Gujarat High Court
Bhavnagar Municipal Corp vs Bobby Tansukhrai Shukla & 2 on 13 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/8396/2004 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8396 of 2004
[On note for speaking to minutes of order dated 09/02/2017 in
C/SCA/11252/2002 ]
================================================================
BHAVNAGAR MUNICIPAL CORP.....Petitioner(s)
Versus
BOBBY TANSUKHRAI SHUKLA & 2....Respondent(s)
================================================================
Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 1
MR BJ TRIVEDI, ADVOCATE for the Respondent(s) No. 1.1 - 1.1.1
MR JT TRIVEDI, ADVOCATE for the Respondent(s) No. 1.1 - 1.1.1
MS JIGNASA B TRIVEDI, ADVOCATE for the Respondent(s) No. 1.1 - 1.1.1
================================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 13/04/2017
ORAL ORDER
Mr. Trivedi learned advocate for Respondent (Applicant of speaking to minute) submitted that the applicant does not press this note in form of speaking to minute and it may be disposed of as withdrawn in light of the communication dated 4.2.2017, which was referred to by learned advocate for the Corporation at the time of Page 1 of 2 HC-NIC Page 1 of 57 Created On Sun Aug 13 06:56:53 IST 2017 1 of 57 C/SCA/8396/2004 ORDER hearing of the petition because the petitioner intends to make appropriate request to the Labour Court to bring about a Settlement in light of said letter dated 4.2.2017 so that the offer made in the said communication can be revived and it can be implemented. Mr. Trivedi, learned advocate for the Petitioner submitted that the Petitioner is ready and willing to accept the offer which was made vide communication dated 4.2.2017.
Therefore, it is clarified that it would be open to the petitioner to make such request before learned Labour Court at the time when the proceedings commence before learned Labour Court pursuant to present judgment. With aforesaid observation, the Note for speaking to minute is disposed of as withdrawn.
(K.M.THAKER, J.)
saj
Page 2 of 2
HC-NIC Page 2 of 57 Created On Sun Aug 13 06:56:53 IST 2017
2 of 57
C/SCA/11252/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11252 of 2002 With SPECIAL CIVIL APPLICATION NO. 8396 of 2004 FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR.JUSTICE K.M.THAKER 1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ?
BHAVNAGAR MUNICIPAL CORP.....Petitioner(s) Versus DHARMENDRA UDESINH ZALA....Respondent(s) Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1 MR LR PATHAN, ADVOCATE for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 09/02/2017 COMMON ORAL JUDGMENT
1. The captioned two petitions have been taken out by Bhavnagar Municipality against two separate awards Page 1 HC-NIC Page 3 of 57 Created On Sun Aug 13 06:56:53 IST 2017 3 of 57 C/SCA/11252/2002 JUDGMENT passed by the learned Labour Court at Bhavnagar in two separate reference cases.
2. In view of joint request by learned advocates for the petitioner corporation and the concerned respondents in two petitions and having regard to the submissions that similar issue is involved in both cases i.e. whether an Apprentice can be termed workman under the Industrial Disputes Act, 1947 and claim / dispute on his behalf can be raised and adjudicated under Industrial Disputes Act, and that therefore both the petitions may be heard together. Thus having regard to the submissions learned advocates for the workman and the corporation in these petitions are heard together and decided by this common order.
3. Heard Mr. Munshanw, learned advocate for the Bhavnagar Municipal Corporation in both the petitions and Mr. Pathan, learned advocate for the respondent / claimant in Special Civil Application No.11252 of 2002 and Mr. J.T. Trivedi, learned advocate for the workman in Page 2 HC-NIC Page 4 of 57 Created On Sun Aug 13 06:56:53 IST 2017 4 of 57 C/SCA/11252/2002 JUDGMENT Special Civil Application No. 8396 of 2004.
4. In SCA No. 11252 of 2002 the petitioner corporation has challenged award dated 31.1.2002 passed by learned Labour Court at Bhavnagar in Reference (LCB) No. 110 of 1997 with regard to the dispute raised by Mr. Zala. By the impugned award dated 31.1.2002 learned Labour Court directed the corporation to reinstate the claimant Mr. Zala on his original post with continuity of service and 60% backwages.
5. In Special Civil Application No. 8396 of 2004 the petitioner corporation has challenged award dated 16.2.2004 passed by learned Labour Court at Bhavnagar in Reference (LCB) No. 101 of 1999 with regard to the dispute raised by one Mr Shukla. By the impugned award dated 16.2.2004 the learned Labour Court directed the petitioner corporation to reinstate the claimant Mr. Shukla with continuity of service and 50% backwages.
6. So far as respondent - claimant in SCA No. 8396 of Page 3 HC-NIC Page 5 of 57 Created On Sun Aug 13 06:56:53 IST 2017
5 of 57 C/SCA/11252/2002 JUDGMENT 2004 is concerned the Court is informed that the said claimant died on 15.9.2013 and Court has, vide order dated 8.7.2014, allowed father of original claimant to join the proceedings and thereafter father of original claimant is impleaded as party to the proceedings.
7. So far as factual background is concerned it has emerged from the record of SCA No. 11252 of 2002 and from submissions by learned advocates for the contesting parties that upon being discontinued from engagement with the corporation Mr. Zala (hereinafter referred to as the "claimant") raised industrial dispute. Appropriate Government referred the dispute for adjudication to learned Labour Court at Bhavnagar. The said dispute came to be registered as Reference No. 110 of 1997. 7.1 In his statement of claim Mr. Zala alleged that he was appointed as Tracer / Draftsman (civil) from 18.3.1993 and that he worked as such with the corporation until 19.3.1994. He alleged that the post on which he was appointed is permanent and he used to independently Page 4 HC-NIC Page 6 of 57 Created On Sun Aug 13 06:56:53 IST 2017 6 of 57 C/SCA/11252/2002 JUDGMENT perform duty and functions assigned to him and the corporation had wrongfully designated him as Apprentice. He also alleged that subsequently the corporation terminated his service on 19.3.1994 without following any procedure prescribed by law and without payment of compensation and without granting opportunity of hearing. He further alleged that he had issued demand notice in February 1996 and demanded that he should be reinstated however the corporation did not accept his demand therefore he raised the dispute.
7.2 The municipal corporation opposed the reference and the demand raised by the claimant Mr. Zala. The corporation contended that the claimant was apprentice in Tracer / Draftsman (civil) Trade under the provisions of Apprentice Act 1961 and that upon completion of period of apprentice he was relieved. On strength of such submission the corporation contended that the claimant Mr. Zala cannot be considered workman within purview of Section 2(s) of Industrial Disputes Act or Act or 1961 Act and that the dispute raised by him cannot be termed Page 5 HC-NIC Page 7 of 57 Created On Sun Aug 13 06:56:53 IST 2017 7 of 57 C/SCA/11252/2002 JUDGMENT industrial dispute and that the reference at the behest of Mr. Zala should not be entertained. The case and defence of the corporation was that the claimant was engaged in view of the provision under Act of 1961 and he came to be relieved in accordance with provision of the Act of 1961, and that therefore there was no illegality in relieving the claimant.
