Madras High Court
Management vs The Presiding Officer on 6 September, 2013
Author: M.Venugopal
Bench: M.Venugopal
THE HIGH COURT OF JUDICATURE AT MADRAS Dated:06.09.2013 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.8405 of 2005 and W.P.M.P.No.9075 of 2005 and W.P.No.20416 of 2005 Management, Exide Industries Limited, Chichurukanapalli Village, Hosur 635 103, Dharmapuri District Rep. By its Authorised Signatory, Mr.Thyagarajan ... Petitioner in WP.8405/2005 R.Thiruvengadam ... Petitioner in WP.20416/2005 Vs. 1.The Presiding Officer, Additional Labour Court, Salem. ... 1st Respondent in both WPs. 2.R.Thiruvengadam ... 2nd Respondent in W.P.8405/2005 2.Management, Exide Industries Limited, Chichurukanapalli Village, Hosur 635 103, Dharmapuri District Rep. By its Authorised Signatory, Mr.Thyagarajan ... 2nd Respondent in WP.20416/2005 PRAYER in WP.No.8405/2005: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari calling for the records pertaining to the award of the 1st Respondent dated 9th September 2004 rendered in I.D.No.495 of 2000 quash the same. For Petitioner : Mr.P.K.Rajagopal For M/s.Fox Mandal & Association For 1st Respondent :Court For 2nd Respondent : Mr.V.Prakash Senior Counsel For M/s.P.Chandrasekaran PRAYER in WP.20416/2005: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus, calling for the record from the 1st Respondent, the Presiding Officer, Labour Court, Salem in respect of the I.D.No.495 of 2000 dated 09.09.2004 and quash the portion of the award denying backwages without any reason and consequently direct the 2nd Respondent to pay the backwages from the date of termination till reinstatement award costs. For Petitioner : Mr.V.Prakash Senior Counsel For M/s.P.Chandrasekaran For 1st Respondent : Court For 2nd Respondent : Mr.P.K.Rajagopal For M/s.Fox Mandal & Association COMMON ORDER
The Petitioner/Management has focussed W.P.No.8405 of 2005 praying for issuance of Writ of Certiorari in calling for the records relating to the Award dated 09.09.2004 in I.D.No.495 of 2000 passed by the 1st Respondent/Additional Labour Court, Salem and to quash the same.
The Writ Petitioner/Petitioner has filed W.P.No.20416 of 2005 praying for issuance of Writ of Certiorarified Mandamus in calling for the records from the 1st Respondent/Additional Labour Court, Salem in I.D.No.495 of 2000 dated 09.09.2004 on the file of the 1st Respondent and to quash that portion of the Award denying backwages without any reason and resultantly, to direct the 2nd Respondent to pay the backwages from the date of termination till reinstatement and to award costs.
2.The 1st Respondent/Presiding Officer, Additional Labour Court, Salem, while passing the impugned Award dated 09.09.2004 in I.D.No.495 of 2000 (filed by the Petitioner), has, among other things, observed in paragraph 11 to the effect that '... It is true that the petitioner had been appointed as a trainee for one year; Thereafter, no formal order for extension of training was issued to the petitioner; The petitioner was allowed to work even after one year training is over; The appraisal report (xerox) of the petitioner has been produced; Ex.R.7 appraisal form does not contain the signature of the personal department; The signature of the department was found in the report of R.7. Ex.R.6 contains the signature of both departmental seal and personal department; In the column provided for putting signature of the personal department, the department personal has not put his signature in Ex.R.7. Hence, the appraisal report Ex.R.7 cannot be relied upon' and resultantly, held that the termination of service of the petitioner was not made in accordance with law and passed an Award holding that the non-employment of the petitioner was not justified and directed the Writ Petitioner (Management) to reinstate the 2nd Respondent (Petitioner in W.P.No.20416/2005) into service within three months after the receipt of the Award without backwages with continuity of service from 01.11.1999 and without other benefits.
3.The Summary of Facts:
(i)The Petitioner/Company registered under the Indian Companies Act, 1956, is engaged in the business of manufacture and sale of automative and industrial batteries and other ancillary products. Its manufacturing process being highly sophisticated, the success of the candidates undergoing training would greatly depend upon their degree of skill and adaptability. Unless, a candidate after such training succeeds into the evaluation test, it is neither desirable nor is the intention of the Company to regularise such candidate and employ in the production units.
(ii)The Petitioner/Company, during the year 1997, recruited six candidates for undergoing training on the explicit condition that on successful completion of the said training period and on succeeding in the evaluation test they would be appointed as regular employees of the Company. The 2nd Respondent (Petitioner in W.P.No.20416/2005) was given an offer to join the Petitioner/Company as 'Production Trainee' initially for a period of one year. As per the terms and conditions of the said appointment as a Trainee, he was offered a gross payment of Rs.2,300/- per month, which he was receiving from the date of his joining. In the said letter, it is also stated that during the period of training the service can be terminated at any time by giving one month notice or in lieu of a month's consolidated stipend. Added further, it was mentioned that the Management at its sole discretion may extend the training period, if found necessary. It was an explicit term that the said offer would not confer on him any right to any employment in the organisation. After satisfactory completion of the training period, however, he may be offered employment in the organisation depending on the availability of suitable vacancy, his performance, attendance, application to work, maintenance of discipline during the period of training. As such, even after successful completion of the training, the trainee would not have any right to any employment in the organisation and therefore, the employment in the organisation would depend on suitable vacancy and other facts.
