Gujarat High Court
Shankarbhai Lebabhai Vankar vs Executive Engineer & on 5 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/15497/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15497 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SHANKARBHAI LEBABHAI VANKAR....Petitioner(s)
Versus
EXECUTIVE ENGINEER & 1....Respondent(s)
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Appearance:
MR HARSHAD K PATEL, ADVOCATE for the Petitioner(s) No. 1
MR N.A. ACHARYA, ADVOCATE FOR MS LILU K BHAYA, ADVOCATE for the
Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 05/07/2017
ORAL JUDGMENT
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1. Heard Mr.Patel, learned advocate for the petitioner and Mr.Acharya, learned advocate for Ms.Bhaya, learned advocate for the respondent.
2. In present petition, the petitioner has challenged award dated 5.4.2007 passed by the learned Labour Court in Reference (LCH) No.163 of 2002 whereby the learned Labour Court rejected the reference in light of the finding of fact that the claimant was engaged as Apprentice under provisions of the Apprentices Act, 1961 ('the Act' for short) and that, therefore, the claimant cannot be termed 'workman' and consequently, the reference would not be maintainable and cannot be adjudicated.
3. Feeling aggrieved by the said award, the claimant has taken out present petition.
4. So far as factual background is concerned, it has emerged from the record and from the submissions by learned advocates that the petitioner raised an industrial dispute with the Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Jul 23 13:49:57 IST 2017 C/SCA/15497/2007 JUDGMENT allegation that the respondent Electricity Board illegally terminated his service. Appropriate government referred the dispute for adjudication to the learned Labour Court at Himatnagar. Dispute was registered as Reference (LCH) No.163 of 2002. In his statement of claim, the petitioner claimed and alleged that he was appointed as Helper in 1987 by Gujarat Electricity Board in the panchayat office and that he was paid salary at Rs.450/. The claimant also alleged that he had passed requisite examination for the post of Helper in response to the advertisement issued in November 1986. He also claimed that he worked regularly and he had worked for 240 days in each year. The claimant also alleged that the respondent illegally terminated his service on 10.9.1990 by oral instructions. The claimant (i.e. present petitioner) also alleged that the Board terminated his service on the ground and allegation that it was reported that he was involved in criminal offence for the punishable Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Jul 23 13:49:57 IST 2017 C/SCA/15497/2007 JUDGMENT under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act. He also submitted that the Board instituted the case against him, i.e. Special Case No.6 of 1992 and after trial the trial Court acquitted him. The claimant has also alleged that after acquittal he requested the Board to reinstate him in service, however, the respondent Board did not reinstate him and that, therefore, he instituted Reference (LCH) No.163 of 2002. The petitioner - claimant relied on appointment order dated 27.9.1989 and he alleged that his service was illegally terminated without following any procedure prescribed by law and in violation of principles of natural justice and that, therefore, the Board should be directed to reinstate him with all benefits.
5. The reference case was opposed by the respondent. The Board filed its written statement and denied the allegations by the claimant. The Board claimed that the claimant was not appointed as employee of the Board and the relations Page 4 of 11 HC-NIC Page 4 of 11 Created On Sun Jul 23 13:49:57 IST 2017 C/SCA/15497/2007 JUDGMENT between the claimant and the Board was not of employer and employee and such relationship never existed between the claimant and the Board. The Board specifically contended, in its written statement, that the claimant was engaged as Apprentice in trade of Lineman under order dated 27.9.1989 for apprenticeship and he was engaged as such for period of three years. The Board also claimed that when the claimant was undergoing apprenticeship, he was arrested for accepting illegal gratification of Rs.15/, on 1.8.1990 and thereupon, offence case was registered against the claimant. In that view of the matter, the apprenticeship of the claimant was discontinued with effect from 10.9.1990. With such allegation and details, the respondent Board claimed that the reference should not be entertained and the relief prayed for by the claimant should not be granted.
6. The learned Labour Court received evidence from both sides and upon conclusion of evidence, Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Jul 23 13:49:57 IST 2017 C/SCA/15497/2007 JUDGMENT the learned Labour Court heard rival submissions and upon consideration of material available on record, the learned Labour Court reached to the conclusion that the claimant was engaged as Apprentice under provisions of the Apprentices Act, 1961 and that, therefore, he cannot be termed 'workman' under Section 2(s) of the Industrial Disputes Act, 1947 the reference cannot be entertained. Consequently, the learned Labour Court rejected the reference.
