Gujarat High Court
M/S.Ficom Organics Ltd vs Patel Pramod Indravadan on 13 April, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/2434/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2434 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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M/S.FICOM ORGANICS LTD.....Petitioner(s)
Versus
PATEL PRAMOD INDRAVADAN....Respondent(s)
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Appearance:
MR VINAY BAIRAGRA, M/S TRIVEDI & GUPTA, ADVOCATE for the
Petitioner(s) No. 1
MS REENA KAMANI, MR PH PATHAK, ADVOCATE for the Respondent(s) No.
1
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 13/04/2017
ORAL JUDGMENT
1. The petitioner is a limited company registered under the Indian Companies Act, 1956. It is engaged in the business of manufacturing pesticides and having its registered office at Mumbai.
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2. The petitioner challenges the legality
and validity of the award passed by the Labour Court, Bharuch, Dated: 06.12.2005, in Reference (LCB) No. 512 of 1999, where the petitioner is directed to reinstate the workman with 50% backwages.
3. The facts in capsulized form deserve reference at this stage:
The respondent workman was appointed as trainee boiler-cum-incinerator operator in the petitioner-Company on 14.04.1998, as an apprentice. He was being paid Rs.1500/- per month as stipend. He was initially required to undergo training for a period of six months and thereafter as per the discretion of the Management of the petitioner-company his training would be extended, if required and unless made permanent by a specific order, he was not to be treated as a permanent employee. It is the say of the petitioner that the initial appointment was for a period of six months, i.e. from 15.04.1998 to 15.10.1998, and thereafter, it was extended for a further period of three months, i.e. up to 14.01.1999. On 07.04.1999 a communication was sent through RPAD to the respondent by the petitioner stating inter alia there in that as Page 2 of 33 HC-NIC Page 2 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT per Clause-3 of the offer letter his training was to be discontinued from 13.04.1999.
3.1 In continuation of such communication dated 07.04.1999, another communication was addressed to the Respondent by the petitioner in September, 1999, stating therein that a letter was sent to him by RPAD, which has returned on the ground of his non-acceptance and therefore a cheque of Rs.1426.25 towards the full and final settlement has been enclosed and sent to him by RPAD.
3.2 An industrial dispute therefore came to be raised by the respondent wherein he gave his statement of claim and the matter was referred to the Labour Court, Bharuch, vide Reference (LCB) No. 512 of 1999. It was his case in the statement of claim that he was though appointed as an apprentice from the beginning, the work was taken from him as a technically skilled worker of boiler operator and he also was permitted overtime. He continued to work initially for a period of six months and thereafter for further period of three months, i.e. for the total period of nine months, till his services came to be terminated on 13.03.1999. On that day he was asked not to continue and thus his services came to be abruptly ended.Page 3 of 33
HC-NIC Page 3 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT 3.3 Written statement had been filed by the petitioner-company before the Labour Court where it has not been disputed that he was working as a trainee on the post of boiler-cum-incinerator and the terms and conditions set out in the letter dated 15.04.1998 would govern his appointment. However, it has been urged that the provisions of the Industrial Disputes Act, 1947 (for short, 'the ID Act'), would not be applicable to his case since he continued to work as an apprentice. According to the respondent one of the conditions set out in the letter of appointment dated 15.04.1998, was to the effect that his services could be ended at any time. His work since was not found satisfactory, his training was extended for a further period of three months and thereafter, it was needed to be ended and hence he was communicated by a letter dated 07.04.1999 to that effect. He was also sent a cheque drawn in his name of the State Bank of India, Ankleshwar branch.
3.4 After the respondent examined himself before the Labour Court, on behalf of the petitioner, Asst. Personnel Administrative Surveyor was examined by the present petitioner. The Labour Court on due consideration had directed the reinstatement with 50% backwages.