(iii)The 2nd Respondent although he was undergoing training at Hosur Unit of the Petitioner/Company along with other five candidates who joined more or less at the same time, he was found unable to keep pace with the training programme. Further, he had shown lack of interest and dedication to his work. After completion of such training for an initial period of one year, his performance was appraised by the concerned authority of the Petitioner/Company and on such appraisal, he was found not suitable for regular employment. In the appraisal form, the concerned authority had recommended for his further training. The appraisal form was duly signed by the officer who had evaluated the performance of the 2nd Respondent and also the Head Office in which he was undergoing training. In fact, the comment on such appraisal form by the officer was to the extent that the 2nd Respondent could be discontinued. However, on considering the fact that he had already underwent training for one year, it was recommended by the Head of the Department for an extended period of training. The other five candidates who joined the Petitioner/ Company as Trainees along with the 2nd Respondent had successfully completed their training and on appraisal being found suitable for regular employment, they were taken on the rolls of the Company as permanent employees.
(iv)The 2nd Respondent was receiving the monthly stipend of Rs.2,300/- for the entire second year period of training and knowing fully well that he failed in the appraisal tests, he was working in the Petitioner/Company as Trainee. On completion of the second year training period, he was again appraised by the concerned authority of the Company, when it was found that the 2nd Respondent, inspite of such training for two consecutive years could not succeed in the appraisal test. Further, he was graded very poor by the appraising authority. In the said appraisal form, duly signed by the Officer, who evaluated the performance of the 2nd Respondent and also the Head of the concerned Department had categorically recommended the stoppage of his training immediately and he should not be confirmed.
(v)The Petitioner/Company, through letter dated 30.10.1999 informed the 2nd Respondent that a training period was closed in accordance with the Clause (6) of the training letter dated 22.01.1998 and as such, he ceased to be a trainee under the Petitioner/Company with effect from the closer of the working hours on 30.10.1999. Also that, a cheque for Rs.4,600/- was sent to him, but he refused to accept the same.
The Pleas of the Petitioner/Management in W.P.No.8405 of 2005:
4.The Learned Counsel for the Petitioner/Management submits that the 1st Respondent/Additional Labour Court, Salem had passed an Award beyond its jurisdiction and the same being an illegal and perverse one.
5.The Learned Counsel for the Petitioner/Management urges before this Court that the 1st Respondent failed to consider as to whether the I.D.No.495 of 2000 filed by the 2nd Respondent was not maintainable and whether he could be considered as a workman under Section 2(s) of the Industrial Disputes Act, 1947.
6.According to the Learned Counsel for the Petitioner/ Management, the 1st Respondent came to an erroneous conclusion that the formal letter for extension of training, the 2nd Respondent would automatically be construed as permanent workman of the Management, inspite of the fact he had admitted in his chief examination before the 1st Respondent/Additional Labour Court that he was orally intimated by the Management about his extension of training period for the second year.
7.The principle contention advanced on behalf of the Petitioner/ Management is that the 1st Respondent/Additional Labour Court, Salem failed to appreciate that once a person is appointed as Trainee, he would continue to be a Trainee unless a formal order of appointment was followed by it.
8.Yet another stand of the Petitioner/Management is that the 1st Respondent/Additional Labour Court, Salem failed to take into account that all other trainees appointed along with the 2nd Respondent/ Petitioner were confirmed as permanent employees on the basis of their appraisal by the Company and all the confirmed employees were given appointment letters after such training confirming their employment. Further, in the instant case, the 2nd Respondent was not given any such letter of appointment at any point of time.
9. Therefore, the 1st Respondent went wrong in holding that the 2nd Respondent joined the Petitioner Company as Trainee and the terms and conditions of his appointment were governed by the conditions mentioned in the letter dated 22.01.1998 and further had wrongly concluded that since the appraisal form for the year 1998-1999 had not contained the signature of the Personnel Department and therefore it could not be relied upon.
10.The grievance of the Petitioner/Management is that even after the extended period of training, the 2nd Respondent's performance was not satisfactory and therefore, as per terms and conditions of the appointment order, the training could be terminated and in this regard, the absence of signature in the appraisal form could not have no relevance, as observed incorrectly by the 1st Respondent in the Award passed in I.D.No.495 of 2000 on 09.09.2004.
11.The Learned Counsel for the Petitioner/Management submits that since the Officer who evaluated the 2nd Respondent had recommended "stop training" and also that the Departmental Head had endorsed the said recommendations, the Personnel Department had no reason to recommend any further and therefore, there was no question of signature being affixed by the Personnel Department.
12.Lastly, it is the contention of the Learned Counsel for the Petitioner that the 2nd Respondent could not come within the ambit of 'Workman' as defined under Section 2(s) of the Industrial Disputes Act, 1947.
The Stand of the Writ Petitioner in W.P.No.20416 of 2005:
13.The Learned Senior Counsel for the Petitioner (2nd Respondent in W.P.No.8405/2005) contends that the 1st Respondent committed an error in holding that the Writ Petitioner was not entitled to backwages because if termination was found to be an illegal one, in law and on facts, the awarding of backwages must follow suit.
14.The stand of the Petitioner (2nd Respondent in WP.No.8405 of 2005) is that the 1st Respondent should have held that he was entitled to full backwages because there was no legal material available on record to show that he was gainfully employed during his forced non-employment.
