Bombay High Court
Amol Dilip Sable And Others vs M/S L G Balakrishnan And Bros Ltd Through ... on 11 October, 2018
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
WP/386/2018
Page 1 of 7
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 386 OF 2018
AMOL DILIP SABLE AND OTHERS
VERSUS
M/S L G BALAKRISHNAN AND BROS LTD
...
Advocate for Petitioners : Shri Shinde Manoj D.
Advocate for Respondent : Shri Golewar V.P.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: October 11, 2018 ...
PER COURT :-
1 While issuing notice on 10.1.2018, this Court had passed the following order:-
"1. The 3 petitioners are aggrieved by the order dated 02/01/2018 delivered by the Industrial Court, Jalna by which application Exhibit U-2 filed u/s 30(2) of the M.R.T.U. and P.U.L.P.Act, 1971 has been rejected. Complaint (ULP) No.112/2017 is pending.
2. I have heard the learned Advocate for the petitioners.
3. The petitioners were appointed as Trainees in the Production Department by order dated 26/12/2015, for the period of two years. Their stipend was settled in the terms and conditions of their appointment order. There was no obligation on the employer to confirm the services of these trainees except after assessing their suitability and their performance. Grievance of the petitioners is WP/386/2018 Page 2 of 7 that Standing Order 4(C) of the Model Standing orders framed under the Industrial Employment (Standing Orders) Act, 1946 will become automatically applicable and they would be entitled for regularisation by an order to be issued by the Manager under Standing Order 4(D).
4. The issue is as to whether trainees are workmen u/s 2(s) of the I.D.Act and whether a trainee can be continued as such for a period of more than 6 months as is prescribed under Standing Order 3(1)(f).
5. All these petitioners have completed their training on 26/12/2017 and complaint (ULP) No.112/2017 was filed on 12/12/2017 apprehending disengagement.
6. Issue notice to the respondents, returnable on 16/02/2018.
7. In the meanwhile, as the respondent has made a statement before the Industrial Tribunal that it has 122 trainees under Training period and 110 employees on probation, the respondent would consider the case of these petitioners at par with those trainees who would be completing their training period, as per the terms and conditions set out in their appointment orders dated 26/12/2015."
2 Learned counsel for the respondent has strenuously contended that these petitioners were appointed as Apprentices under the Apprentices Act, 1961. Their appointment was under Section 2(aa), which defines an 'apprentice' to be a person who undergoes apprentice WP/386/2018 Page 3 of 7 training in pursuance of an apprentice contract. I find that the appointment orders issued by the respondent to these petitioners on 26.12.2015 clearly indicate that they are appointed as trainees and there is no whisper, much less a clause in the appointment order mentioning that these petitioners are appointed under Section 2(aa) of the Apprentices Act.
3 Learned counsel for the respondent then submits that these petitioners have been engaged for apprenticeship training under Section 2(aaa) of the said Act. I, however, do not find any contract of apprenticeship signed between the parties. There is no mention in the appointment order that the petitioners will undergone apprenticeship training. What is actually mentioned in the appointment order is that these petitioners are appointed as trainees. A clause preventing them from joining any competitive company for three years is also imposed indicating that these petitioners were not apprentices since an apprentice is a candidate who is recommended by the Apprenticeship Advisor appointed by the Apprenticeship Council. 4 What is glaring is that the respondent / management has not even whispered in it's written statement that these petitioners are not appointed as trainees under the Model Standing Orders and that they are appointed under the Apprenticeship Act.
WP/386/2018 Page 4 of 7 5 In the absence of pleadings and more so, when the appointment order would speak louder than words, it is obvious that these petitioners were not apprentices under the Apprenticeship Act. The respondent has taken a stand that they are apprentices, only in view of the judgment of the Honourable Apex Court delivered in U.P. State Electricity Board Vs. Shiv Mohan Singh [(2004) 8 SCC 402], wherein, the employee was appointed as an apprentice under the Apprentices Act. In the case in hand, merely because the learned Advocate for the respondent is instructed to canvass that these petitioners are apprentices so as to oust the jurisdiction of the Industrial Court, such submission can only be taken as an unsustainable plea which is motived for ousting the jurisdiction of the Industrial Court. This aspect has been completely lost sight of by the Industrial Court while dealing with the application Exhibit U/2.