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The Labour Court was of the opinion that he was working from the beginning as a skilled technical worker and at the time of his termination also, he had been treated as being permanent as communication by the petitioner itself is indicative that the respondent had completed 240 days of service. On cumulative examination of the facts, the Labour Court awarded reinstatement with 50% backwages which is under challenge before this Court with the following prayers:
"9. ...
(A) Your Lordships may be pleased to admit and allow the present petition;
(B) Your Lordships may be pleased to issue writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or order holding and declaring that the directions in the impugned award dated 6.12.2005 passed by the Labour Court, Bharuch, in Reference LCB No. 512 / 1999 are violative of Article 14 and 19(1)(g) of the Constitution of India and are harsh, unjust, unreasonable, illegal and arbitrary and unsustainable in law as well as on facts.
(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ order or direction Page 5 of 33 HC-NIC Page 5 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT quashing and setting aside the impugned award dated 6.12.2005 passed by the Labour Court, Bharuch, in Reference LCB No. 512 / 1999;
(D) Pending hearing and final disposal of present petition, Your Lordships may be pleased to pass appropriate writ, order or direction, as and by way of interim relief, staying the implementation, operation and execution of the impugned award dated 6.12.2005 passed by the Labour Court, Bharuch, in Reference LCB No. 512 / 1999;
(E) An ex-parte ad interim relief in terms of Para 9 (D) above may kindly be granted in favour of the petitioners;
(F) ..."
4. Learned Advocate, Mr. Bairagra,
appearing for M/s. Trivedi & Gupta for the
petitioner has strenuously made submissions.
According to him it is not in dispute that the respondent was appointed as an apprentice trainee. Both the letters that he had produced and his deposition clearly indicate that upto
04.01.1999 he was working as trainee. It is further his say that, thereafter, he was not found to be entitled to become a permanent or regular employee. It is his further say that in case of the respondent the provisions of the Apprentices Act, 1961, shall apply and the provisions of the ID Act will have no Page 6 of 33 HC-NIC Page 6 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT applicability. He urged that Section 2(S) of the ID Act would include an apprentice and the respondent has failed to discharge the onus that he had been engaged as a skilled, manual, unskilled, skilled, technical, operational or for supervisory work from the beginning. It is further his say that it is also not automatic for him to become regular employee and an apprentice, not being a workman, his period of apprenticeship cannot be counted for counting continuous service of 240 days. If it is argued that after January, 1999, he was continued, at the best his service period of three months where he could said to have been appointed as dailywager and hence, there would be no need to comply with the provisions of Section 25F of the ID Act. He has sought to rely on the following authorities to substantiate his version:
(1) 'MUKESH K. TRIPATHI VS. SENIOR DIVISONAL MANAGER, LIC AND OTHERS', (2004) 8 SCC 387;
(2) 'U.P. STATE ELECTRICITY BOARD VS. SHIV MOHAN SINGH AND ANOTHER', (2004) 8 SCC 402;
(3) 'GUJARAT WATER RESOURCES DEVELOPMENT CORPORATION LTD. VS. HASMUKHBHAI LAXMANBHAI PATEL AND ANOTHER', 2005(4)GLR 2903 Page 7 of 33 HC-NIC Page 7 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT
5. Per contra, learned Advocate, Ms. Kamani, appearing with learned Advocate, Mr. Pathak, for the respondent has vehemently submitted that this is a case of unfair labour practice on the part of the petitioner-company who chose to continue him beyond the period of training and also while in the training, he performed skilled and technical work. She also has urged that the Labour Court also found that the notice had been issued to him which indicated the grant of 15 days of pay as was otherwise required under the law and that also would lead to the conclusion that he was on completion of the training and appointed on regular basis. She urged that nobody from the petitioner's side had deposed anything regarding the work that has been performed by the respondent. There was no reason with the petitioner to grant him pay and other benefits from day one. He was also discharging his duties independently and was also permitted the overtime which never happens in case of an apprentice.