15.The Learned Counsel for the Petitioner/Management submits that the 2nd Respondent was engaged as 'Trainee' by the Petitioner/ Management and that he joined in that capacity in the Company on 29.09.1997, on a monthly stipend of Rs.2,300/- and that he was issued with the Order of Termination-Ex.P.3 dated 30.10.1999 because of the fact that his performance was graded very poor by the appraising authority and also that the Officer who evaluated the performance of the 2nd Respondent and also the Head of the Department of the Company had specifically recommended stoppage of the training to him immediately and also that he should not be confirmed.
16.The Learned Counsel for the Petitioner/Management contends that the Petitioner/Management offered the post of training to the 2nd Respondent and he accepted the said post only as Trainee and when his status was that of a Trainee, he could not plead that he comes within the ambit of 'Workman' as per definition 2(s) of the Industrial Disputes Act, 1947. In short, the categorical stand of the Petitioner/ Management is that a Trainee could not claim that he was a 'Workman', during the period of his training.
17.The Learned Counsel for the Petitioner/Management relies on the decision of the Hon'ble Supreme Court reported in MANU/SC/ 0858/2004 between U.P.State Electricity Board V. Shri Shiv Mohan Singh and another, [AIR 2004 SC 5009] wherein at paragraph Nos.56 & 58, it is observed and laid down as follows:
"56.It is 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 labout law shall not apply or in relation to such apprentices". Therefore, reading definition of apprentice in Section 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 workman 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.
58.Our attention was invited to a decision of Kerala High Court in the case of Bhaskaran V. MANU/KE/0150/1986: Kerala State Electricity Board reported in (1986) II Llj 346 Ker 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 Section 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."
18.He cites the decision of the Hon'ble Supreme Court in National Small Industries Corporation Limited V. V.Lakshminarayanan, (2007) 1 Supreme Court Cases 214, at page 219 & 220, wherein, in paragraph Nos.16 to 19, it is observed as follows:
"16.The entire dispute centers round the question as to whether the respondent was, in fact, a workman within the meaning of Section 2 (s) of the 1947 Act or an apprentice trainee within the meaning of Section 18 of the 1961 Act.
17.Section 2 (s) of the 1947 Act defines "workman" in the following terms:-
"2(s). 'workman' means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express 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 Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); 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 one thousand six 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."
18.From the above, it will be seen that a "workman" includes an "apprentice". However, Section 18 of the 1961 Act defines that apprentices are trainees and not workers in the following terms:-
"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."
19.From the above, it will be seen that on the one hand while an apprentice is also treated to be a workman for the purposes of the 1947 Act, by virtue of Section 18 of the 1961 Act, it has been categorically provided that apprentices are not workers and the provisions of any law with respect to labour shall not apply to or in relation to such apprentice."
19.That apart, the Learned Counsel for the Petitioner/ Management invites the attention of this Court to the ingredients of Section 18 of the Apprentices Act, 1961 which runs thus:
"18.Apprehentices 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."
20.The Learned Counsel for the Petitioner refers to BLACK'S LAW DICTIONARY, Sixth Edition by Hentry Campbell Black, M.A. wherein the term 'Apprenticeship' has been defined as under:
"Apprenticeship. An apprentice is a person who agrees to work for an employer for a specified time for the purpose of learning the craft, trade or profession in which the employer agrees to instruct him. In a more popular sense the term is used to convey the idea of a learner in any field of employment or business. The requirements of an apprenticeship contract both as to contents and manner of execution are prescribed by statute in a number of states. See also Articles of apprenticeship.
The term during which an apprentice is to serve; the status of an apprentice; the relation subsisting between an apprentice and his master."
21. The Learned Counsel for the Petitioner/ Management seeks in aid of the decision of the Hon'ble Supreme Court in Mukesh K.Tripathi V. Senior Divisional Manager, L.I.C. and others, 2004-III-L.L.J. 740 at page 741 wherein it is observed and held as follows:
"Appellant impugned a judgment of the High Court which set aside an award of the Industrial Tribunal in his favour. By the impugned judgment, the appellant was held to be not a 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and so not entitled to relief against the termination of his service as Apprentice Development Officer by the respondent-Life Insurance Corporation. The Supreme Court dismissed the appeals, observing the impugned judgment called for no interference. Its reasons were two fold. The first was that the offer of appointment of the appellant proved that he was appointed as an apprentice and not to do any skilled, unskilled, manual, technical or operational job. The onus was on the appellant to prove that he was a 'workman' within Section 2(s) of the I.D. Act, 1947. He failed to prove the same.
The Second reason was that Section 18 of the Apprentices Act, 1961 carried out an exception to the applicability of labour laws in the event the concerned person was an apprentice as distinguished from expressions 'workman' and 'employee' used in different statutes."
22.The Learned Counsel for the Petitioner/Management submits that for extension of training period in respect of the 2nd Respondent, there was no formal order of extension of training period and orally it was extended. Further, the Learned Counsel for the Petitioner/ Management relies on Ex.R.9, the Petitioner/Management's Standing Orders wherein the term 'Apprentice' under S.O. 3(e) runs as follows:
"3.e) 'APPRENTICE': is one who is engaged essentially in learning any skilled work provided that the period of such learning shall not exceed one year for those with prescribed educational qualification and three years for others."
23.The prime contention advanced on behalf of the Petitioner/ Management is that the 2nd Respondent with open eyes joined as Trainee in the Petitioner/Company and therefore, he is estopped in taking a contra stand that he was a Workman.