6 Neither the original complainant / workers, nor the respondent / management have assisted the Industrial Court, while deciding Exhibit U/2. Had the provisions of the Apprentices Act been cited, the Industrial Court would have realized that the management has never appointed these petitioners under the Apprentices Act. 7 The learned Single Judge of this Court in Raymond Uco Denim WP/386/2018 Page 5 of 7 Pvt. Ltd. Vs. Praful Warade [2010 (6) Mah.L.J. 178], has considered the case of probationers under the Model Standing Order having worked beyond three months. This Court considered the case under Standing Order 3(b) of the Industrial Employment Standing Orders Act and concluded that any employment beyond the prescribed period of 3 months as a probationer, would render the employee deemed permanent under Standing Order 4C.
8 It is also brought to the notice of the Court that out of the 43 such trainees, 37 did not approach the Industrial Court. They have been rewarded by being appointed as probationers in the factory. Only because these 3 petitioners approached the Industrial Court, they were disengaged on the ground that their training period is over. In the absence of a contract for apprenticeship trainee between the parties and without referring such a contract of apprenticeship to the Apprenticeship Advisor, under Section 4(4) and 4(5), there would be no sanctity to such a contract.
9 I find that neither was any apprenticeship contract signed between the parties, nor was it referred to the competent authority for registration. It is, therefore, quite clear that this management has putforth a story under the Apprenticeship Act for ousting the jurisdiction of the Industrial Court, being oblivious of the fact that a mere defense WP/386/2018 Page 6 of 7 taken would not render these petitioners as apprentices. 10 It is settled law that interim relief cannot be of the nature of a final relief. As such, the disengagement of these petitioners will have to be subjected to the result of the pending complaint as there cannot be an order of reinstatement, which would amount to granting of final relief. Nevertheless, the jurisdiction of the Industrial Court would not be ousted merely because the petitioners have been disengaged, since they were in employment with the respondents on the date of their filing of the complaint before the Industrial Court. However, their rigours on account of the unfair act of the employer can be softened by directing the respondent to pay 50% of their monthly wages till the decision in the complaint or, engage these petitioners on the same terms on which they were earlier working and pay them the same salary, subject to the result in the pending complaint.
11 As such, this petition is partly allowed. Considering the subsequent events, the impugned order dated 2.1.2018 is quashed and set aside and application Exhibit U/2 is partly allowed on the following terms:-
(A) The respondent / management shall pay 50% of the monthly wages that were being paid to the petitioners from the date of their disengagement by depositing the said WP/386/2018 Page 7 of 7 amount before the Industrial Court on/or before the 7 th day of each month.
(B) These petitioners would be at liberty to withdraw the said amounts without conditions.
(C) As an alternative to the above, the respondent is at liberty to reengage the petitioners on the same terms and same monthly wages, without prejudice to the rights of the litigating sides and extract work from them.
(D) Since it is obvious in view of the observations of this Court that these petitioners were never engaged as apprentices, the Industrial Court would proceed to decide Complaint (ULP) No.112 of 2017 as expeditiously as possible and in any case on/or before 30.6.2019.
(E) In the event, the respondents opt for option (C), the 50% back wages for the period of disengagement would be deposited in the Industrial Court and regular 50% payment would continue on month to month basis.
(F) The Industrial Court may permit the petitioners / workers to withdraw 50% of the said backwages amount and invest the remaining amount in a fixed deposit with a nationalized bank upto 30.6.2019.
( RAVINDRA V. GHUGE, J. ) ...
akl/d Digitally signed by Ajay Ajay Kishanrao Kishanrao Losarwar Date: Losarwar 2018.10.12 10:37:44 +0530