8. So far as the facts in Special Civil Application No. 8396 of 2004 is concerned it has emerged from the record and from rival submission by learned advocate for the petitioner and the respondent that one Mr. B.T. Shukla (hereinafter referred to as the "petitioner or claimant") raised industrial dispute. Appropriate Government referred the dispute for adjudication to learned Labour Court at Bhavnagar. The said dispute came to be registered as Reference (LCB) No. 101 of 1999.
8.1 In his statement of claim the claimant Mr. Shukla alleged that he joined municipal corporation w.e.f. 14.3.1995 as Junior Clerk and he worked as Junior Clerk Page 6 HC-NIC Page 8 of 57 Created On Sun Aug 13 06:56:53 IST 2017 8 of 57 C/SCA/11252/2002 JUDGMENT until 19.3.1998. He alleged that he used to independently perform the duty and functions assigned to him. He further alleged that the corporation terminated his service on 20.3.1998 without following any procedure prescribed by law and without granting opportunity of hearing. He further alleged that though he worked as Junior Clerk and performed duty of Junior Clerk he was wrongfully designated as Motor Mechanic Appreciate. He also alleged that the appointment order was issued with incorrect details as regards his designation inasmuch as though he was engaged as Junior Clerk his designation and post were described as Motor Mechanic Apprentice. With such allegation he raised dispute against alleged termination of his service and he demanded that he should be reinstated in service with all benefits.
8.2 The corporation opposed the reference and the demand raised by the claimant. The corporation contended that the claimant was an Apprentice under the provisions of Apprentice Act and he was undergoing apprenticeship in trade of Motor Mechanic and upon Page 7 HC-NIC Page 9 of 57 Created On Sun Aug 13 06:56:53 IST 2017 9 of 57 C/SCA/11252/2002 JUDGMENT completion of period of apprenticeship he was relieved. The corporation denied the allegation that the claimant was engaged as Junior Clerk and / or that the claimant worked as Junior Clerk and / or that the claimant performed his duty independently and he had not undergone training or apprenticeship as Motor Mechanic. The said and other allegations were denied by the municipal corporation and the corporation also contended that the claimant cannot be considered workman within purview of Section 2(s) of the Industrial Disputes Act or 1961 Act and that the dispute raised by him cannot be termed industrial dispute and the reference at the behest of the claimant is to maintainable and should not be entertained and that since the claimant was relieved on completion of period of apprenticeship and since the claimant was relieved in accordance with the provisions of the Act of 1961 there was no illegality in relieving the claimant.
9. After the pleadings by the contesting parties in both reference cases were completed the learned Labour Court, Page 8 HC-NIC Page 10 of 57 Created On Sun Aug 13 06:56:53 IST 2017 10 of 57 C/SCA/11252/2002 JUDGMENT in both the cases, received and recorded evidence. Upon completion of stage of evidence learned Labour Court heard rival submissions / considered written submissions and thereafter, passed awards dated 31.1.2002 and 16.2.2004 in Reference Nos. 110 of 1997 and Reference No. 101 of 1999 respectively which are impugned in captioned two petitions.
10. Mr. Munshaw, learned advocate for the corporation submitted that both the claimants were engaged as apprentices under the Apprentice Act. He submitted that by virtue of provision under the Act of 1961 the corporation is obliged to engage apprentice and it was for compliance of the said obligation that two claimants were engaged as apprenticeship. So far as claimant Mr. Zala is concerned Mr. Munshaw, submitted that Mr. Zala was engaged as apprentice in the trade of Tracer / Draftsman (civil). With reference to other claimant Mr. Shukla, Mr. Munshaw, learned advocate submitted that Mr. Shukla was engaged as apprentice in trade of Motor Mechanic.
Mr. Munshaw, learned advocate submitted that the
Page 9
HC-NIC Page 11 of 57 Created On Sun Aug 13 06:56:53 IST 2017
11 of 57
C/SCA/11252/2002 JUDGMENT
learned Labour Court committed error in rejecting
corporation's submissions that the claimant's were mere Apprentice under At of 1961 and they were not workmen within the purview of Section 2(s) of I.D. Act and even if it is assumed that the contracts were not registered, then also merely because the contracts were not registered and it would not take away the character or status of apprenticeship and only on that ground the claimants' cannot claim status of workman and failure to place on record copy of the contract or copy of the registration or even failure to get contract registered with the apprentice adviser, will not take away the character or status of apprentice and the said claimants would remain apprentice in view of fact that they were engaged as apprentices and they had undergone training as apprentice with the corporation. He further submitted that the claimants were relieved on completion of respective period of training / apprenticeship and that therefore the action of relieving them upon completion of period of apprenticeship cannot be termed termination. He submitted that in view of the provision under the Act there Page 10 HC-NIC Page 12 of 57 Created On Sun Aug 13 06:56:53 IST 2017 12 of 57 C/SCA/11252/2002 JUDGMENT is no obligation for the corporation to appoint them as an employees of the corporation or to continue them. He submitted that the claimants were relieved on completion of period of apprenticeship in accordance with the provision and Scheme of the Act and that therefore it cannot be said that the corporation illegally terminated their services. Mr. Munshaw, learned advocate relied on the orders under which the said two claimants were engaged and other documents which are placed on record before the learned Labour Court to establish the fact that the claimants were engaged as apprentices and they had also acknowledged that they are engaged and working as apprentices. On the strength of the said documents Mr. Munshaw, learned advocate opposed the claim and allegations and contentions by the petitioner and submitted that the learned Labour Court failed to appreciate that there was no illegality in relieving the claimants upon completion of period of training / apprenticeship. Mr. Munshaw, learned advocate submitted that learned Labour Court has committed serious error in both awards and in passing impugned directions. Mr. Page 11 HC-NIC Page 13 of 57 Created On Sun Aug 13 06:56:53 IST 2017 13 of 57 C/SCA/11252/2002 JUDGMENT Munshaw, learned advocate also submitted that the learned Labour Court committed error in holding that the corporation failed to establish that the claimants were engaged as apprentice. According to learned advocate for the corporation, learned Labour Court also committed error in holding that the claimants were employees of the corporation and / or that they were illegally discontinued from service. He submitted that impugned orders directing corporation to reinstate the claimants with 50% backwages and 60% backwages respectively and with continuity of service are arbitrary and contrary to the provision under the Act of 1961. He also submitted that the learned Labour Court erred in considering the claimants as workmen of the corporation and treating their apprenticeship as service with the corporation and in holding that their service were illegally terminated.