24.The Learned Counsel for the Petitioner/Management strenuously contends that as per Standing Order 3(e) in respect of an 'Apprentice' the period of learning shall not exceed one year for those with prescribed educational qualification and three years for others. Also, it is pleaded on behalf of the Petitioner/Management that the 2nd Respondent was not covered under any order and extending the period of training through a communication can only be a formal communication and in the absence of any communication being issued to the 2nd Respondent, the same was of no consequence.
25.In response, the Learned Senior Counsel for the 2nd Respondent (Petitioner in W.P.No.20416/2005) contends that the 1st Respondent/Additional Labour Court, Salem, while passing the impugned Award in I.D.No.495 of 2000 dated 09.09.2004 has clearly observed that the 2nd Respondent was appointed as Trainee for one year and no formal order for extension of training was issued to him and further, he was allowed to work for one year training period was over. Further, the 1st Respondent went on to add that Ex.R.7-Appraisal Form does not contain the signature of the Personnel Department etc. and as such, a categorical finding was rendered that Ex.R.7 could not be relied upon and these findings were all question of facts and these could not be interfered with by this Court sitting in Writ Jurisdiction.
26.The other contention advanced on behalf of the 2nd Respondent (Petitioner in W.P.No.20416/2005) is that as per Ex.R.9-Standing Order, S.O. 21(2) 'Any notice or communication intended for any workman personally may be delivered to him personally in the premises of the industrial establishment or sent to him by post to the address of the workman as specified in the service records or as otherwise furnished by him' and in the instant case, no such communication extending the training period of the 2nd Respondent was issued or sent to him by the Management and as such, the Petitioner/Management had not followed the ingredients of S.O.21(2) with deals with 'Service of Notice', which is an adverse circumstance against the Petitioner/Management.
27.The Learned Senior Counsel for the 2nd Respondent contends that the Offer of Employment dated 22.01.1998 describes the 2nd Respondent as 'Production Trainee' and further, Clause (1) of Ex.P.1- Offer of Employment speaks of period of training for one year commencing from the date of 2nd Respondent joining as Production Trainee.
28.Moreover, the Learned Senior Counsel for the 2nd Respondent invites the attention of this Court to the definition of Section 2(aa) of the Apprentices Act, 1961 which defines "apprentice" meaning, 'a person who is undergoing apprenticeship training in pursuance of contract of apprenticeship' and further, the apprenticeship must be in a designated trade as per Section 2(e) of the Apprentices Act, 1961. Also, Section 2(q) of the Apprentices Act, 1961 deals with "trade apprentice" meaning 'An apprentice who undergoes apprenticeship training in any such trade or occupation as may be prescribed'.
29.In effect, the Learned Senior Counsel for the 2nd Respondent submits that the Contract of Apprenticeship should be shown in a designated trade and also that Section 18 of the Apprentices Act, 1961 categorically says that Apprentices are Trainees and not Workers.
30.Apart from the above, the Learned Senior Counsel for the 2nd Respondent refers to Rule 3 of the Apprenticeship Rules which speaks of "Standard of Education" and also refers to Schedule I [See rule 3(1) and rule 7(1)] which deals with Group No.1 Fitter and the period of training is 3 years etc.
31.The Learned Senior Counsel for the 2nd Respondent contends that the 'Production Trainee' is not a designated trade under the Apprentices Act, 1961 and if the 2nd Respondent is not trained in any designated post and therefore, Section 18 of the Apprenticeship Act, 1961 has no application.
32.The Learned Senior Counsel for the 2nd Respondent submits that there was no formal communication extending the period of training of the 2nd Respondent, even though he was working beyond the period of completion of training.
33.According to the Learned Senior Counsel for the 2nd Respondent, Section 18(a) of the Apprentices Act, 1961 speaks of 'every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker' and inasmuch as the 2nd Respondent was a Production Trainee as per Ex.P.1 - Offer/Letter of Appointment, which is not a designated trade, then, Section 18(a) of the Apprentices Act , 1961 will not apply to him and in such an event, he is only a Workman.
34.Continuing further, the Learned Senior Counsel for the 2nd Respondent submits that the definition of Section 2(s) 'Workman' includes an apprentice or trainee under the Industrial Disputes Act, and in fact, a harmonious interpretation is to be given.
35.Besides these, the Learned Senior Counsel for the 2nd Respondent contends that the 2nd Respondent is an unconfirmed workman and since in Ex.R.7, no signature of the 2nd Respondent was taken, the same was rejected by the trial Court as it could not be relied upon and therefore, the reinstatement of the 2nd Respondent ought to be as a 'Workman' under Section 2(s) of the Industrial Disputes Act.
36.By means of reply, the Learned Counsel for the Petitioner/ Management submits that Ex.P.1-Offer of Employment dated 22.01.1998 is a contract and further, it is a contract of training and in the Petition in I.D./Claim Statement, the 2nd Respondent had not stated that he was appointed as Workman and also that, no permanent appointment order was given to the 2nd Respondent and as per the Apprenticeship Rules, 1991, Schedule I [Rule 3(1) and Rule 7(1)] Serial No.1 deals with the designated trade "Fitter" and the period of training is mentioned as "3 years" and the rebate allowed to apprenticeship training is also stated as "2 years" and as such, statutorily the 2nd Respondent could be retained for three years.