6. Having thus heard both the sides, this Court needs to consider firstly the letter of appointment dated 15.04.1998, which had been issued to the respondent, which states under the heading 'Employment' given by one Mr. K.K. Karone, Manager Personnel and Administration, for Page 8 of 33 HC-NIC Page 8 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT and on behalf of the petitioner-company after his interview for the post of trainee boiler-cum- incinerator has resulted into giving of such appointment. It further states that he has been appointed as a trainee boiler-cum-incinerator on certain terms and conditions.
7. Thus on 15.10.1999, the management having found his performance during the training period not satisfactory, his training period had been further extended up to three months i.e. up to June, 1999. It appears that after 14.06.1999, there was no communication, but, his services were continued. On 07.04.1999, the letter addressed to the respondent indicate that his appointment has come to an end on 13.04.1999. Clause-3 of the offer letter stated that during the training period, his services could be terminated without any notice. Admittedly, after 14.06.1999 there was no extension of training period. He had been continued on the very post till he was orally terminated by the management of the petitioner.
8. He since said to have refused to collect his legal dues, a letter was sent to him on 07.04.1999 and the letter since had been returned on his not having accepted a cheque of Rs.1426.25 towards the full and final settlement, the same Page 9 of 33 HC-NIC Page 9 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT was sent to him by the RPAD.
9. The attention of this Court has been drawn to the full and final settlement form which indicates that his total period of service is 11 months and 6 days from the date of his appointment on the post of boiler-cum-incinerator operator and he was given basic salary of Rs.1500/-. His PPF deduction was Rs.95/-, ESI deduction was Rs.14.35/- and there is no amount towards gratuity. It is however stated that since he has completed 240 days' service in a year, he was being paid 15 days' wages, i.e. Rs.833.25.
10. Thus, it appears that the stand of the petitioner had been that the respondent had been at no point of time made permanent. He was initially taken as a trainee and he continued as trainee. His services since were not found satisfactory, the same came to be ended on 13.04.1999. The stand taken by the respondent before the Labour Court in oral deposition and which has been even sustained in the cross- examination is that he worked as a skilled and technical worker. He also had been given the overtime even during the training period. He was not just paid a stipend of Rs.1500/- but there was payments under other heads also. It is also to be noted that the amount which was admitted to Page 10 of 33 HC-NIC Page 10 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT be paid to the respondent as indicated in the full and final settlement form includes 14 days' pay, indicated in Clause-4 of the offer letter.
It is the say of the petitioner that the respondent did not successfully complete training and therefore, his service came to be terminated. However later on, while paying him his full and final dues, pay for 14 days was also paid to him as per Clause-4 of the appointment letter vide communication dated 07.04.1999, stating there in that his services comes to an end on 13.04.1999. The said communication dated 13.04.1999 also states that as per Clause-3 of the appointment letter his service was discontinued with immediate effect when he was still in the training and his services were liable to be terminated without any notice. There was no reason for the petitioner to pay him 14 days' wages and he was also not required to pay any other amount as per Clause-4 of the appointment letter. It is only after the termination of the services of the respondent that such Clause-4 needed to be invoked which in this case has been done by the petitioner. It is though from the beginning the say of the respondent that his service came to an end on 13.04.1999, the first communication is of 07.04.1999 by paying him full and final Page 11 of 33 HC-NIC Page 11 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT settlement upto 21.03.1999.
11. The person who had deposed before the Labour Court for and on behalf of the petitioner- company admits that he has no knowledge of the nature of the work that was being carried out by the respondent. However, he maintains that the training for nine months continued upto 14.01.1999.
12. Therefore the picture that emerges very clear is that there is no challenge to the period of training which was extended beyond 15.10.1998 upto 14.01.1999. He since did not complete successfully six months training such period as per the letter of appointment was extended and that is not being disputed. Of course, the explicit challenge is to two letters. However, the fact remains that beyond 14.01.1999 there is no letter either confirming him or extending his training and straightaway came firstly the termination as per Clause-3 which would mean that as the training had continued and therefore he was liable to be terminated at any time during the training period but later on the petitioner appears to have changed his stand and while paying him full and final settlement it had considered his total service beyond 240 days and had paid him as required under Section 25F of the Page 12 of 33 HC-NIC Page 12 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT ID Act, the wages of 14 days and other benefits.
