprentices/Trainees and their names shall be entered as such in the appropriate Muster Rolls. " Therefore, the Certified Standing Orders themselves recognized the apprentices/trainees as workmen and therefore, the second respondent is a workman. Therefore, the provisions of the Industrial Disputes Act are applicable. Therefore, he cannot be terminated without following the procedures as per the Industrial Disputes Act.

6. Further, the learned counsel for the second respondent submitted that though the petitioner was termed as a trainee, he was working as a permanent employee and cause production just like a permanent employee. Further to appoint persons in the name of apprentices/ trainees amounts to unfair labour practice. Against the second respondent, disciplinary proceedings were also initiated for certain misconduct and he was also awarded punishment on 20.6.1986. After the punishment period, he was directed to join duty on 22.6.1986. Thereafter, the very next day, viz., on 23rd June, 1986, "order of termination" was issued terminating his employment with effect from 28.6.1986. This impugned order is not a simple order of termination, but it is an order of punishment. Therefore, in view of the fact that no procedure as contemplated under the Industrial Disputes Act was followed before imposing punishment, this order is illegal and hence it is liable to be set aside and the Labour Court has rightly set aside the order. Further, Section 2(oo)(bb) provides as follows:

" {(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or}" As per sub-section (bb), if the contract of employment is terminated without any reason, it should be deemed to be invalid and the contract should be extended even after the completion of the period of contract. Therefore, the Labour Court is right in holding that the workmen continue to be a workman under Section 2 (oo)(bb). Therefore, the award of the Labour Court award is legally valid and cannot be set aside and the writ petition is liable to be dismissed.

7. Counsel for the petitioner submitted that as per the decision of the Supreme Court, in the case of E.S.I. Corporation v. Tata Engineering and Loco Company reported in 1976 (1) L.L.J. 81 has held, " The heart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. Such a person remains a learner and is not an employee." In the case Director, Indian Institute of Technology v. H.Khan (2000 (4) L.L.N. 49, the Allahabad High Court held,

" The position of the respondent was akin to that of a student and not that of an employee. ? The order of terminating the training of the respondent on the ground of bad academic performance, therefore, could not be faulted on any principle of natural justice. "

In the case, Achutan v. Babu (1997(1) L.L.J. 621, the Kerala High Court following the earlier decision of the Division Bench of the same Court held, " an apprentice can, at best, have a prospective hope that he will be absorbed in the establishment later and he is not entitled to wages. " Learned counsel for the petitioner submitted that the Labour Court ignoring all these decisions gave a finding that the second respondent was a regular employee. Therefore, that award of the Labour Court cannot be sustained as legal and valid.

8. Learned counsel for the respondent referred to M.P.B. Karmachari Sangh v. Syndicate Bank (1996 (2) L.L.N. 747, where the Court has culled out the principles laid down in various cases, as follows: " From the decisions noted above, it becomes apparent: that the provisions of s.2(oo)(bb) are to be construed benevolently in favour of the workman;

(ii) that if the workman is allowed to continue in service by making periodic appointments from time to time, then it can be said that the case would not fall under S.2(oo)(bb);

(iii) that the provisions of S.2(oo)(bb) are not to be interpreted in the manner which may stifle the main provisions; (iv) that if the workman continues in service, the non-renewal of the contract can be deemed as mala fide and it may amount to be a fraud on statute;

(v) that there would be wrong presumption of non-applicability of S.2(oo)(bb) where the work is of continuous nature and there is nothing on record that the work for which a workman has been appointed had come to an end. "

Further, he referred to the judgment in the case, H.P.Choudhary v. R.S.E. Board (1986 (2) L.L.N. 976, wherein the Rajasthan High Court has held, the definition of workman in Section 2(s) of the Industrial Disputes Act cannot be read in isolation; while construing the said provision, one cannot lose sight of the provision contained in Section 1 8 of the Apprentices Act. Further, it was held,

" The Apprentices Act is not an exhaustive Act to cover all types of apprentices, because in view of the definition of the 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 the Apprentices Act executed under Section 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 this connection, reference may be made to the Rajasthan State Electricity Board Technical Workmen Service Regulations, 1975. In the said regulations, the term, "workman" has been defined in regulation 3(i) to include an apprentice. Regulation 5 contains the classification of the various types of workman governed by these regulations and in Cl.(vi) of regulation, the apprentice has been defined as under: " (vi) Apprentice: A learner, who is or is not paid an allowance during the period of his training including an apprentice under the Apprenticeship Act, 1961. "

This would show that an apprentice who is a workman under the said regulations would include a person who may not be an apprentice under 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 the Industrial Disputes Act and would not be governed by the provisions of the Industrial Disputes Act. " Further, he referred to the decision in, Dilip Hanumantrao Shirke v. Zilla Parishad (1989 (2) L.L.N. 590, wherein it was held, " The nature of employment will have to be determined with reference to the nature of duties performed by the workman and type of job the workman was entrusted with. "

9. In so far as the status of the apprentice is concerned, the Supreme Court in the case, 1976 (I) L.L.J. 81 referred above has held that an apprentice was an employee under the E.S.I. Act. Though this decision is given in respect of E.S.I. Act and since the E.S.I. Act does not include apprentice as a worker, in contra-distinction with the Industrial Disputes Act in which the apprentice is also included within the definition of worker, still the observation made by the Supreme Court equally applies to the case of an apprentice. The Supreme Court has held in clear terms that the heart of the matter in apprenticeship is, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. Such a person remains a learner and is not an employee. This proposition of law is applicable to all cases of apprentices. The other decisions cited by the counsel for the petitioner by Kerala High Court as well as the Allahabad High Courts also appear to be following the decisions of the Supreme Court. An apprentice is only a trainee. His status is only that of a student who is learning the work of a specialized nature. Therefore, such a student/trainee or an apprentice cannot be considered as an employee. Further, even as per the Certified Standing Order of the petitioner-company the apprentice/trainee is a learner. The status of an apprentice is only a learner and not an employee.