37.The Learned Counsel for the Petitioner/Management contends that there is no iota of evidence before the 1st Respondent/Additional Labour Court, Salem that the 2nd Respondent discharging his duties as 'Workman' and based on assumption a claim is made on behalf of the 2nd Respondent that he was a workman. Also that, he was not paid salary on time scale of pay and he was given only the stipend.
38.It is useful for this Court to refer to the evidences of P.W.1 (2nd Respondent), R.W.1 and R.W.2, before the 1st Respondent for better appreciation of the facts in issue.
39.P.W.1 (2nd Respondent), in his evidence, had deposed that he was given the appointment order - Ex.P.1 dated 22.01.1998 wherein he was described as 'Trainee' but he worked as permanent workman in production job and the training period was one year and after completion of one year, he was orally informed that the training was extended for the second year but no order was given in this regard. But, he was removed/discharged from job on 30.10.1999. Further, he had deposed that in a continuous period of two years, he worked more than 480 days and when he demanded permanent status, he was removed unlawfully from his job.
40.P.W.1 (in his cross examination) had deposed that he had not objected to the conditions mentioned in his original appointment order and Ex.R.2 is the Training Order dated 22.01.1998 and he continued to work as 'Trainee' and prior to the date of his joining, he had no prior experience in battery work/job.
41.R.W.1 had deposed that the training appointment order was given to the 2nd Respondent viz., Ex.R.2 dated 22.01.1998 and the first year appraisal report pertaining to the 2nd Respondent was Ex.R.6 and Ex.R.7 is the second year's report and in Ex.R.6, since the 2nd Respondent's performance was not satisfactory, it was mentioned that his probation could be extended and as such, Ex.R.7 was issued and since the second year's training period also was not satisfactory, he was discharged from service as per order dated 30.10.1999. Also that, a retrenchment compensation of Rs.4,600/- being the one month's stipend Notice Pay was given to the 2nd Respondent.
42.Continuing further, R.W.1 also went on to add in his evidence that when Ex.R.3 - Order of Termination was admitted to be given to the 2nd Respondent. He refused to receive the same and therefore, the said order was sent to his address, by registered post Ex.R.4 and he returned the cheque to the Company with a letter viz., Ex.R.5 and originally, the 2nd Respondent was appointed as Trainee on 29.09.1997.
43.R.W.2 (Associate Manager in Production Section) had stated in his evidence that during the year 1999, he was the Senior Officer Production and in charge of the Production of the Factory in Assembly and Training of the Apprentice and that the 2nd Respondent was a Trainee who joined on 29.09.1997 and at that time, along with the 2nd Respondent as Trainee another five persons were taken as Trainees and after the training time was over, he was disengaged. Also, he had deposed that the 2nd Respondent was lacking in safety habits and during training on battery burning while he was proceeding to bathroom he had to switched off to the burner, but he never switched off the burner while leaving the place. Further, after the job was over he had to clean the work area, but he had not cleaned up the area.
44.It is the further evidence of R.W.2 that during the Training while burning 3 and 4 plates should not come apart after welding and if the plates came off separately, the battery would not give the performance and compared to other trainee, his performance was not upto the mark. Moreover, during the first year training, the 2nd Respondent scored 15/35. Whereas other traninees scored 24/35. As such, the training period was extended to second year and during the second year, his score was 10/35. This was also reflected and the report was filed and marked as Ex.R.7. Since the Petitioner's proposal was not upto the mark, he was disengaged.
45.It is to be pointed out that in the decision Vijayalakshmi Insecticides and Pesticides Limited, Hyderabad V. Chairman, Industrial Tribunal-cum-Labour Court, Visakhapatnam and others, 2004-(2)-L.L.J.-62, it is observed and held that 'A Trainee will not be a workman under the Industrial Disputes Act and as such, he cannot challenge his termination made by the employer for his unsatisfactory work even during the extended period of training'.
46.At this stage, this Court recalls the recollects the decision Management of Otis Elevator Company (India), Ltd., V. Presiding Officer, Industrial Tribunal-III, and another, 2003- (3)-L.L.N.-256 wherein it is held as follows:
"In the letter of engagement of respondent No.2 itself which is the contract it was specifically stated that his performance would be extended for another two years and thereafter on successful completion of the training and in the event of a vacancy being available he would be considered for a suitable employment. Necessarily, therefore, his performance was assessed by the petitioner during the aforesaid training period of initial twelve months but his performance was not found satisfactory. The same was also brought to his notice and he was asked to improve his performance so as to enable him to avail of the further extension of the training for two years. Thereafter his performance was again assessed and an interview was held and even in the same his performance was not good and therefore the petitioner decided to discontinue the contract of control training in terms of Cl.2 of the contract. The aforesaid order of disengagement cannot be termed as stigmatic as held by the Industrial Tribunal."
47.Also, this Court aptly points out the decision in Chauhan Mehbub Osman V. State of Gujarat, 2008-III-L.L.J.-484 (Gujarat) wherein it is held that 'An apprentice will not be a workman under the Industrial Disputes Act. Hence, there is no reinstatement'.