11. Per contra Mr. Trivedi, learned advocate for the claimant Mr. Shukla in SCA No. 8396 of 2004 submitted, inter alia, that the claimant was engaged as Junior Clerk and during his entire tenure of about 3 years the claimant Page 12 HC-NIC Page 14 of 57 Created On Sun Aug 13 06:56:53 IST 2017 14 of 57 C/SCA/11252/2002 JUDGMENT had worked independently as Junior Clerk and that he had never undergone nor he was required to undergo any training or apprenticeship as Motor Mechanic and that he never worked in Motor Mechanic Department in any capacity. He also submitted that the claimant worked independently as Junior Clerk and he performed duty of Junior Clerk and he had not undergone any training and the corporation had wrongly shown the claimant as Motor Mechanic apprentice. He submitted that any contract of apprenticeship, as contemplated under the Act of 1961 was not entered into between the claimant and the corporation and such agreement was not registered as required by the provision under the Act of 1961 and neither original nor copy of the contract was placed on record before learned Labour Court and that therefore there was no support or basis for the corporation's claim that the claimant was engaged as apprentice in trade of Motor Mechanic. Mr. Trivedi, learned advocate further submitted that when the claimant categorically stated in his evidence that he did not undergo any training and actually he worked independently as Junior Clerk and Page 13 HC-NIC Page 15 of 57 Created On Sun Aug 13 06:56:53 IST 2017 15 of 57 C/SCA/11252/2002 JUDGMENT performed duty of Junior Clerk then there was no basis to consider the claimant as apprentice. He submitted that in reality and for all practical purposes the claimant was an employee and workman of the corporation and he was appointed in category of Junior Clerk and the corporation had raised incorrect defence on the ground that the claimant was engaged as apprentice. He submitted that the corporation failed to establish its case-explanation. He submitted that in absence of apprenticeship contract and in absence of registration of such contract the person cannot be termed or identified or recognize as apprentice and such person would remain workman / employee of the establishment. Mr. Trivedi, relied on the evidence of the claimant. He also referred to the evidence of the corporation's witness and submitted that the witness failed to establish that the claimant was engaged as apprentice. He further submitted that in the appointment letter any time limit was not mentioned i.e. period of so called apprenticeship was not mentioned and the said fact establishes that the claimant was not engaged as apprentice or for prescribed and limited period of Page 14 HC-NIC Page 16 of 57 Created On Sun Aug 13 06:56:53 IST 2017 16 of 57 C/SCA/11252/2002 JUDGMENT apprentice. He also alleged that after claimant was relieved the corporation appointed other Junior Clerk. With such allegations Mr. Trivedi, learned advocate claimed that the termination of claimant is illegal and he is entitled for relief of reinstatement and other benefits. Mr. Trivedi, so as to justify his contention placed reliance on the decision in case of U.P. State Electricity Board vs. Shiv Mohan Singh (2004) 8 SCC 402. He reiterated and emphasized the fact that the claimant Mr. Shukla died in September 2013.
11.1 So far as case of Mr. Zala i.e. petitioner in Special Civil Application No. 11252 of 2002 is concerned, Mr.Pathan, learned advocate for the said claimant submitted that he adopts submissions by Mr. Trivedi, learned advocate. Mr. Pathan, learned advocate, during his submission referred to the deposition / evidence of the claimant and he also submitted that the claimant had not undergone any training and he worked independently as tracer / draftsman (civil). He submitted that the claimant worked as tracer / draftsman (civil ) during period from Page 15 HC-NIC Page 17 of 57 Created On Sun Aug 13 06:56:53 IST 2017 17 of 57 C/SCA/11252/2002 JUDGMENT 18.3.1993 to 19.3.1994 and he performed duty as tracer / draftsman (civil) independently and he had not undergone any training or apprenticeship as tracer / draftsman or any other trade and that the corporation had wrongly described the claimant as apprentice. For other aspects Mr. Pathan, learned advocate relied on the submissions by Mr. Trivedi, learned advocate.
12. I have considered rival submissions by learned advocates for the contesting parties and I have considered the material available on record of two petitions. I have also considered awards impugned in present petitions.
13. Before proceeding further it is appropriate to mention and clarify that since complete record or reference cases was not part of the petition, the record and proceedings of Reference Ceases was called for.
14. Since crux as well as substance of the dispute and controversy raised in these two petitions are related to provision under the Act of 1961 and Act of 1947 it would Page 16 HC-NIC Page 18 of 57 Created On Sun Aug 13 06:56:53 IST 2017 18 of 57 C/SCA/11252/2002 JUDGMENT be appropriate to keep relevant provisions in focus. 14.1 The term apprentice is defined under Section 2(aa) of the Act of 1961 and the term apprenticeship training is defined under Section 2(aaa) of the Act of 1961. The terms designated trade is defined under Section 2(e) of the Act of 1961 and the term employer is defined under Section 2(f) of the Act of 1961 whereas the term worker is defined under Section 2(r) of the Act of 1961. Section 3 of the Act of 1961 prescribes qualification for being engaged as apprentice and Section 4 of the Act of 1961 makes provision with regard to contract of apprenticeship. Section 6 of the Act of 1961 prescribes period of apprenticeship and Section 7 of the Act of 1961 provides for termination of apprenticeship contract. Section 18 of the Act of 1961 is relevant and important inasmuch as it provides that the apprentices are not worker. Above mentioned provisions read thus:-
"2(aa) "apprentice" means a person who is undergoing apprenticeship training (***) in pursuance of a contract of apprenticeship.
2(aaa) "apprenticeship training" means a course of training in any industry or establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices.
2(e) "designated trade" means any trade or occupation or any subject field in engineering or technology or any vocational course which the Central Government, Page 17 HC-NIC Page 19 of 57 Created On Sun Aug 13 06:56:53 IST 2017 19 of 57 C/SCA/11252/2002 JUDGMENT after consultation with the Central Apprenticeship Council, may, by notification in the Official Gazette, specify as a designated trade for the purposes of this Act.
2(f) "employer" means any person who employs one or more other persons to do any work in an establishment for renumeration and includes any person entrusted with the supervision and control of employees in such establishment.
2(r) "worker" means any person who is employed for wages in any kind of work and who gets his wages directly from the employer but shall not include an apprentice referred to in clause(aa)
3. Qualifications for being engaged as an apprentice.- A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade, unless he-- (a) is not less than fourteen years of age, and (b) satisfies such standars of education and physical fitness as may be prescribed:
Provided that different standards may be prescribed in relation to apprenticeship training in different designated trades and for different categories of apprentices.
4. Contract of apprenticeship (1) No person shall be engaged as an apprentice to undergo apprenticeship training in a designated trade unless such person or, if he is minor, his guardian has entered into a contract of apprenticeship with the employer.
(2) The apprenticeship training shall be deemed to have commenced on the date on which the contract of apprenticeship has been entered into under sub-section (1).
(3) Every contract of apprenticeship may contain such terms and conditions as may be agreed to by the parties to the contract:
Provided that no such term or condition shall be inconsistent with any provision of this Act or any rule made thereunder.
(4) Every contract of apprenticeship entered into under sub-section (1) shall be sent by the employer within such period as may be prescribed to the Apprenticeship Adviser for registration.
(5) The Apprenticeship Adviser shall not register a contract of apprenticeship unless he is satisfied that the person described as an apprentice in the contract is qualified under this Act for being engaged as an apprentice to undergo apprenticeship training in the designated trade specified in the contract. (6) Where the Central Government, after consulting the Central Apprenticeship Council, makes any rule varying the terms and conditions of apprenticeship training of any category of apprentices undergoing such training, then, the terms and conditions of every contract of apprenticeship relating to that category of apprentices and subsisting immediately before the making of such rule shall be deemed to have been modified accordingly.]