10. The Labour Court has come to the conclusion that he was a regular employee since he was doing the work of a regular employee. This conclusion is unwarranted in view of the terms of the order issued while regarding the second respondent as an apprentice. The order appointing the second respondent as an apprentice, reads as follows:

" ..we are pleased to appoint you as a Trainee under our apprenticeship-training scheme on the following terms and conditions ?..: " (1) The period of training will be 3 years from the date your report for training. ?.

(2) Your training is liable to be terminated without assigning reasons without notice and without any compensation in lieu thereof at the discretion of the company at any time during this period.

(3) ??

(4) Your training will be on the job in the various departments of the factory.

(5) ???.

(6) ???

(7) You will be required to attend classes that may be conducted periodically by us to enable the trainee to have a proper appreciation of the industrial climate and factory environment. Single test will be conducted to assess your proficiency attained in the topics handled in these classes. You are bound to attend those classes and the tests that may be held in this regard. "

(8) You will be governed by the standing orders of the factory and other rules and regulations as may be in force from time to time. (9) On satisfactory completion of the three year training period, you will be considered for employment as a semi-skilled operator subject to your suitability and the requirements of the company. " In Clause-4 of the above conditions, it is specifically stated that training will be "on the job" in the various departments of the factory. Therefore, merely because he was working just like any other permanent employee, the status of apprentice does not become one of permanent employee. Therefore, the reasoning of the Labour Court that since he was working and was producing products just like any other permanent employee, he must be treated as a permanent employee, cannot be accepted as valid. 11. The Labour Court has also come to the conclusion that there was no evidence to show that classes were conducted, but the witnesses examined on behalf of the management have stated clearly that training was imparted and tests were conducted. Therefore, the conclusion of the Labour Court that there was no training imparted, is perverse, as it is not based on evidence, but contrary to the evidence on record. Therefore, finding of the Labour Court that the nature of the employees of the second respondent is not that of the trainee/apprentice, cannot be sustained. Therefore, that finding is liable to be set aside and hence, it is set aside.

12. The learned counsel for the second respondent submitted that in view of Section 2(oo)(bb), a contract of employment even after the completion of the period of contract deemed to continue and therefore, he must be considered as a worker. The counsel appearing for the petitioner replied that the Supreme Court in the case of Kalyani Sharp India Limited v. Labour Court No.1, Gwalior and another (2000 (1) L.L.J. 1346) has held that, " The order of employment itself clearly sets out the terms thereafter which makes clear that the facility of providing training to him could be put to an end at any time without assigning any reason whatsoever and his services could be regularized only on satisfactory completion of his training. If these clauses are read together it is clear that he was under probation during the relevant time and if his services are not satisfactory, the same could be put an end to. "

In that case, the services of a trainee was terminated before the expiry of the probationary period and in such case, there was no question of issue of notice before terminating the services. In this case also, the terms of appointment themselves show that he was an apprentice and could be terminated at any time before the period of training without assigning any reasons. Therefore, the non-extending of the training period does not violate the provisions of S.2(oo) (bb) of the Industrial Disputes Act. This argument of the counsel for the petitioner has force. The Supreme Court in the above case has held even a probationer can be terminated before the period of probation ends without assigning any reason. Therefore, the case of an apprenticeship is much lower in the grade of employment as per the Certified Standing Orders of the petitioner. Therefore, the training can be brought to an end without assigning any reason.

13. The argument of the counsel for the second respondent is that the termination is in the nature of the punishment and therefore, such an order could not be passed, is not acceptable. A reading of the impugned order does not show by any stretch of imagination that it is an order of punishment. It is an order terminating apprenticeship simpliciter. Therefore, it cannot be said to be punitive in nature. Merely because he was directed to appear for duty on 22.6.1993 and on the very next day on 23.6.1993, the order terminating his training was given to him, does not make the impugned order punitive in nature. That order dated 23.6.1993 was to come to effect from 28.6.1993. That order was served well in advance. The mere fact that punishment of suspension for a period of two days prior to 22.6.1993 does not make the impugned order punitive in nature. Therefore, the termination of apprenticeship is not by way of punishment; it is not punitive in nature. Inasmuch as the petitioner was only a trainee/apprentice and he was only a learner, merely the Certified Standing Orders include the apprentice, it does not enhances the status of the apprentice as that of the permanent worker.

14. A perusal of Clause-2 of the Certified Standing Orders shows that there are five categories of workmen and apprentice being the last, casual worker is just above the apprentice and temporary workmen is above the casual workman and probationer is above the temporary workman and permanent workmen is on the highest of the cadre. Therefore, merely because, the Certified Standing Orders apply to apprentice, the apprentices do not automatically get the status of permanent employee.

15. For the foregoing reasons, the award of the Labour Court holding that the apprentice has become permanent employee, because he was doing the work of a permanent employee is not legally sustainable; it is contrary to the Certified Standing Orders of the petitioner; it is contrary to the decisions of the various High Courts and the Supreme Court; it is contrary to the Industrial Disputes Act itself. Therefore, the award of the Labour Court is set aside and the writ petition is allowed. No costs. 21.6.2002

Index: Yes

Web Site: Yes

vs

Assistant Registrar.

True copy

Sub-Assistant Registrar,

Statistics/C.S.

TO:

The Presiding Officer,

II Additional Labour Court,

Madras.

A.K. RAJAN, J.

Order in W.P.No.18728 of 1994




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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