48.Apart from the above, this Court points out the decision in Kartik Ramachandran R. V. Presiding Officer, Labour Court and another, 2006 2 LLJ 160 at page 163 & 164 wherein in paragraphs 16, 17 and 20 to 22, it is observed and laid down as follows:
"16. Perusal of the record shows that the petitioner did not at all lead any evidence in order to support of the contention that he was covered under the definition of Section 2(s) of the Industrial Disputes Act, 1947. I also notice that a specific objection had been taken by the respondent in its written statement in this regard to the following effect:
2. That the appropriate Government has before making the reference in question, failed to appreciate that there did not exist or apprehended to exist any industrial dispute within the purview of the Industrial Disputes Act, 1948 as relationship of an employee/workman and the employer/ management is a sine qua non for the existence of such a dispute. As Shri Kartik Ramachandran was only a trainee and not an employee/workman qua the respondent, he could not raise an "industrial dispute" with the respondent. The appropriate Government ought to have appreciated this contention of the respondent. But the said Government seems to have not applied its mind to that and made reference to this Hon'ble Court which is neither legal nor proper. The same is liable to be rejected and answered accordingly.
17. The petitioner has proceeded in the matter on the presumption that he is not required to establish the maintainability of his claim or the nature of his employment. I find that petitioner has not led any evidence on the aspect of the nature of his duties in affidavit, dated September 6, 1995 filed before the Labour Court. On the contrary in the affidavit filed, the petitioner has accepted that he completed the training period of six months on October 19, 1990.
20. There can be no dispute with the principles of law laid down by the Apex Court in S.KMaini v. Carona case (supra). It is well settled that the designation of an employee is not of importance and it is the real nature of duties being performed by the employee which would decide as to whether an employee is a 'workman' under Section 2(s) of the Industrial Disputes Act. The determinative factor is the main duties performed by the employee and not the work done incidentally. The nature of duties performed by the workman is a question of fact. An employee is required to set up such plea and to lead evidence in support thereof. Only then can the Labour Court go into the facts and circumstances of the case and based material on record, decide as to the real nature of duties and functions being performed by the employee in all cases.
21. Such a question would arise if a workman was required to do more than one kind of work. However, no such issue has been urged on behalf of the petitioner before the Labour Court. Before this Court an assertion has been made that in view of the objectives of the training scheme, it is to be held that the petitioner was performing clerical duties and undertaking typing work and was, therefore, covered under the definition of 'workman'. As already noticed hereinabove, there is not an iota of pleading or evidence led by the petitioner in this respect. It is also not open to the petitioner to lay a challenge to the award based on the plea that was not raised before the Labour Court.
22. For the same reason, I find that there is no challenge to the appointment letter dated April 20, 1990 before the industrial adjudicator. The petitioner has accepted that he was appointed to undergo the training programme. This fact is mentioned in his affidavit by way of evidence. Therefore, the admitted position is that the appointment of the petitioner on April 20, 1990 was only in order to enable him to undergo training and that the respondent did not create any contract of employment between the parties."
49.Furthermore, in the decision of this Court in Management Pepsi Co. India Holdings, Mamandur V. Presiding Officer, First Additional Labour Court, Madras and K.Balu, 2010-LLR-127 wherein it is observed that 'Setting Aside termination of a probationer is erroneous when his performance was unsatisfactory and as such, the termination was restored.
50.It cannot be gainsaid that a probationer has no lien on the job. Furthermore, a probationer continues to be so even after the specified period of six months as per decision I.B.P. Company Limited V. Bharti B.S., 2000-I-L.L.J.682.
51.In this connection, it is not out of place for this Court to point out the Division Bench decision in Mohd. Zahoor and another V. Committee of Management, Madarsa Hanfia Ahle Sunnat Baharul-Uloom, Mau and others, 1997 (Vol.77) Indian Factories & Labour Reporter at page 214 wherein it is observed that 'The object of probation is to test the suitability of the person appointed. If the appointing authority finds that the candidate is not suitable, the employer certainly has power to terminate the services of the employee'.
Also, it is further observed that 'There is nothing like automatic confirmation/absorption of a candidate in service on expiry of the period of probation unless specifically provided so in the Rules applicable to the service'. Moreover, in the aforesaid decision, it is also held as follows:
"The power of extension of the period of probation has been exercised fairly and reasonably. On each occasion it has been extended on the application given by the appellants that they will show improvement. Thus, they were a consenting party for extension of the period of probation and they cannot question the validity of the same once they have availed benefit of the same."
That apart, in the aforesaid decision, at page 218 in paragraph 10, it is observed as follows:
"We have considered this aspect of the matter also. However, as we have already found above that the termination has taken place before expiry of the period of probation, the orders passed against appellants do not suffer from any illegality as under Rule 26 as well as in the terms and conditions provided in the order of appointment, the management had right to terminate the appellants from service during probation if it was not satisfied with their performance. We have examined the order of termination filed as Annexure '7' to the writ petition and in our opinion the facts stated therein are only motive for passing the order and they are not basis for the order. The appellants were being reminded of their inefficiency and bad performance from the very beginning. However, they persuaded the management to continue with them on assurance that they will show improvement. However, the appellants failed to carry out their assurance. Thus, the basis for passing the orders of termination against appellants was dissatisfaction regarding their performance. Few instances mentioned in the order are only motives. Submission of learned counsel for appellants hence cannot be accepted."
52.At this juncture, this Court very relevantly points out the Division Bench decision in National Small Industries Corporation Limited and Two others V. M.Narayanan, 2006-I-L.L.J.-188 wherein it is observed as follows:
"A Deputy Manager of the appellant-Corporation was appointed on probation for two years. His probation was twice extended. His service was terminated for unsatisfactory performance. Hence he filed a writ petition challenging the termination. It was allowed. Hence the present appeals. The High Court allowed the appeal of the Corporation and dismissed that of the Deputy Manager who had filed it demanding full back wages (allowed by the order under only to the extent of one eighth thereof)."