6. Period of apprenticeship training -
The period of apprenticeship training, which shall be specified in the contract of apprenticeship, shall be as follows-
(a) In the case of [trade apprentices] who, having undergone institutional training in a school or other institution recognised by the National Council, have passed the trade tests [or examinations] conducted by [that Council or by an institution recognised by that Council], the period of apprenticeship training shall be such as may be determined by that Council;
[(aa) in case of trade apprentices who, having undergone institutional training in a school or other institution affiliated to or recognised by a Board or State Council of Technical Education or any other authority which the Central Government may, by notification in the official gazette specify in this behalf, have passed the trade tests [ or examinations] conducted by that Board or State Council or authority, the period of apprenticeship training shall be such as may be prescribed;]
(b) in the case of other 36[trade apprentices], the period of apprenticeship training shall be such as may be prescribed;
[(c) in the case of graduate or technician apprentices, [technician (vocational) apprentices]38 and the period of apprenticeship training shall be such as may be prescribed.] Page 18 HC-NIC Page 20 of 57 Created On Sun Aug 13 06:56:53 IST 2017 20 of 57 C/SCA/11252/2002 JUDGMENT
7. Termination of apprenticeship contract - (1) The contract of apprenticeship shall terminate on the expiry of the period of apprenticeship training.
(2) Either party to a contract of apprenticeship may make an application to the Apprenticeship Adviser for the termination of the contract, and when such application is made, shall send by post a copy thereto to the other party to the contract.
(3) After considering the contents of the application and the objections, if any, filed by the other party, the Apprenticeship Adviser may, by order in writing, terminate the contract, if he is satisfied that the parties to the contract or any of them have or has failed to carry out the terms and conditions of the contract and it is desirable in the interests of the parties or any of them to terminate the same:
[(4) Notwithstanding anything contained in any other provision of this Act, where a contract of apprenticeship has been terminated by the Apprenticeship Adviser before the expiry of the period of apprenticeship training and a new contract of apprenticeship is being entered into with a employer, the Apprenticeship Adviser may, if he satisfied that the contract of apprenticeship with the previous employer could not be completed because of any lapse on the part of the previous employer, permit the period of apprenticeship training already undergone by the apprentice with his previous employer to be included in the period of apprenticeship training to be undertaken with the new employer.]
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 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."
14.2 Under the Act and the rules, more particularly Section 3(1) of the Act of 1961 and the Rule 7(1) of the Apprentice Rules 1992 provision with regard to different trades and period of training are provided for in Schedule-
1. According to the entry under Schedule-1, prescribe period of training / apprenticeship for the trade of Mechanic (Motor Vehicle) is 3 years, for the trade of Mechanic (Earth Moving Machinery) is 4 years, for the trade of Mechanic (Marine Diesel) is 3 years whereas the period for the trade of Draftsman (Civil, Mechanic and Surveyor) is 3 yeas.
Page 19
HC-NIC Page 21 of 57 Created On Sun Aug 13 06:56:53 IST 2017
21 of 57
C/SCA/11252/2002 JUDGMENT
14.3 It would also be relevant and appropriate to take into account definition of the term 'workman' under Section 2(s) of the Act of 1947. The said Section 2(s) reads thus:-
"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."
14.4 In view of the facts of present case, more particularly in light of the manner in which the learned Labour Court has read and construed the said provision i.e. Section 2(s) of the I.D. Act and the manner in which the learned Labour Court applied the said provision as well as in view of the conclusion which the learned Labour Court derived by proceedings on the basis of its reading and understanding of the said provision, it is necessary and relevant to clarify that the said provision and more particularly words in the said Section 2(s) of the I.D. Act viz. "including an apprentice" cannot be read by divorcing it from or by disregarding Section 18 of the Act of 1960 i.e. Apprentice Page 20 HC-NIC Page 22 of 57 Created On Sun Aug 13 06:56:53 IST 2017 22 of 57 C/SCA/11252/2002 JUDGMENT Act, which is later - subsequent statute and the said expression "(including an apprentice)", cannot be construed to include apprentice or trainee engaged in view of the obligation cast on the establishments where the said Act of 1961 applies. for undergoing apprenticeship training in designated trade. The apprentice who stand covered under Section 2(aa) of the Act of 1961 would, by virtue of Section 18 of the Act of 1961, not fall within the purview of Section 2(s) of the Act of 1947 i.e. I.D. Act.
15. Since the Act of 1961 prescribes period of apprenticeship for every Trade the date of engagement as apprentice and date of relieving the person (on ground of completion of period of apprentice) inasmuch as the total period of claimant's engagement with the establishment would be important factor to determine nature of claimant's position or status or association with the establishment and to examine rival contentions.
16. In his statement of claim the claimant Mr. Shukla Page 21 HC-NIC Page 23 of 57 Created On Sun Aug 13 06:56:53 IST 2017 23 of 57 C/SCA/11252/2002 JUDGMENT alleged that he was appointed as Junior Clerk (in Garage Department) on 14.3.1995. However, from the record it appears that the claimant did not place on record any appointment order much less appointment order dated 14.3.1995 appointing the claimant as Junior Clerk. Such order is not placed on record.
16.1 At the same time it is also relevant to note that the claimant alleged that the corporation had issued appointment order describing his appointment as that of Apprentice in trade of Motor Mechanic.
16.2 On the other hand the opponent corporation placed on record order dated 23.2.1995. On reading the said order it emerges that the claimant had submitted application dated 7.3.1994 for being engaged as apprentice and after considering said application the corporation engaged claimant Mr. Shukla as "Apprentice". The said order also informed that he would be paid stipend in accordance with the Apprentice Act. The said order supports the case put up by the corporation. On Page 22 HC-NIC Page 24 of 57 Created On Sun Aug 13 06:56:53 IST 2017 24 of 57 C/SCA/11252/2002 JUDGMENT examination of the record and proceedings it emerged that the above referred letter - order dated 23.2.1995 (which was addressed by the corporation to present respondent Mr. B.T. Shukla) was placed on record of learned Labour Court below list of document dated 10.11.2000.
16.3 Another document which is found on record of learned Labour Court is joining report dated 9.3.1995, which was submitted by the claimant to the legal-cum- labour officer of the Corporation. The said joining report bears signature of the claimant and subject of the joining report gives out that it was "joining report as an Apprentice". The description of the trade i.e. Driver-cum- Fitter is scrolled out and Motor Mechanic is written in hand-writing. The joining report does not contain any reference about Junior Clerk. Above mentioned letter dated 23.2.1995 also does not contain any reference of appointment as Junior Clerk.
16.4 Third document which is on record of learned Labour Page 23 HC-NIC Page 25 of 57 Created On Sun Aug 13 06:56:53 IST 2017 25 of 57 C/SCA/11252/2002 JUDGMENT Court (part of Record and Proceedings) is a note dated 9.3.1995 which bears signature of one Mr.Mandaliya for Chief Transport Officer of the Corporation as well as original claimant. By the said note, the claimant was directed to report to Civil Surgeon for medical examination and in the said document, the claimant's engagement is described as "Motor Mechanic Apprentice" in Bus Garage. 16.5 Fourth document on record of the learned Labour Court (part of Record and Proceedings) is another note dated 9.3.1995, which is addressed to the Transport Manager whereby Transport Manager was informed and advised that Mr.Shukla has submitted joining report dated 9.3.1995 as apprentice in Motor Mechanic Trade and that, therefore, his attendance should be marked in the Bus Garage Department. The said note dated 9.3.1995 also bears signature of Mr.Shukla.
16.6 Fifth document on record before learned Labour Court (part of Record and Proceedings) is hand-written note addressed to the Transport Manager. The Note is Page 24 HC-NIC Page 26 of 57 Created On Sun Aug 13 06:56:53 IST 2017 26 of 57 C/SCA/11252/2002 JUDGMENT signed by Mr.Shukla wherein he has mentioned that he had reported as "Apprentice" in Motor Mechanical Trade on 20.3.1995.
