Gujarat High Court
Bhavnagar Municipal Corporation vs Ghanshyamsinh Harishchandra Jadeja on 7 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/27443/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 27443 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
==========================================================
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 ?
==========================================================
BHAVNAGAR MUNICIPAL CORPORATION....Petitioner(s)
Versus
GHANSHYAMSINH HARISHCHANDRA JADEJA....Respondent(s)
==========================================================
Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
RULE SERVED for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 07/03/2017
ORAL JUDGMENT
1. The petitioner herein challenges the award passed by the labour court, Bhavnagar on 09.02.2007 in the following HC-NIC Page 1 of 8 Created On Mon Aug 14 06:10:51 IST 2017 Page 1 of 8 C/SCA/27443/2007 JUDGMENT background.
2. The respondent applied for the work as apprentice clerk by way of preferring an application on 18.01.1988, addressed to the Municipal Commissioner of Bhavnagar vide order dated 24.02.1988. The petitioner appointed the respondent as an apprentice (clerk) for the period of one year w.e.f. 01.03.1988 on several terms and conditions. The respondent joined in response to the said order on 29.02.1988, he remained absent for a long time while working as an apprentice and therefore, an office note was preferred to that effect. The Principle of Industrial Training Institute at Bhavnagar addressed a letter dated 06/07.01.1989 to the petitioner to the effect that certain apprentice working with Bhavnagar Municipal Corporation be relieved for further training.
3. An office note was moved on 13.01.1989, along with a list of apprentice for appropriate order to relieve them. The respondent was relieved w.e.f. 28.02.1989 to enable him to join the Industrial Training Institute at Bhavnagar.
4. The respondent has approached the labour court after a period of about 9 (Nine) years by way of preferring the Reference (LCB) No.16 of 1998 praying for reinstatement with continuity and back wages. The main ground was the wrong HC-NIC Page 2 of 8 Created On Mon Aug 14 06:10:51 IST 2017 Page 2 of 8 C/SCA/27443/2007 JUDGMENT termination on the part of the petitioner from the post of clerk w.e.f. 31.01.1989.
5. The petitioner filed a written statement narrating all the facts. The respondent moved an application for production of certain documents before the labour court and in response to that, it was pointed out that as certain documents were not available after a period of ten (10) years. An officer of petitioner-Corporation remained present before the labour court and deposed that the respondent was purely an apprentice. All available records were placed before the labour court through the list on 25.11.2004.
6. The labour court ordered for reinstatement without continuity of service and back wages vide its order dated 09.02.2007. This has been challenged by this petition with the following prayers.
"Para 7.
(A) Be pleased to admit the present Special Civil Application.
(B) Be pleased to allow this Special Civil Application by way of issuing appropriate writ, mandamus order or directions quashing and setting aside the impugned award dated 09.02.2007 passed by the Labour Court at Bhavnagar in Reference (LCB) No.16 of 1998, annexed as Annexure-M, by way of holding that the same is illegal, unjust, arbitrary, without jurisdiction and contrary to the provisions of the Industrial Disputes Act, 1947 in the interest of justice.
(C) Pending the admission, final hearing and disposal HC-NIC Page 3 of 8 Created On Mon Aug 14 06:10:51 IST 2017 Page 3 of 8 C/SCA/27443/2007 JUDGMENT of the present Special Civil Application be pleased to stay the implementation, execution and operation of the impugned award dated 09/02/2007 passed by the Labour Court at Bhavnagar in Reference (LCB) No.16 of 1998, annexed as Annexure-M, in the interest of justice.
(D) Be pleased to call for the record of the proceedings in Reference (LCB) No.16 of 1998 preferred before the Labour Court at Bhavnagar by the respondent by way of passing appropriate orders.
(E)Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable Court may deem though fit to pass such order."
7. Learned advocate Mr.Chauhan appearing with learned advocate Mr.H.S.Munshaw has been heard for Bhavnagar Municipal Corporation. The other side though has been served with the notice, he has not chosen to remain present.
