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THE KISAN SAHKARI CHINI MILLS LTD. THRU' GENERAL MANAGER v. PRESIDING OFFICER LABOUR COURT U.P. & ANOTHER - WRIT - C No. 15852 of 2003  RD-AH 310 (13 July 2004)
Civil Misc. Writ Petition No.15852 of 2003
The Kisan Sahkari Chini Mills Ltd., Nazibabad, Bijnor
v. Presiding Officer, Labour Court, U.P., Rampur
Civil Misc. Writ Petition No.15855, 15856, 15857, 15859,
15860 and 20222 of 2003
The Kisan Sahkari Chini Mills Ltd., Nazibabad, Bijnor
v. Presiding Officer, Labour Court, U.P., Rampur
Hon'ble R.K.Agrawal, J.
All these writ petitions involve a common question of law and have been filed by the same employer. They have been heard together and are being decided by a common judgment.
The Kisan Sahkari Chini Mills Limited, (hereinafter referred to as "the petitioner") is a registered cooperative society running a sugar mill at Nazibabad in the district of Bijnor. It is engaged in the business of manufacture and sale of crystal sugar by vacuum pan process having a crushing capacity of 1250 TCD. In the last week of January, 1990, the petitioner issued an advertisement in the newspaper inviting applications for 25 apprentice Clerk. The training period specified was for one year and the selected apprentices were to be given stipend of Rs.700.00 p.m. Pursuant to the aforesaid advertisement, all the respondents applied and were appointed on the post of the apprentice Clerk. The appointment letters were issued in the last week of March, 1990. The respondents joined and continued to work till 8th July 1991. It may be mentioned here that the period of apprenticeship was extended till 30th June 1991. Being dissatisfied with their disengagement, the respondents raised industrial dispute which was referred for adjudication to the Labour Court, Rampur. The Labour Court, vide separate awards, dated 31st May 2002, held that the termination of the services of each of the respondent workmen with effect from 30th June 1991 is illegal and directed for reinstatement with full back wages and continuity of service. The Labour Court had found that under Section 2(z) of the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as "the U.P.Act"), the definition of the word "workman" includes apprentice and, therefore, the respondents are workmen. It further held that each of the respondents have worked for 240 days in a year and, therefore, the termination is illegal as the procedure prescribed under the U.P.Act has not been followed. The awards given by the Labour Court are under challenge in the present petitions.
I have heard Sri A.K.Misra, the learned counsel appearing for the petitioner, and Sri G.R.Jain, the learned counsel appearing for the respondent workmen in all the writ petitions.
Sri Misra, the learned counsel for the petitioner, submitted that it is not in dispute that the contesting respondents were appointed as apprentice Clerk for a period of one year on a monthly stipend of Rs.700.00 After the period of one year had expired, the apprenticeship period was extended till 30th June 1991, whereafter they were disengaged. These respondents do not fall under the definition of the word "workman", as given either under the U.P. Act or under the Industrial Disputes Act, 1947 (hereinafter referred to as "the Central Act"). They have neither been engaged under the provision of the Apprentices Act, 1961 nor under any scheme sponsored or approved by the State Government. Thus, the view taken by the Labour Court is erroneous and liable to be set aside. He relied upon the following decisions:-
(i) M/s U.P. State Spinning Mills Co. (No.II) Ltd. v. Labour Court, U.P., Allahabad and another, 1997(75) FLR 237;
(ii) U.P. State Electricity Board and others v. P.O., Labour Court, Kanpur and others, 1998 (78) FLR 511; and
(iii) M/s U.P. Sugar Company Limited, Seorahi v. Ram Nath Prasad and others, 1996 LIC 2509
He further submitted that an apprentice has no vested right to be appointed even if a vacancy has arisen. He relied upon the following decisions:-
(i) Rajendra Singh and others v. U.P.State Electricity Board, Shakti Bhawan, Lucknow and others, 2000 (86) FLR 155; and
(ii) Mitrangshu Roy Choudhary v. Union of India and others, 1999 (82) FLR 239.
According to him, as the respondent workmen were appointed as apprentice Clerk for a fixed period, even if they had worked for 240 days in a year and their appointment has come to an end after the expiry of the stipulated period, their disengagement/termination cannot be said to be illegal and, therefore, they were not entitled for any relief.