13. Section 25F of the ID Act provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such a notice wages for the notice period. It further provides that the workman has been paid at the time of retrenchment compensation which shall be equivalent to 15 days' average pay for every completed year of continuous service or any part thereof in excess of six months and notice in the prescribed manner is served on the appropriate government or such authority as may be specified by the appropriate government by notification in the official gazette.
14. Section 25F of the ID Act thus lays down that a notice in the manner prescribed under the ID Act is to be given to the appropriate government or the authority prescribed in writing or one month's pay in lieu of notice or the retrenchment compensation to the workman. The execution of the above provisions has been in detail examined by the Apex Court in 'EMPIRE Page 13 of 33 HC-NIC Page 13 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT INDUSTRIES VS. STATE OF MAHARASHTRA AND OTHERS', (2010) 4 SCC 272. These provisions are mandatory in nature and its non-compliance would result in rendering the order of termination void ab initio.
15. Thus there are two stands taken by the petitioner-company concerned, it has on one hand chosen to insist on having terminated his services as per Clause-3 of the appointment letter, and on the other hand it also has invoked Clause-4 of the appointment letter by stating that on completion of the training period, if there is need to end the services, the procedure that needs to be followed has been followed in case of the respondent which also amounts to the compliance of Section-25F of the ID Act.
The Labour Court in wake of these facts and circumstances so also on appreciation of the evidence which have been adduced before it concluded that this was a case of respondent having worked not as a trainee apprentice but as a workman. The Labour Court was also of the opinion that even if it is believed that the full and final settlement form had been filled and the amount had been dispatched at the address of the respondent, it was not in compliance of Section 25F of the ID Act. It is also clear that services Page 14 of 33 HC-NIC Page 14 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT came to an end prior to the compliance of the provisions of Section 25F of the ID Act vide letter dated 04.03.1999, where an attempt was made to end the services on 13.03.1999. The letter which has been produced before this Court is of 07.04.1999, which states that the services would come to an end on 15.04.1999, and he had been also asked to collect his legal dues. Later on, as mentioned herein above, the only communication was sent was in the month of September, 1999, paying him the amount which included not only the wages but other dues also which has been included as mentioned herein above.
16. At this stage it would be apt to refer to the decision relied on by the petitioner- company in case of 'MUKESH K. TRIPATHI VS. SENIOR DIVISONAL MANAGER, LIC AND OTHERS' (Supra). This was an appeal against the judgment of the High Court of judicature at Allahabad, wherein the appellant was appointed by the Life Insurance Corporation of India as Apprentice Development Officer on certain terms and conditions. He was terminated in terms of a particular paragraph of the offer of appointment and the contention was raised by the Respondent-authority that he was not a workman within the meaning of Section 2(s) of the ID Act. It was held by the Tribunal that Page 15 of 33 HC-NIC Page 15 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT on completion of apprenticeship, he should be held a 'Workman' within the meaning of Section 2(s) of the ID Act and the High Court had allowed the writ-petition of the LIC, which was challenged by the appellant.