16.7 Above mentioned documents bear signature of Mr.Shukla and the said documents give out that Mr.Shukla was aware about and the claimant had mentioned that he was engaged as apprentice in Motor Mechanical Trade and that he had reported for duty as Apprentice on 20.3.1995. 16.8 Another important document is available on record (record and proceedings) of Reference No. 101 of 1994. It is a communication / application dated 27.4.1995 submitted by original claimant Mr. B.T. Shukla to the Deputy Commissioner of the Corporation. By virtue of said application dated 24.7.1995 the claimant himself requested that he is working as apprentice in mechanical trade in shift-I from 16.3.1995 and that due to family circumstances and personal reason he may be allowed to change the trade and instead of mechanical trade he may be permitted to shift to administrative branch. In the said communication dated 27.4.1995 the applicant has made Page 25 HC-NIC Page 27 of 57 Created On Sun Aug 13 06:56:53 IST 2017 27 of 57 C/SCA/11252/2002 JUDGMENT specific note wherein also he mentioned that he is working as apprentice in mechanical trade. The said application dated 27.4.1995 signed and submitted by the claimant Mr. Shukla belies the claimant's allegations and contention inasmuch as in his application the claimant Mr. Shukla himself mentioned that since last 1 ½ months he was engaged as apprentice in Mechanical Trade and that his request for shifting trade may be considered, so that he can work in any other administrative department. 16.9 From above mentioned documents it comes out that the claimant himself mentioned at different stage and in different documents e.g. in his application for being selected / engaged (as apprentice) and in his joining report and in abovereferred application dated 27.4.1995 that he was an Apprentice in mechanical trade. 16.10 In addition to abovementioned documents there is another document on record of learned Labour Court (R & P) which is signed by Labour Officer of the corporation and is addressed to Transport Manager. By the said intra Page 26 HC-NIC Page 28 of 57 Created On Sun Aug 13 06:56:53 IST 2017 28 of 57 C/SCA/11252/2002 JUDGMENT department communication, the Labour Officer seems to have informed the transport manager that the apprenticeship period of 6 persons would expire on the dates mentioned correspondingly against names of the said persons and therefore the said 6 persons may be relieved accordingly on completion of apprenticeship period. One of the said 6 persons is the claimant Mr. Shukla i.e. present respondent. According to the said communication the apprenticeship period was to expire on 19.3.1998 and the transport manager was informed to relieve the claimants accordingly.
16.11 Another document which is available on record (R & P) of learned Labour Court is an intra department communication dated 20.11.1998 whereby the Labour Officer appears to have inquired from the transport manager as to whether Mr. Shukla i.e. present claimant who was to be relieved w.e.f. 19.3.1998 on completion of his apprenticeship was actually relieved on the said date or not. On the very same document the transport manager seems to have placed his remarks informing Labour Page 27 HC-NIC Page 29 of 57 Created On Sun Aug 13 06:56:53 IST 2017 29 of 57 C/SCA/11252/2002 JUDGMENT Department that the said Mr. Shukla was relieved on 19.9.1998.
17. On conjoint reading of the said documents it comes out that all documents are contemporaneous documents and the said documents) more particularly the joining report submitted by Mr. Shukla and the relieving order, indicate that the claimant Mr. Shukla was engaged as apprentice in trade of Motor Mechanic and that he had reported as apprentice in trade of Motor Mechanic on 20.3.1995 and the period of apprenticeship expired on 19.3.1998 and accordingly he was relieved on 19.3.1998. The said documents and details establish that the said period matches with the period of apprenticeship for trade of motor mechanic.
17.1 The claimant Mr. Shukla, despite above mentioned documents which bear his own signature, claimed that he was engaged as and he worked as Junior Clerk and he was not engaged as apprentice and / or he never worked as or was never imparted training as apprentice in Motor Page 28 HC-NIC Page 30 of 57 Created On Sun Aug 13 06:56:54 IST 2017 30 of 57 C/SCA/11252/2002 JUDGMENT Mechanic Trade.
17.2 It is pertinent that at any place not even in his deposition, the claimant ever disputed abovementioned documents and / or his signatures on the documents i.e. application or joining report etc. (which reflect his signature). The joining report and / or the application seeking change of trade, his signatures and other documents have not been disputed by the claimant Mr. Shukla even before this Court i.e. either in reply to the petition or during the hearing of the petition. 17.3 Without disputing the said documents and / or without disputing his signature on the joining report and / or documents and / or application, the claimant would contend that he was not engaged as apprentice but he recruited and appointed as Junior Clerk.
17.4 On this count it is pertinent that before the learned Labour Court or even before this Court the claimant has not placed appointment order which could establish that Page 29 HC-NIC Page 31 of 57 Created On Sun Aug 13 06:56:54 IST 2017 31 of 57 C/SCA/11252/2002 JUDGMENT he was recruited and appointed as Junior Clerk and was not an apprentice. Whereas there is more than ample material on record to support the claim of the corporation. However learned Labour Court ignored all documents and concentrated only on the fact that the corporation failed to place on record the apprenticeship agreement / contract and / or evidence about registration of the contract / agreement and that when contract is not executed and / or when the contract is not registered with the apprenticeship adviser, the concerned persons cannot be considered apprentice appointed under the Act of 1961.
18. Now so far as case of Mr. Zala, the claimant in the said Reference Case No. 110 of 1997 is concerned, it is relevant to note that when the documents available on record before learned Labour Court (i.e. R & P of reference case no. 110 of 1997) are examined it comes out that a document dated 3.3.1993 is available on record. It is a communication from the legal-cum-Labour officer and is addressed to the claimant. By the said letter the claimant was informed that since he passed I.T.I. examination in Page 30 HC-NIC Page 32 of 57 Created On Sun Aug 13 06:56:54 IST 2017 32 of 57 C/SCA/11252/2002 JUDGMENT trade of draftsman (civil) his name is sponsored by the apprentice adviser and the Principle of I.T.I. for engagement as "Apprentice" in trade of draftsman (civil) and that therefore he should remain present with relevant certificates, mark-sheets etc. in the office of the corporation.
18.1 There is another document on record which is application dated 6.3.1993 submitted by the claimant offering himself for being taken up as "Apprentice" in trade of draftsman (civil). The application reflects signature of the claimant.
18.2 Third document which is available on record is office order dated 12.3.1993 which is forwarded by the office of commissioner to the claimant informing the applicant that he has been selected for "Apprenticeship" in trade of draftsman (civil) and that he should report on or before 20.3.1993.
18.3 Fourth document which is available on record is Page 31 HC-NIC Page 33 of 57 Created On Sun Aug 13 06:56:54 IST 2017 33 of 57 C/SCA/11252/2002 JUDGMENT joining report submitted by the claimant. The said joining report is dated 18.3.1993 and it bears signature of the claimant and it gives out that he reported as Apprentice in pursuance of the office order No. 398/2012 dated 12.3.1993 and that his joining report may be accepted. 18.4 Fifth document available on record is communication dated 8.4.1993 by Chief Personal Officer and it is addressed to Civil Surgeon. In the said communication the Civil Surgeon was requested to conduct medical test of the claimant who was engaged as apprentice in trade of draftsman (civil).