Further, in the aforesaid decision, at page 188, it is observed that 'The period of respondent's probation was extended twice. Inspite of such extension there was no improvement in his performance. Services of a probationer could be terminated during or at the end of the probation period on account of his general unsuitability for the post' and held that 'The termination of probationer's service after extension of probation twice was not open to challenge'.
53.Also, this Court points out the decision of the Hon'ble Supreme Court in National Small Industries Limited V. V.Lakshminarayanan, 2007-I-L.L.J.-571 at page 572 wherein it is observed and held as follows:
'The respondent was working as an apprentice on a consolidated salary. There was no material on record to support the case made out by the Respondent.
There was nothing to indicate that the respondent's services had ever been regularized or that he was brought on the rolls of the permanent establishment.
The Supreme Court added even if respondent was a workman on account of his contractual nature, his case could come within the exception of clause (bb) of Section 2(oo) of the 1947 Act. In such a case also, Section 25-F of the said Act would have no application to the respondent's case."
54.Continuing further, in the decision K.Dasarath V. Labour Court-I, Andhra Pradesh, Hyderabad and another, 2002 (4) L.L.N. 808, at page 809, it is held as follows:
"The consistent view of the Apex Court always has been that the probationer cannot claim the right of confirmation as a matter of right and it is the overall assessment of the competent authority to judge the same taking into consideration several facts and circumstances. The mere fact that Exhibit M8 was not signed by the workman by itself cannot assist the workman in any way to get the relief especially in the light of the clear findings recorded by the Labour Court while making the impugned award. In the light of the established facts the question whether S.2A of the I.D. Act can be invoked or not in the case need not be elaborately dealt with. In the light of the conditions which had been specified even in the letter of appointment and inasmuch as the probation was not extended subsequently, it cannot be said that there is any deemed confirmation in this regard. This view is in consonance with the Standing Orders of the management and also the consistent view expressed by the Apex Court in several decisions."
55.As far as the present case is concerned, there is nothing on record to show that the 2nd Respondent's services were ever regularised or that he was brought on the rolls of the permanent establishment. As a matter of fact, the Offer of Appointment letter dated 22.01.1998 in respect of the 2nd Respondent shows that he was offered with the employment in Petitioner/Management, Hosur works as 'Production Trainee' with necessary terms and conditions stipulated therein even in Ex.P.2-Pay Slip/Time card that September 1999 in respect of the 2nd Respondent, it was mentioned as 'basic Rs.2,300/-'. P.W.1 (2nd Respondent/Petitioner in W.P.No.20416/2005), in his evidence, had deposed that in his appointment order dated 22.01.1998 he was described as 'Trainee' and also stated that in the appointment order for the conditions laid down therein he had not raised objections and thereafter, he continued to work as 'Trainee'.
56.At the risk of repetition, it is to be pointed out that R.W.1 had deposed that Ex.R.2 is the Training Appointment Order in respect of the 2nd Respondent dated 22.01.1998 for a period of one year and the first year performance report and the first year performance appraisal report in respect of him was Ex.R.6 and Ex.R.7 is the report in respect of the second year and since his performance was not satisfactory it was recommended for a period of six months extension as per Ex.R.6 and accordingly, Ex.R.7 was issued and since his second year performance was not satisfactory, he was discharged by means of an Order of Termination dated 30.10.1999-Ex.P.3. Also that, R.W.2 in his evidence has deposed that the 2nd Respondent was a Trainee who joined in the Petitioner/Company on 29.09.1997 and during the first year training period, the 2nd Respondent had scored 15/35 marks and other trainees had scored 24/35 and as such, his training period was extended to second year and during second year also he scored 10/35 marks and that his appraisal was not upto the mark that he was disengaged.
57.A perusal of Ex.P.3-Order of Termination/Order of disengagement dated 30.10.1999 shows that in accordance with Clause (6) of the Training Letter dated 22nd January 1999 [actually it should read as '22.01.1998'] issued to the 2nd Respondent, he was informed that the training period was closed and accordingly, he cease to be a Trainee in a Petitioner/Company effective from the closing of the working hours on 30th October 1999 etc. At this stage, this Court extracts Clause (6) of Ex.P.1-Offer of Employment/Appointment Order dated issued to the 2nd Respondent dated 22.01.1998 which reads as under:
"6.During the period of your training, your services can be terminated at any time by either side by giving one month's notice in writing to that effect or by the Company paying you, in addition to any stipend due to you, and amount equivalent to your one month's consolidated stipend. In that event of your being unable to complete the full period of training owing to illness. Management, at its sole discretion, may extend the period of your training."