The Apex Court did not entertain the appeal. It is quite clear from this judgment that at the end of the apprenticeship / apprentice training, the apprentice must satisfy the statutory requirement and establish that he had been working as a workman thereafter. In that case the Apex Court was considering the case of an apprentice and also the question as to who can be called a workman. It held that Section 18 read with Section 2(aa) of the Apprentices Act, 1961, carves out an exception to the applicability of labour laws in the event the person concerned is an apprentice, as contra distinguished from the expression worker, employee and workman used in different statutes. It further held that though the definition of workman in the ID Act includes an apprentice a workman thereunder must conform to the requirements laid down in the ID Act inter alia that he must be working in one or the other capacities mentioned in Section 2(s) of the ID Act and not otherwise to acquire the status of a workman. The Court also held that where a person is allowed to continue without extending the Page 16 of 33 HC-NIC Page 16 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT period of apprenticeship either expressly or by necessary implication and regular work is taken from him then he may become a workman. Accordingly, it concluded held that the duties and obligations of a Development Officer of LIC by no stretch of imagination can be held to be performed by an apprentice. The relevant paragraphs read as under:
"26. We may consider the matter from another angle, viz., the appointment of the Appellant as an apprentice under the Scheme vis-'- vis the Apprentices Act, 1961.
27. The expression 'Apprentice' has been included in the definition of 'workman' contained in Section 2(s) of the Industrial Disputes Act, 1947 but by reason of a subsequent Parliamentary legislation, namely, Apprentices Act, 1961 (the 1961 Act), the term 'apprentice' has been defined in Section 2(aa) to mean "a person who is undergoing apprenticeship training in a designated trade in pursuance of a contract of apprenticeship. Section 18 of the 1961 Act provides that apprentices are trainees and not workers save as otherwise provided in the Act. Clauses (a) and (b) of Section 18 of the 1961 Act read thus :
"(a) every apprentice undergoing apprenticeship training in a designated trade in an establishment Page 17 of 33 HC-NIC Page 17 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT 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."
28. The term 'employee' under various labour laws has been defined by different expressions but Section 18 of the 1961 Act carves out an exception to the applicability of labour laws in the event the concerned person is an apprentice as contra-distinguished from the expressions 'worker', 'employee' and 'workman', used in different statutes.
29. 'Apprentice' under the general law means a person who is bound by a legal agreement to serve an employer for an agreed period and the employer is bound to instruct him. In Halsbury's Laws of England, 4th Edn. Volume 16, it is stated :
"586. Form and parties. A contract of apprenticeship is unenforceable if it is not in writing. Usually the contract is effected by deed under which the apprentice is bound to serve a master faithfully in a trade of business for an agreed period and the master undertakes to give the apprentice instruction in it and either to maintain him or pay his wages. Technical words are not necessary.
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An apprentice cannot be bound
without his own consent, and consent without execution of the instrument is insufficient. The instrument must be executed by the apprentice himself, for no one else has a right to bind him. In the case of a minor his father or mother or other guardian, although not necessary parties to the contract, usually execute it too in order to covenant for the apprentice's due performance of the contract since, in the absence of a local custom, an apprentice who is a minor cannot be sued on his own covenant. A contract of apprenticeship is binding on a minor only if it is on the whole beneficial to him.
It is not essential that the master should execute a deed of apprenticeship, but where a master had in fact executed one part of an instrument of apprenticeship, a recital in that part of the instrument that the apprentice had bound himself apprentice to the master is evidence against the master that the apprentice had executed the other part of the instrument. A corporation may take an apprentice."
30. 'Apprentice', as noticed herein before, is defined to mean a person who is undergoing apprenticeship training pursuant to a contract of apprenticeship. How a contract of apprenticeship would be entered into is to be found in sub-section (1) of Section 4 of the 1961 Act. The Page 19 of 33 HC-NIC Page 19 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT embargos placed in this regard are:
(I) entering into a contract of apprenticeship with a minor in which event the contract must be executed by his guardian; and (ii) on such terms or conditions which shall not be inconsistent with any provision of the Act or any rule framed thereunder.
31. Furthermore, the apprentice must satisfy the statutory requirements as regard qualification to be appointed as an apprentice.
32. Training of apprenticeship by reason of sub-section (2) of Section 4 shall be deemed to have commenced on the date on which the contract of apprenticeship has been entered into under sub-section (1) thereof.