8. This court had examined at length various provisions the award of the labour court and also the law on the subject. It is an undisputed fact that the respondent who was appointed as apprentice for the period of one week w.e.f. 01.03.1988 on certain terms and conditions. The respondent remained absent for a long time. The Principal of Industrial Training Institute at Bhavnagar addressed a letter on 06-07/01/1989 to the petitioner to the effect that certain apprentice working with corporation be relieved. An office note was moved on 13.01.1989 with a list of apprentice for relieving them. The HC-NIC Page 4 of 8 Created On Mon Aug 14 06:10:51 IST 2017 Page 4 of 8 C/SCA/27443/2007 JUDGMENT respondent was relieved vide order dated 21.01.1989, giving effect to such an order from 28.02.1989.
8.1 If one looks at law on the subject of apprenticeship, the Hon'ble Supreme Court in case of National Small Industries Corporation Limited Vs.V.Lakshminarayanan, reported in (2007) 1 SCC 214 considered the applicability of Sections 2 (s) and 2(oo)(bb) of the I.D. Act to hold that Section 18 of the Apprentice Act, 1961 provides that apprentices are not workers and provisions of law with effect to labour shall not apply to or in relation to apprentice's claim. The court held that the High court could have justifiably embark upon the exercise as to whether the respondent was in fact a trainee under the Apprentice Act or workman within the meaning of Section 2 (s) of the I.D.Act. In absence of anything on record to indicate that the respondent's services had been ever regularized or that he was brought on the roll of permanent establishment, the Apex Court held that the respondent's case is covered under the provisions of Section 18 of the Apprentices Act, 1961 and both, the labour court and the High Court erred in proceedings on the basis that he was a workman to whom the provision of I.D.Act would apply. 8.2 In the case of Haryana Power Generation Corporation Ltd vs. Harkesh Chand and others reported in (2013) 2 SCC 29 the question was the period of trainee/ HC-NIC Page 5 of 8 Created On Mon Aug 14 06:10:51 IST 2017 Page 5 of 8 C/SCA/27443/2007 JUDGMENT apprenticeship can be counted towards regular service while considering Assured Career Progression Scale and it was held that ordinarily the period spent in apprenticeship training is not countable towards regular service. The court held that the nature and character of the apprentice is that of a training and by virtue of the contract entered into, he is to serve on a fixed period, on fixed stipend and that would not change the character of apprentice to that of a workman and apprentice does not have a statutory right to claim an appointment and the employer is not under the statutory obligation to give him an employment. However, on successful completion of apprenticeship, an employer would offer him an employment, if laid down in condition of contract. In absence of such a condition, there is no obligation upon the employer to offer such person an employment. The letter, which has been issued in favour of the respondent dated 24.02.1988, indicates that after the completion of the period on apprenticeship, there was no right to be employed or to get the permanent employment with municipal corporation.
9. Thus, it is quite clear by looking at the law as well as the letter which had been issued in favour of the respondent that the appointment was as an apprentice and even the letter of appointment does not make it obligatory on the part of the HC-NIC Page 6 of 8 Created On Mon Aug 14 06:10:51 IST 2017 Page 6 of 8 C/SCA/27443/2007 JUDGMENT petitioner to offer the job on completion of the training. During the course of the training due to absenteeism and due to the communication of Principal of Industrial Training Institute at Bhavnagar, the respondent was relieved for further training to enable him to join Industrial Training Institute. It appears that he never joined the training and raised the dispute after about nine (9) years.
10. Thus having remained absent continuously and also by not joining the training with the Industrial Training Institute at Bhavnagar, the petitioner has abandoned his cause. He was an apprentice and not a workman as held as discussed herein above. His having invoked the jurisdiction of labour court after nine years would also attract the ratio laid down in case of Prabhakar vs. Joint Director Sericulture Department and ors.
11. In every which way the award deserves interference, the same is quashed and set aside. Before this court also the respondent has chosen not to contest the petition at any stage. The labour court materially erred in appreciating the evidence and in allowing the prayers of reinstatement after so many years and also when the respondent was not the workman.
HC-NIC Page 7 of 8 Created On Mon Aug 14 06:10:51 IST 2017
Page 7 of 8
C/SCA/27443/2007 JUDGMENT
12. Resultantly, award is quashed and set aside. Rule is discharged. Ad-interim relief, if any, stands vacated. Petition is disposed of accordingly.
(MS SONIA GOKANI, J.) MIRZA HC-NIC Page 8 of 8 Created On Mon Aug 14 06:10:51 IST 2017 Page 8 of 8