18.5 Sixth document which is available on record is more important document inasmuch as the said document is the apprenticeship contract / agreement which is signed on behalf of the commissioner of the corporation and the claimant in his capacity as apprentice as well as by one Mr. Lalubha K. Gohil, claimant's surety. The said document bears signature of two witnesses as well as signature of Mr. V.S. Bhil, Assistant Apprenticeship Adviser.
Page 32
HC-NIC Page 34 of 57 Created On Sun Aug 13 06:56:54 IST 2017
34 of 57
C/SCA/11252/2002 JUDGMENT
18.6 Thus, duly signed and executed and registered apprenticeship contract is also available on record. The document is registered at registration number 56007/E/FAB/CS/211001 on 28.7.1993.
18.7 Seventh document which is available on record is communication dated 30.10.1993 which is addressed by the legal-cum-labour officer to the claimant whereby the claimant was relieved for certain training during period from 1.11.1993 to 6.1.1994 with the direction to report at the place of training from 7 a.m. to 10 a.m. and 5 p.m. to 8 p.m. (except on Sunday and holidays) and on completion of the training he should return back to the corporation with attendance certificate from competent officer. 18.8 The 8th document dated 5.3.1994 which is on record is communication from Labour Officer to Building Engineer is also available on record. The said intra department communication gives out that the labour officer had informed the building engineer that the apprenticeship Page 33 HC-NIC Page 35 of 57 Created On Sun Aug 13 06:56:54 IST 2017 35 of 57 C/SCA/11252/2002 JUDGMENT period of the claimant will expire on 17.3.1994 and that therefore he should be relieved on 17.3.1994. Labour Officer also mentioned in the communication that in case of default the concerned officer will be personally responsible.
18.9 Besides above mentioned document there is another document available on record which is communication dated 5.3.1994 by the Building Department of the corporation. By the said communication dated 5.3.1994 the building engineer informed the claimant that his apprenticeship period expires on 17.3.1994 and he will stand relieved after office hours on 17.3.1994. 18.10 It is pertinent that on 19.3.1994 the legal - cum labour Officer issued certificate to the claimant certifying that he had undergone apprenticeship in trade of draftsman (civil) during period from 18.3.1993 to 17.3.1994 and that training was imparted under provision of Act of 1961. The said document is also available on record.
Page 34
HC-NIC Page 36 of 57 Created On Sun Aug 13 06:56:54 IST 2017
36 of 57
C/SCA/11252/2002 JUDGMENT
19. When the facts of case of Mr. Zala and the facts of case of Mr. Shukla are compared it comes out that there are several documents in both cases which include their applications and joining report/s etc. which are written and / or signed by the claimants themselves and said documents collectively demonstrate that the claimants were engaged as "Apprentice". The claimants would, however, rely on their deposition wherein they alleged that any training was not imparted and they were working independently and rely on the reply given by the corporation's witness during his cross examination. The claimants, however, could not wriggle out of the documents and the purport and effect of the documents and the fact that the documents bear their signatures and neither the documents nor the signatures have ever been disputed.
20. In this background, profitable reference can be made to the decision by Hon'ble Apex Court in case of U.P.State Electricity Board v. Shiv Mohan Singh & Anr. [(2004) 8 SCC Page 35 HC-NIC Page 37 of 57 Created On Sun Aug 13 06:56:54 IST 2017 37 of 57 C/SCA/11252/2002 JUDGMENT 402]. In the said decision, Hon'ble Apex Court has observed, inter alia, that:-
"43. Therefore, a combined reading of the Sections as well as Rules makes 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 and 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 and servant or employer and employee.
44. In this background, we will examine the position vis-a-vis the U.P. Industrial Disputes Act, 1947 and Industrial Disputes Act, 1947 and the Indian Boilers Act, 1923. In this connection, a reference may be made to Section 2(z) of the U.P. Industrial Disputes Act, 1947. This definition of the workman is pari materia with that of the Industrial Disputes Act, Section 2(s). Section 2(z) of the U.P. Industrial Disputes Act, 1947 which reads as under:
"'workman' means any person ( including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed 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 Army Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act,1934; 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 five 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."
45. Since the definition of 'workman' as given in Section 2(z) of the U.P. Industrial Disputes Act, 1947 is pari materia with that of Section 2(s) of the Industrial Disputes Act, 1947, therefore, no useful purpose would be served by reproducing the definition of 'workman' as given in Section 2(s) of the Industrial Disputes Act, 1947. Our attention was also invited to Section 6-N of the Industrial Disputes Act, 1947, which lays down the conditions precedent to retrenchment of workmen. Section 6-N of the U.P. Industrial Disputes Act, 1947 reads as under:
"6N. Conditions precedent to retrenchment of workmen.- 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-
(a) 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 notice wages for the period of the notice:
Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year Page 36 HC-NIC Page 38 of 57 Created On Sun Aug 13 06:56:54 IST 2017 38 of 57 C/SCA/11252/2002 JUDGMENT of service or any part thereof in excess of six months, and
(c) notice in the prescribed manner is served on the State Government."
46. It is pari materia with that of Section 25-F of the Industrial Disputes Act, 1947. Therefore, no useful purpose would be served by reproducing that definition.
47. In this connection, reference may be made to the definition of 'Industrial Dispute' as defined in Section 2(l) of the U.P. Industrial Disputes Act, 1947 which reads as under :
"(l) 'Industrial Dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the term of employment or with the conditions of labour, or any person; but does not include an industrial dispute concerning-
(i) any industry carried on by or under the authority of the Central Government or by a Railway Company, or
(ii) such controlled industry as may be specified in this behalf by Central Government, or
(iii) banking and insurance companies as defined in the Industrial Disputes Act, 1947, or
(iv) a mine or an oil-field;"
48. This definition of 'Industrial Dispute' is pari materia with that of the Industrial Disputes Act, 1947 as defined in Section 2(k) but the definition of Section 2(k) is not as wide as that of Section 2(l) of the U.P. Industrial Disputes Act, 1947. Therefore, the said definition is reproduced as under:
"(k) "industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"
49. Similarly, our attention was also drawn to some of the provisions of the Indian Boilers Act, 1923 which lays down as to how the employer should maintain the boilers, and prohibits using un-certificated boiler. It is required to obtain necessary certification. It also deals with the penalties for breach of the conditions for maintenance of the boilers.
50.In the background of the provisions of the four enactments, the main question which has been agitated by learned counsel for the appellant is that if an incumbent is appointed as an apprentice/trainee and even if a contract of such apprenticeship has not been registered, then also he does not cease to be an apprentice and his position does not become that of a workman. As against this, learned counsel for the respondents has strenuously urged before us that non-registration of the contract of apprenticeship under sub-section (4) of Section 4 of the Apprentices Act, 1961, with the Apprenticeship Adviser would result in the breach of the contract and the status of an incumbent is changed from the apprentice to that of a workman. Therefore, the question arose that whether registration of the contract under sub-section (4) of Section 4 is mandatory or directory and in case, it is a mandatory, then what is the effect, if it is directory, then what is the effect thereof. In this connection, it was submitted that the word 'shall' appearing in sub-section (4) of Section 4 means the registration of the contract is mandatory and if it is not registered then the contract ceases and the incumbent becomes workman. In this connection reference was made to a decision in the case of P.T. Rajan v. T.P.M. Sahir and Ors., reported in (2003) 8 SCC 498. It was also submitted that the Apprentices Act, 1961 is a welfare legislation and it should be construed liberally for the benefit of the workman. In this connection, our attention was drawn to the decisions of this Court in the cases of Air India Statutory Corporation and Ors. v. United Labour Union and Ors. and Secretary, H.S.E.B. v. Suresh and Ors.; reported in (1997) 9 SCC 377 and (1999) 3 SCC 601. It was also submitted that Page 37 HC-NIC Page 39 of 57 Created On Sun Aug 13 06:56:54 IST 2017 39 of 57 C/SCA/11252/2002 JUDGMENT the nature of work and the nomenclature of the post is not decisive. In this connection, our attention was also drawn to a decision of this Court in the case of Surya Prasad Singh and Anr. v. Labour Court II, Kanpur and Anr., reported in 1995 Supp(4) SCC 38.