33. The provisions of the Scheme framed by the Corporation conform to the provisions of the Apprentices Act and Rules framed thereunder. It is worth noticing that Provident funds and insurance have been specified to be a 'designated trade' within the meaning of Section 2(k) of the Apprentices Act, 1961 by a notification No. G.S.R. 463(E) dated 23rd August, 1975.
34. The definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act, 1947 includes an apprentice, but a 'workman' defined under the Industrial Disputes Act, 1947 must Page 20 of 33 HC-NIC Page 20 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT conform to the requirements laid down therein meaning thereby, inter alia, that he must be working in one or the other capacities mentioned therein and not otherwise.
35. We may further notice before the Tribunal a contention was raised by the Appellant that upon expiry of the period of one year he was appointed as a probationary officer but the said plea was categorically rejected by the Tribunal holding :
"7. The concerned workman has also pleaded that after expiry of one year he was appointed as Probationary Development Officer. No date of issuance of such order has been filed. In its absence the version of the concerned workman is disbelieved and it is held that concerned workman after expiry of apprenticeship was not appointed as Probationary Development Officer. Instead he continued to work as Apprentice."
36. A 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprenticeship Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be Page 21 of 33 HC-NIC Page 21 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute.
37. In case any person raises a contention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In absence of any pleading or proof that either by novation of the contract or by reason of the conduct of the parties, such a change has been brought about, an apprentice cannot be held to be workman.
38. It is true that the definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act is exhaustive.
39. The interpretation clause contained in a statute although may deserve a broader meaning having employed the word 'includes' but therefor also it is necessary to keep in view the scheme of the object and purport of the statute which takes him out of the said definition. Furthermore, the interpretation section begins with the words "unless the context otherwise requires".
Page 22 of 33 HC-NIC Page 22 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT 40. In Ramesh Mehta Vs. Sanwal
Chand Singhvi & Ors. Reported in 2004 (5) SCC 409, it was noticed :
"27. A definition is not to be read in isolation. It must be read in the context of the phrase which would define it. It should not be vague or ambiguous. The definition of words must be given a meaningful application; where the context makes the definition given in the interpretation clause inapplicable, the same meaning cannot be assigned.
28. In State of Maharashtra v. Indian Medical Assn. One of us (V.N. Khare, C.J.) stated that the definition given in the interpretation clause having regard to the contents would not be applicable. It was stated : (SCC p.598, para 8) "8. A bare perusal of Section 2 of the Act shows that it starts with the words 'in this Act, unless the context otherwise requires\005'. Let us find out whether in the context of the provisions of Section 64 of the Act the defined meaning of the expression 'management' can be assigned to the word 'management' in Section 64 of the Act. In para 3 of the Regulation, the Essentiality Certificate is required to be given by the State Government and permission to establish a new medical college is to be given by the State Government under Section 64 of the Act. If we give the Page 23 of 33 HC-NIC Page 23 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT defined meaning to the expression 'management' occurring in Section 64 of the Act, it would mean the State Government is required to apply to itself for grant of permission to set up a government medical college through the University. Similarly it would also mean the State Government applying to itself for grant of Essentiality Certificate under para 3 of the Regulation. We are afraid the defined meaning of the expression 'management' cannot be assigned to the expression 'management' occurring in Section 64 of the Act. In the present case, the context does not permit or requires to apply the defined meaning to the word 'management' occurring in Section 64 of the Act.""
41. In Sri Chittaranjan Das vs. Durgapore Project Limited & Ors. [1995 (2)CLJ 388], it was opined:
"In my opinion, it is not difficult to resolve the apparent conflict. Both in the Industrial Employment (Standing Order) Act, 1946 as also the certified Standing Order of the company the word "including an apprentice" occurs after the word 'person'. In that view of the matter in place of the word 'person', the word 'apprentice' can be substituted in a given situation but for the purpose of becoming a workman either within the meaning of the 1946 Act or the standing order framed thereunder, he is required to fulfil the other conditions laid down therein meaning thereby he is Page 24 of 33 HC-NIC Page 24 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT required to be employed in an industry to do the works enumerated in the said definition for hire or reward, whether the terms of employment be express or implied."