Sri G.R.Jain, the learned counsel for the respondents, submitted that even though each of the respondents were appointed as an apprentice Clerk, they were performing a regular work of a Clerk and after the expiry of one year period for which they had been initially appointed, they were allowed to continue to work without there being any order of extension of the period. He, thus, submitted that the respondents are to be treated as workmen and as they have worked for more than 240 days in a year, the termination of services without complying with the provisions of Section 6-N of the U.P.Act is clearly illegal and contrary to law. He further submitted that the nomenclature given by the petitioner as apprentice Clerk is not determinative of the question as to the nature of appointment and the work which was being performed by the contesting respondents, had to be taken into account and, therefore, the award given by the Labour Court does not call for any interference. In the alternative, he submitted that the appointment of 25 apprentice Clerk at one time itself shows that sufficient work was available in the sugar mills and the petitioner has indulged in unfair labour practice by treating the respondent workmen as apprentices. He relied upon a decision of the Hon'ble Supreme Court in the case of Trambak Rubber Industries Ltd. (M/s) v. Nashik Workers Union and others, (2003) 2 UPLBEC 1845.
As the question of unfair labour practice was raised by Sri G.R.Jain for the first time during the course of arguments, the Court, vide order dated 7th May 2004, directed the petitioner to file a supplementary affidavit stating therein the regular strength of the Clerk working in its factory in the year 1990 and the Department in which these 25 trainees Clerk were accommodated. Pursuant to the aforesaid direction, a supplementary affidavit has been filed by the petitioner in which it has been stated that during the year 1990-91, the petitioner had on its roll 75 Clerk excluding these 25 apprentice Clerk. In all, it had 544 employees and had sufficient staff for the running of its Sugar Mill and was not dependent upon the 25 apprentice Clerk. The engagement was purely for the purposes of giving training.
Having heard the learned counsel for the parties, I find that the petitioner had invited applications for 25 posts of apprentice Clerk. The training period was for a period of one year and these apprentices were to be paid a monthly stipend of Rs.700.00. After the expiry of the period, the petitioner had permitted the contesting respondents to continue and their engagement was terminated with effect from 30th June 1991. As stated in the supplementary affidavit, the petitioner had 544 employees on its roll out of which 75 persons were working as Clerk excluding these apprentices. It is not the case of the contesting respondents that they have been appointed in accordance with any scheme prepared for the purposes of training in an industry and approved by the State Government. Further they have not been appointed under the provisions of the Apprentices Act, 1961. Section 2(a) of the U.P.Act defines "apprentice" to mean a person employed in an industry for the purpose of training therein in accordance with a scheme prepared in that behalf and approved by the State Government. Section 2(z) of the U.P.Act defines "workman". It includes "apprentice".
Thus, for a person to be covered by the definition of the word "workman" under the U.P.Act, if a person is an apprentice, he should come within the definition of the word as given under Section 2(a) of the U.P.Act. This Court in the case of M/s U.P. State Spinning Mills Co. (supra) has held that a person appointed as a trainee for training is not an apprentice and as such is not a workman. This Court has held as follows :-
"8. Since apprentice has been defined in Section 2(a), reference of apprentice in Section 2(z) cannot have any other meaning than that has been ascribed in Section 2(a). In view of the definition of apprentice given in the Act the apprentice included in the definition of workman cannot be interpreted to mean an apprentice other than apprentice defined in Section 2(a). If any such interpretation is made in that event, it would be contrary to the scheme of the U.P.Act itself. Now that the definition of workman in the Central Act includes apprentice but the word ''apprentice' has not been defined in the said Act, therefore, though an apprentice who may not be an apprentice as defined in Section 2(a) may be included in the definition of workman as defined in Section 2(s) of the Central Act. But in cases where U.P. Act applies, such an interpretation cannot be given because of the maxim "Generalia Specialibus non-derogant". Inasmuch as a general statute must yield to a special statute. The U.P.Act is a special statute applicable only to U.P. been enacted under the concurrent legislative power provided under the Constitution would prevail upon the general definition. Therefore, the apprentice included in the definition of ''workman' in Section 2(z) of the U.P.Act includes apprentice defined in Section 2(a) of the said Act and not otherwise."
In the case of U.P. State Electricity Board (supra), this Court has held that Section 18 of the Apprentices Act, 1961 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 and, therefore, an apprentice is not a workman.