51. Therefore, now going back to the basic question that in the light of the aforesaid statutory provisions whether non-registration of the contract can render the contract void or illegal and what is the result thereof. From the scheme of things it is more than apparent that the Apprentices Act, 1961 is a complete Code in itself and it lays down the conditions of the apprentices, what shall be their tenure, what shall be their terms and conditions and what are their obligations and what are the obligations of the employer. It also lays down that the apprentices are trainees and not workmen and if any dispute arises then the settlement has to be done by the Apprenticeship Adviser as per Section 20 of the Apprentices Act, 1961 and his decision thereof is final. Now, under the scheme of these things, it clearly shows that the nature and character of the apprentice is nothing but that of a trainee and he is supposed to enter into a contract and by virtue of that contract he is to serve for a fixed period on a fixed stipend. This will not change the character of the apprentice to that of a workman under the employer where he is undergoing the apprentice training. Sub-section (4) of Section 4 only lays down that such contract should be registered with the Apprenticeship Adviser. But by non-registration of the contract, the position of the apprentice is not changed to that of a workman. It is more than clear from the scheme of the Act, the apprentice is recruited for the purpose of training as defined in Section 2(aa) of the Apprentices Act, 1961, that an apprentice is a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship and the apprenticeship training has been defined under Section 2(aaa). That clearly speaks that an apprentice is to undergo apprenticeship training in any industry or establishment under the employer in pursuance of the contract and in terms of the conditions pertaining to that particular trade. Section 6 lays down that what shall be the period of training and Section 7 very clearly shows that the contract of apprenticeship shall terminate on the expiry of the period of apprenticeship training. Therefore, it is more than clear that the nature and character of the apprentice is that of a trainee only and on the expiry of the training there is no corresponding obligation on the part of the employer to employ him which is also very clear from the provisions of Section 7 that the apprenticeship training shall terminate on the expiry of the period of training. It further makes clear that by virtue of Section 18 that the apprentice trainees are not workers. It clearly lays down that if an apprentice trainee is undergoing apprenticeship training in a designated trade in an establishment, he shall be a trainee and not a worker. It further contemplates that the provisions of labour laws shall not apply in relation to such apprentice. In this connection reference to definition of workman given in Section 2(r) also emphasises that it will not include apprentice. Section 20 also lays down that how a dispute arising under this Apprentices Act, 1961 can be settled. The authority for resolving such a dispute has been given to the Apprenticeship Adviser. Therefore, any dispute which arises with the apprentice and the employer then remedy has been provided under this Act and not by way of resorting to the Labour Court. Therefore, throughout the Act stress has been laid that the apprentices are never being treated as workers. Simply because the contract has not been registered with the Apprenticeship Adviser, that will not change the nature and character of the apprentices. It is true that sub- section (4) of Section 4 lays down that the contract of apprenticeship should be registered with the Apprenticeship Adviser so that the Apprenticeship Adviser can monitor and keep a record thereof. Just because the contract of apprenticeship is not registered that will not render the contract as invalid resulting in change of status of an apprentice to that of a workman. Section 21 further lays down that after the completion of the training of the apprentice, an incumbent will have to appear for a test to be conducted by the National Council to determine his proficiency in the designated trade in which he has undergone his apprenticeship training. Therefore, had there been an intention of the Legislature to confer them the status of a workman then all the provisions would not have been warranted at all. Section 22 makes it abundantly clear that at the end of the apprenticeship training, it is not obligatory on the part of the employer to offer an employment to an apprentice who has completed the Page 38 HC-NIC Page 40 of 57 Created On Sun Aug 13 06:56:54 IST 2017 40 of 57 C/SCA/11252/2002 JUDGMENT period of apprenticeship . It is only if the terms of the contract of the apprenticeship lays down a condition that on successful completion of an apprenticeship training, an employer will offer him an employment then it is obligatory on the part of the employer to do so. If there is no such condition stipulated in the apprenticeship contract then the employer cannot be compelled to offer employment to such apprentice. At the same time, it is not obligatory on the part of apprentice to serve that employer if there is no such stipulation to this effect. So it is mutual thing and it depends on the terms of contract. The survey of all these provisions of the Acts and the Rules as mentioned above, makes it clear that the character and status of apprentice remains the same and he does not become workman and labour laws are not attracted.
52. Now, coming to the question that the expression appearing in sub- section (4) of Section 4, "shall" should be interpreted as mandatory. It depends upon the context in which such expression appears. In order to interpret the word "shall" appearing in any enactment one has to see the context in which it appears and the effect thereof. We have already quoted the Introduction, Statement of Objects and Reasons above. The Objects and Reasons reveal that the Act was enacted for the purpose of recruiting the apprentices for developing a strong industrial base. In order to have a strong industrial base, trained man power is essential and for that purpose the Act was enacted so that for the industrial growth in the country the trained man power is made easily available. The purpose is to train the people for employing them in the industries, it was never the intention that those trained candidates automatically become the workmen. Though training was imparted by Private and Public Sector but industry in general did not fully organize such programme. Therefore, the intention of the Act is basically to recruit and train person capable of being employed in the industries. Apart from the Statement of Objects and Reasons we have already reproduced above relevant provisions of the Act which clearly contemplates that such trained persons shall not fall in the definition of the workmen as the definition of workmen specifically excludes the apprentices as defined in Section 2 (r). The definition makes it clear that they are apprentices for a purpose undergoing a training and in Section 18 it has been clearly mentioned that they will not be treated as a workmen and they will be treated as a trainee and no labour laws will apply in relation to such apprentices. Viewing the expression "shall" in this context, cannot be construed as a mandatory. Sub-section (4) of Section 4 only says that the contract of apprenticeship should be forwarded to the Adviser that is purely ministerial/administrative act so that a proper record is maintained by the Apprenticeship Adviser. Nothing turns beyond this. It is purely administrative act and not forwarding contract of the apprenticeship to the Apprenticeship Adviser will not change the character of the incumbent and it will not render the contract of apprenticeship invalid or void. If the contract of apprenticeship is to be treated as a mandatory and contract is not sent then the effect will be that the apprentice will not be entitled to any benefit flowing from the Act. In fact, by treating the expression "shall" here as a mandatory it will be more counter productive to the interest of the trainees rather than for their benefit. The employer can take a shelter under the plea that since the contract of the employment has not been registered with the Apprenticeship Adviser, therefore, he is not under any obligation to pay stipend to the apprentice trainees and he is not under an obligation to impart the training to him also. Had that been the intention of the Legislature then they would have provided the necessary penalty for breach of the non-registration of the contract of apprenticeship. But that has not been done so because under Section 30 of the Apprentices Act, 1961 any offence arising under this Act has been penalized, like apprentice who is not qualified but he has been engaged or fails to carry out the terms and conditions of contract of apprenticeship or contravenes the provisions of the Act relating to number of apprentices or any information required to be furnished or the apprentice has been allowed to work overtime without approval of the Apprenticeship Adviser or employs an apprentice on any work which is not connected with his training or makes any payment to apprentice on the basis of piece work or requires an apprentice to take part in any output bonus or scheme. These breaches have been termed as offences and have been made punishable. But the non-registration of it has not been construed to be an Page 39 HC-NIC Page 41 of 57 Created On Sun Aug 13 06:56:54 IST 2017 41 of 57 C/SCA/11252/2002 JUDGMENT offence so as to expose the employer for any penalty. Therefore, the expression "shall" appearing in sub-section (4) of Section 4 does not appear to be mandatory. Had that to be construed to be mandatory it will be doing a great violence to the intention of the Act as well as to the interest of the apprentices/trainees. If the non-registration is to result in the breach of a contract resulting in to invalidity and unenforceable then in that case it will be oppressive to the interest of the apprentices as the employer can get away by seeking a declaration that the apprentice contract was not registered, therefore, he is not under an obligation to abide by the terms of the contract. Therefore, viewing the expression "shall" in this context, it cannot be construed to be mandatory and it is directory. In this connection, reference may be made to the decision of this Court in the case of P.T. Rajan v. T.P.M. Sahir and Ors. (2003) 8 SCC 498. Their Lordships observed that context, purport and object of the statute is to be ascertained that whether "shall" to be construed as a mandatory or directory. In that context, their Lordships referred to an earlier catena of decisions and observed "where a statutory functionary is asked to perform a statutory duty between time prescribed same would be directory and not mandatory. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall" may not be held to be mandatory if thereby no prejudice is caused. The Court cannot supply casus omissus."