42. The question as to who would answer the description of the term 'workman' fell for consideration before this Court in Dharangadhra Chemical Works Ltd. vs. State of Saurashtra and Others [AIR 1957 SC 264], wherein this Court held :
"The essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between the employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act."
43. Yet again in Workmen of Dimakuchi Tea Estate vs. Management of Dimakuchi Tea Estate [AIR 1958 SC 353], this Court held : "A little careful consideration will show, however, that the expression 'any person' occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all, the subject matter of dispute must relate to (i) Page 25 of 33 HC-NIC Page 25 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT employment or non-employment or (ii) terms of employment or conditions of labour of any person; these necessarily import a limitation in the sense that a person in respect of whom the employere mployee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workman. Secondly, the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act. It is well settled that \026 "the words of a statute , when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained." (Maxwell, Interpretation of Statutes, 9th Edition, p.55)."
17. In 'U.P. STATE ELECTRICITY BOARD VS. SHIV MOHAN SINGH AND ANOTHER' (Supra) the Apex Court was examining once again the issue of apprentice appointed under the Apprentices Act, 1961, to hold that a combined reading of the Sections as well as Rules makes it clear that the apprentices are only the persons, who undergo training and during that training they are entitled to get a particular stipend, they have to work for a fixed Page 26 of 33 HC-NIC Page 26 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT hours and at the end of period of training they have to appear in the test and a certificate is issued to them. There is no obligation on the part of the employer to give them any employment whatsoever. The position of the apprentice remains as an apprentice/a trainee and during the period of training they will not be treated as a workman. Only obligation on the part of the employer is to impart them training as per provisions of Act & Rules and to pay them stipend as required under Rule 11 and beyond that there is no obligation on the part of the employer to accept them as his employees and give them a status of workman. There is no relation of master & servant or employer & employee. The relevant observations made by the Apex Court reads thus:
"41. In this background of the Act and Rules, the question which arises for interpretation is what is the effect of non-registration of the contract because sub-section (4) of Section 4 read with Rule 6 requires that every contract of apprentice shall be sent by the employer to the Apprenticeship Adviser for registration within three months. Therefore, in case the contract of apprenticeship is not sent to the Apprenticeship Adviser for registration, what will be the effect thereof?
42. As per the scheme of the Page 27 of 33 HC-NIC Page 27 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT Act it appears that the contract of apprentice is entered with employer & apprentice, and he has to undergo a training for fixed duration & he will get stipend for that. After the successfully undergoing training he appears for test for certificate as required under Section 21. During the training period he will be treated as an apprentice and he shall not be deemed as a workman as per Section 18 of the Act read with definition of 'workman' under section 2(r). It is ordained in sub- section (b) of Section 18 that provisions of any law with respect to labour shall not apply to or in relation to such apprentices. Therefore, on a reading of all the provisions together what it transpires is that apprentices will be treated as apprentice and he will not acquire a status of workman in that establishment. After the successful completion of the training he will undergo a test and on being successful in the test a certificate to that effect will be issued to him as per Section 21. It is open for the employer to offer him employment but it will not be obligatory on the part of the apprentice to serve that employer as per Section 22 except when there is specific condition of contract to that effect. During the course when he undergoes the apprenticeship training he is only entitled to get stipend under Rule 11 at such rate as are prescribed in the Rules.
43. Therefore a combined reading of the Sections as well as Rules makes Page 28 of 33 HC-NIC Page 28 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT it clear that the apprentices are only the persons undergo training and during that training they are entitled to get a particular stipend, they have to work for a fixed hours and at the end of period of training they have to appear in the test and a certificate is issued to them. There is no obligation on the part of the employer to give them any employment whatsoever. The position of the apprentice remains as an apprentice/a trainee and during the period of training they will not be treated as a workman. Only obligation on the part of the employer is to impart them training as per provisions of Act & Rules and to pay them stipend as required under Rule 11 and beyond that there is no obligation on the part of the employer to accept them as his employees and give them a status of workmen. There is no relation of master & servant or employer & employee."