58.As per Clause (6) of Ex.P.1 dated 22.01.1998, the 2nd Respondent was issued with one month's stipend for a sum of Rs.4,600/- towards Notice Pay and fifteen days stipend towards Retrenchment Compensation etc. However, this amount, by cheque, was returned by the 2nd Respondent. Even though, the Petitioner/ Management had not issued any formal letter to the 2nd Respondent in extending his period of probation, after completion of one year in terms of Ex.R.9-Standing Order 21(2), it cannot be denied, in the instant case, that the 2nd Respondent till his disengagement was serving only in the capacity as 'Trainee' and as stated already, in the instant case, there was nothing to show that the 2nd Respondent's service was ever regularised or that he was brought on the rolls of the permanent establishment. As such, this Court holds that the 2nd Respondent (Petitioner in W.P.No.20416/2005) was only a 'Trainee' at the time of his disengagement and viewed in that perspective, the stand taken by the 2nd Respondent that he was a Workman and also the view of the 1st Respondent/Additional Labour Court, Salem that when there was no formal order of extension of training period and the Trainee was allowed to continue for more than one year after the completion of one year training and he was discharging the works of regular nature he should be considered as a Workman within the meaning of Section 2(s) of the Industrial Disputes Act, are not correct and legally tenable in the eye of law.
59.Also that, even though Section 2(s) of the Industrial Disputes Act, 1947 uses the term 'Apprentice', yet, merely employing such term within the ambit of the definition of 'Workman', in the considered opinion of this Court, could not confer a vested right on a Trainee to be called as 'Workman' within the meaning of Section 2(s) of the Act. In short, the 2nd Respondent, who was engaged as 'Production Trainee' by the Petitioner/Management, does not fall within the definition of Workman as per Section 2 of the Industrial Disputes Act, 1947. Therefore, an apprentice even though was not engaged in respect of any purported designated trade would not be Workman under the Industrial Disputes Act and therefore, the question of his reinstatement would not arise on any score. Looking at from that angle, the conclusion arrived at by the 1st Respondent/Additional Labour Court, Salem, in its Award dated 09.09.2004 in I.D.No.495 of 2000, that the 2nd Respondent was not a Trainee after completion of training and his non-employment was not justified, is an incorrect one based on the latent and patent facts and circumstances of the present case which float on the surface. As a logical corollary, the contra plea taken on behalf of the 2nd Respondent is not acceded to by this Court.
60.Likewise, the findings rendered by the 1st Respondent/ Additional Labour Court, Salem in I.D.No.495 of 2000 dated 09.09.2004 that the dismissal or discharge of the 2nd Respondent was not justified and that the workman is entitled to all the benefits and further, the Award passed to the effect that the 2nd Respondent could be reinstated into service without backwages and other benefits but with continuity of service from 01.11.1999, are clearly held to be unsustainable by this Court in the eye of law. Resultantly, this Court, to prevent miscarriage of Justice and to secure the ends of Justice, interferes with the Award passed by the 1st Respondent/Additional Labour Court, Salem in I.D.No.495 of 2000 dated 09.09.2004 and sets aside the same. Consequently, W.P.No.8405 of 2005 filed by the Petitioner/Management is allowed and W.P.No.20416 of 2005 filed by the Petitioner (2nd Respondent in W.P.No.8405/2005) is dismissed.
61.In the result, W.P.No.8405 of 2005 filed by the Petitioner/Management is allowed without costs, for the reasons assigned by this Court in this Writ Petition.
W.P.No.20416 of 2005 filed by the Petitioner (2nd Respondent in W.P.No.8405 of 2005) is dismissed without costs.
62.It transpires that in W.P.M.P.No.9075 of 2005 in W.P.No.8405 of 2005, this Court, on 14.03.2005, has passed an Order of Interim Stay of the Award dated 09.09.2004 in I.D.No.495 of 2000 subject to condition that the Petitioner complies with the Section 17 B procedure from the date of the impugned order till the date of filing of the Writ Petition and continues to pay the wages under Section 17 B directly to the Workman/Second Respondent on or before 5th of every month, on production of non-employment certificate.
63.In law, the amount ordered to be paid or paid under Section 17 B of the Industrial Disputes Act, 1947 [Being a statutory exception creating a mandatory liability in favour of an Employee and against the Employer] is neither RECOVERABLE NOR REFUNDABLE. Although this Court has allowed W.P.No.8405 of 2005 filed by the Petitioner/ Management and dismissed W.P.No.20416 of 2005 filed by the 2nd Respondent and in view of the interim orders passed by this Court in W.P.M.P.No.9075 of 2005 on 14.03.2005, if Section 17 B wages was paid and continues to be paid till the date of disposal of the Writ Petitions (viz., today), this Court, at this elongated fag end of the litigation, is not inclined to disturb the interim orders passed in W.P.M.P.No.9075 of 2005 dated 14.03.2005 (by upsetting the apple cart) and instead, orders that no recovery/refund could be effected in this regard from the 2nd Respondent based on the peculiar facts and attendant circumstances of the case.
64.However, if the Petitioner/Management had not paid Section 17 B wages of the Industrial Disputes Act, 1947 as per the interim orders passed in W.P.M.P.No.9075 of 2005 dated 14.03.2005, then, the Petitioner/Management is directed to calculate the same in the post of Trainee on the basis of his last drawn stipend amount at the time of 2nd Respondent's disengagement on 30.10.1999 and pay the entire arrears due to the 2nd Respondent till date [i.e. Disposal of W.P.No.8405 of 2005] within a period of three months from the date of receipt of copy of this order.
06.09.2013 Index :Yes Internet :Yes Sgl To
1.The Presiding Officer, Additional Labour Court, Salem.
2.Authorised Signatory, Mr.Thyagarajan, Management, Exide Industries Limited, Chichurukanapalli Village, Hosur 635 103, Dharmapuri District.
M.VENUGOPAL,J.
Sgl ORDERS IN W.P.No.8405 of 2005 and W.P.No.20416 of 2005 06.09.2013