7. Feeling aggrieved by the award, the original claimant has taken out present petition.
8. Mr.Patel, learned advocate for the petitioner reiterated the facts and contentions which were raised before the learned Labour Court. He claimed that the claimant was appointed by the Board as Helper in the office of panchayat and that he was paid salary by the Board and the contention on the ground that he was Apprentice, is incorrect. He submitted that after the learned Labour Court acquitted him upon conclusion of the Page 6 of 11 HC-NIC Page 6 of 11 Created On Sun Jul 23 13:49:57 IST 2017 C/SCA/15497/2007 JUDGMENT trial, there was no justification for the Board to decline claimant's request for reinstatement.
9. Learned advocate for the opponent Board opposed the submissions. Learned advocate for the Board reiterated the factual details mentioned in the written statement. Learned advocate for the respondent Board relied on the order dated 27.9.1988 whereby the petitioner came to be engaged as Apprentice Lineman under provisions of the Act and he submitted that since the claimant was engaged as Apprentice, he cannot be termed 'workman' and the learned Labour Court has not committed any error. He submitted that the award passed by the learned Labour Court is just, legal and proper and does not suffer from any infirmity and therefore, the petition may not be entertained.
10. I have considered rival submissions and I have also considered material available on record.
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C/SCA/15497/2007 JUDGMENT
11. At the outset, it is pertinent to note that copy of the appointment order under which the claimant was engaged by the respondent Board, is available on record at AnnexureB, page 19.
12. Even a glance at the order and on plain reading of the order, it becomes clear that the petitioner was engaged as full time Apprentice in trade of lineman and that he was engaged under provisions of the Apprentices Act.
13. From the said appointment order, it comes out that the claimant, i.e. present petitioner had accepted the order dated 27.9.1989. The said order dated 27.9.1989 specifically provides that the apprentice, i.e. present petitioner would be paid stipend at Rs.290/ per month and that he has been engaged as Apprentice in trade of lineman and that he shall execute the contract as provided under 1961 Act. It also emerges from the said order dated 27.9.2009 that the Apprenticeship Adviser was informed about the said order / engagement.
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C/SCA/15497/2007 JUDGMENT
14. The said appointment order conclusively demonstrates that the petitioner was engaged as Apprentice. In this view of the matter, the limited question which arises before this Court, is as to whether the learned Labour Court has committed any error in holding that the claimant cannot be termed 'workman' and that, therefore, the reference would not be maintainable and rejecting the reference having reached to said conclusion.
15. When the provisions under 1961 Act are taken into account and when above mentioned order dated 27.9.1989, which was duly signed and accepted by the petitioner herein, is taken into account, then it becomes clear that the petitioner was engaged as Apprentice in trade of lineman, in accordance with 1961 Act.
16. In this context, it would be appropriate, at this stage, to take into account provisions under Section 18 of the Act, which reads thus: Page 9 of 11
HC-NIC Page 9 of 11 Created On Sun Jul 23 13:49:57 IST 2017 C/SCA/15497/2007 JUDGMENT "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."
17. The said provision makes it clear that the person who is engaged as an Apprentice in any trade in accordance with 1961 Act, would not be termed as 'workman' under provisions of the Industrial Disputes Act.
18. In this context, it is relevant to note that in the decision in case of U.P. State Electricity Board vs. Shiv Mohan Singh and Another [(2004) 8 SCC 402], Hon'ble Apex Court has held that even if prescribed requirement of registration of the contract is not complied then also, an Apprentice under the Act would not acquire status of workman and his status of Apprentice under the Act would not be changed or transferred into the status of workman. The learned Labour Court reached to the said conclusion in light of the decision in case Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun Jul 23 13:49:57 IST 2017 C/SCA/15497/2007 JUDGMENT of State of U.P. vs. Ram Aasari [2005 (1) LLJ 117].
19. In view of Section 18 of the Act and in light of the above mentioned decision by Hon'ble Apex Court, the reasons and conclusions by the learned Labour Court and the final conclusion cannot be faulted.
20. The petitioner has failed to make out any ground against the award by the learned Labour Court. Learned advocate for the petitioner has failed to point out any material or provision under the Act which would convince this Court which the learned Labour Court has committed any error in passing the impugned award. Therefore, the petition fails and deserves to be rejected. Accordingly, the petition is rejected. Rule is discharged.
Sd/ (K.M.THAKER, J.) Bharat Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Jul 23 13:49:57 IST 2017