In the case of M/s U.P. Sugar Company Limited, Seorahi (supra), this Court has taken a similar view. In paragraph 6, this Court has held as follows :-
"6. The reference in the definition of workman to apprentices by no stretch of imagination can be said to include the apprentice within the meaning of Apprentices Act, 1961. The appointment of apprentices is governed by the provisions of the said statute under which obligation was created on the employer to impart training to apprentice. Section 18 of the Apprentices Act, 1961 clearly lays down that the apprentices under the said Act is not a workman and none of the law applicable to labour would be applied in case of apprentices. The same has been explained in the following manner:
"18. Apprentices a 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;
(b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice."
This Court in the case of U.P. State Electricity Board and another v. Presiding Officer, Labour Court, IV, U.P., Kanpur and another, (Civil Misc. Writ Petition No.13481 of 1999, decided on 15th July 2003), after considering the various decisions on the subject had summed up the position regarding apprentices as follows :-
"From the various decisions, referred to above, the following propositions of law appear to be well settled :-
(i) If a person has been engaged as an Apprentice under the provisions of the 1961 Act, he would not be treated as a workman in view of the provisions of Section 18 of the 1961 Act and he would only be treated as trainee;
(ii) Such a person would not be treated as a workman under the provisions of Section 2(z) of the U.P.Act as he is only a trainee and has not been employed to do any manual, unskilled, skilled, technical operation, clerical or supervisory for hire or reward;
(iii) If a person is not an Apprentice under the provisions of the 1961 Act, so far the State of U.P. is concerned, in order to be treated as a workman, as defined under Section 2(z) of the U.P.Act., he has to fulfill the requirement of Section 2(a) of the U.P.Act., which defines ''Apprentice', i.e., he is to be employed in an industry for the purpose of training therein in accordance with a scheme prepared in that behalf and approved by the State Government;
(iv) Even if a contract of Apprenticeship entered into between the person and the employer has not been registered, as required under Section 4(4) of the 1961 Act, it would be treated as a binding contract and such a person would fall under the provisions of the 1961 Act."
The aforementioned decision has been followed by this Court in the case of Rama Kant Dwivedi v. Presiding Officer, Industrial Tribunal (I), U.P., Allahabad and another (Civil Misc. Writ Petition No.38453 of 1998, decided on 23rd April 2004).
Applying the principle laid down in the aforesaid decisions to the facts of the present case, I find that the petitioner has not been appointed as an apprentice/trainee under any scheme approved by the State Government. Thus, he cannot be treated as an apprentice falling under the definition of the word ''workman' as given in the U.P.Act and, therefore, the provisions of Section 6-N of the U.P. Act would not be applicable.
It may be mentioned here that there is no material on record to show as to whether these respondents were discharging the work of regular Clerks. In the absence of any material, it is not possible to hold that they were doing the work of a regular Clerk and only the nomenclature of apprentice was given to them.
So far as the question of right of appointment of apprentices on a regular post is concerned, it is well settled by various decisions of the Apex Court that they have no vested right and their appointment have to be considered only in accordance with law.
The decision of the Hon'ble Supreme Court in the case of Trambak Rubber Industries Ltd.(M/s) (supra), relied upon by Sri Jain for pressing the plea of unfair labour practice, is not applicable on the facts of the present case. The Hon'ble Supreme Court in the aforesaid case while holding that the employer had resorted to unfair labour practice has held as follows:-
"No evidence whatsoever was adduced on behalf of the management to show that for more than one and half years those persons remained as ''trainees' in the true sense of the term. It is pertinent to note the statement of the management's witness that in June-July, 1989, the company did not have any permanent workmen and all the persons employed were trainees. It would be impossible to believe that the entire production activity was being carried on with none other than the so-called trainees. If there were trainees, there should have been trainers too. The management evidently came forward with a false plea dubbing the employees/workmen as trainees so as to resort to summary termination and deny the legitimate benefits. On the facts and evidence brought on record, the conclusion was inescapable that the appellant-employer resorted to unfair labour practice. There would have been travesty of justice, if the High Court declined to interfere with the findings arbitrarily and without reasonable basis reached by the Industrial Court."
However, in the present case, I find that the petitioner had on its roll sufficient number of Clerks (75) for doing the work in the Sugar Mill and merely because 25 apprentice Clerk have been engaged, will not make them Clerk. They remained apprentices. Thus, the pleas of unfair labour practices is not established.
In view of the foregoing discussions, the Labour Court had erred in holding that the contesting respondents even though apprentices, were workmen and their termination was illegal.
In the result, all the writ petitions succeed. The impugned award in each of the writ petitions are set aside. However, the parties shall bear their own costs.
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