18. This Court also in the case of 'GUJARAT WATER RESOURCES DEVELOPMENT CORPORATION LTD. VS. HASMUKHBHAI LAXMANBHAI PATEL AND ANOTHER'(Supra), was considering the question of termination of services of apprentice who was engaged for one year and thereafter continued as daily wager till termination. This Court held that apprentice is not a workman and the period of apprenticeship cannot be counted for computing continuous services of 240 days and thereby the award of Page 29 of 33 HC-NIC Page 29 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT reinstatement was set aside.
19. On principle this would not be disputed particularly in wake of the decisions which have been discussed herein above.
20. The question therefore that arises for this Court is whether the Labour Court was justified in holding that there exists employer- employee relationship or the master-servant relationship between the parties. More particularly in wake of the letter of appointment which had been issued at the beginning in favour of the respondent by the petitioner. The details of the clauses mentioned in the letter of appointment which are necessary for the purpose have already been discussed herein above.
21. The evidence which have been adduced before the Labour Court by the petitioner is done half heartedly. The officer who had deposed for and on behalf of the petitioner before the Labour Court was not having any personal knowledge. He orally deposed that respondent had not completed 240 days because of his training period was of 9 months. But at the same time while paying the respondent his legal dues the payment of 14 days of the wages along with other benefits has been Page 30 of 33 HC-NIC Page 30 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT taken care of. It is also further not in dispute that the first communication for ending services to the respondent was of 07.04.1999 whereas his services has been terminated from 13.04.1999. He had been asked to collect his legal dues without specifying anything with regard to compliance of provisions of Section 25F of the ID Act. It is, as mentioned herein above, the contrary stand which has been taken by the petitioner Management. Assuming that he was a daily wager then there would not have any requirement of paying him any amount as provided under Section 25F of the ID Act which is not the case here. It appears that after having realized that the services of the respondent could not have been ended as there was no extension granted beyound the period of June, 1999, the 14 days' wages had been considered and calculated by the petitioner to comply with the provisions of Section-25F of the ID Act. Petitioner itself when admits that he had completed 240 days and had issued notice on 07.04.1999, which does not anywhere provides for 14 days' retrenchment compensation in lieu of notice or notice pay. The compliance of Section 25F of the ID Act will have to be as per the law and not as per the sweet will of the employer. Therefore the payment in the month of September, 1999, would not serve the purpose. Reliance on the part of the petitioner on Clause-3 and Page 31 of 33 HC-NIC Page 31 of 33 Created On Tue Aug 15 23:36:11 IST 2017 C/SCA/2434/2006 JUDGMENT Clause-4 of the appointment letter and the communications dated 07.04.1999 and September, 1999 clearly indicate that the Labour Court has so far as considered the non-compliance of Section 25F of the ID Act and has committed no error.
22. The factual details which emerge from the record would not permit this Court to disagree with the Labour Court so far as its conclusion on non-compliance of Section 25F of the ID Act is concerned.
23. So far as the grant of 50% backwages is concerned, all these years the respondent has not worked and therefore there is no reason to grant 50% backwages. Therefore, while UPHOLDING the order of the Labour Court to the extent of granting reinstatement, the respondent shall be entitled to get backwages to the extent of 20% from the date of termination till the award of the labour Court, i.e. for the period between 13.04.1999 to 06.12.2005 ONLY. Since, the petitioner has already been given the benefit of Section 17B for the period beyond the award till his reinstatement, there is no need to grant backwages for the said period. This petition stands DISPOSED OF, accordingly. Rule is made absolute to the aforesaid extent.
(MS SONIA GOKANI, J.)
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UMESH
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