Their Lordships have further observed as follows:
"A statute must be read in the text and context thereof. Whether statute is a directory or mandatory would not be dependent on the user of the word "shall"
or "may". Such a question must be posed and answered having regard to the purpose and object it seeks to achieve. The construction of statute will depend on the purport and object for which the same had been used."
53. Therefore, viewing the provision of this Act in the light of the discussion made above, we are of the opinion that the expression "shall" appearing in sub- section (4) of Section 4 shall be construed directory and not mandatory.
54. It was also submitted by the learned counsel for the appellants that this is a labour legislation which should be construed liberally and in that context our attention has been invited to a decision of this Court in Secretary, HSEB v. Suresh and Ors. (1999) 3 SCC 601. In this case, their Lordships held that Court must decide in interest of the public inspired by principle of justice, equity and good conscience. Similarly, in the case of Air India Statutory Corpn.and Ors. v. United Labour Union and Ors. (1997) 9 SCC 377 (though this case is no more a good law with regard to the Contract Labour (Regulation and Abolition) Act, 1970 because subsequent decision of the Constitution Bench has reversed this decision in the case of Steel Authority of India Ltd. v. National Union Watrerfront Workers, reported in (2001) 7 SCC 1. But this case has been cited in the context of the interpretation of statute that how social welfare legislation should be interpreted. In that context their Lordships have observed that such a social legislation providing for a economic empowerment to workers and poor class a provision should be considered in the light of the public law principles not of private or a common laws. So far as the philosophy behind construing a social legislation is concerned, there is no two opinion, social legislation are primarily meant for welfare of the particular section of the society and it should be construed liberally so as to advance the cause of the public at large. But the question is in the present case whether the expression "shall" should be read mandatory so as to advance the cause of the apprentice or not. In our opinion, viewing from social legislation point of view the word "shall" appearing in sub- section (4) of Section 4 should be construed as directory because it will be for the benefit of the apprentice trainee otherwise it will be oppressive to the welfare of the apprentice as the employer can get away by not getting the contract of apprentice registered, seeking a declaration that this is a unregistered document and all benefits flowing from the Act cannot be enforced against him.
56. It is also 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 Page 40 HC-NIC Page 42 of 57 Created On Sun Aug 13 06:56:54 IST 2017 42 of 57 C/SCA/11252/2002 JUDGMENT 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 labour law shall not apply or in relation to such apprentices". Therefore, reading of definition of apprentice in Sections 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 apprentices and it precludes the application of any other labour laws, i.e. U.P. Industrial Disputes Act and 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.
101. If a contract of apprenticeship is entered into; the violation of the terms and conditions thereof, in our opinion, although may lead the penal consequences but the same would not render the contract of apprenticeship void or illegal.
102. In the event, the Apprenticeship Advisor obtains informations about such violations, he is entitled to take suitable steps in that behalf under the Act or the rules but he has not been conferred with any power to declare such contract of apprenticeship to be ipso facto void ab initio. Section 20 also provides resolution of disputes between an apprentice and the employer arising out of the contract of apprenticeship which shall be referred to the Apprenticeship Advisor for decision. While resolving a conflict by and between an employer and an apprentice under Section 20 of the said Act, indisputably he can issue directions which the employer will have to comply with and on his failure to do so, he would run the risk of being prosecuted in terms of Section 30 of the Act, but even in such a situation he cannot bring an end to the contract. The contract of apprenticeship like any other contract can be brought to an end by the parties thereto.
103. Once a contract of apprenticeship commences, the same cannot be brought to an end except in accordance with law. By reason of non-registration of the contract of apprenticeship, the same does not become a nullity. If it is to be held that by reason of non-registration of such contract of apprenticeship the contract itself comes to an end, it would be detrimental to the interest of the apprentices, which would frustrate the object of the Act.
104. The definition of 'Apprentice' nowhere states that an apprentice with a view to obtain the benefits of the said Act must also be registered. Section 18 of the said Act says that an apprentice shall not be a worker. It does not say that an unregistered apprentice shall be a worker.
105. Only because the expression "shall" has been employed in sub-section (4) of Section 4, the same may not be held to be imperative in character having regard to the fact that not only, as noticed hereinbefore, a contract of apprenticeship commences but also in view of the fact that an application for registration of apprenticeship contract is required to be made within a period of three months in terms of Rule 4B of the Apprenticeship Rules, 1962. The Act nowhere provides for the consequences of non-registration.
106. It is not in dispute that the list of apprentices used to be sent by the Apprenticeship Adviser himself and, thus, presumably the preliminary scrutiny in that regard had been made by the said authority. If in a given case, as noticed hereinbefore, the employer fails to get the contract of apprenticeship registered and/or fails to carry on his obligations in terms of Section 11 of the Act, he faces penal consequences in terms of Section 31 of the Act. The employer, furthermore, is liable to pay compensation for termination of apprenticeship as would appear from Rule 6 of the Apprenticeship Rules, 1962, which reads thus:
"Compensation for termination of apprenticeship - Whereas the contract of apprenticeship is terminated through failure on the part of any employer in Page 41 HC-NIC Page 43 of 57 Created On Sun Aug 13 06:56:54 IST 2017 43 of 57 C/SCA/11252/2002 JUDGMENT carrying out the terms and conditions thereof, such employer shall be liable to pay the apprentice compensation of an amount equivalent to is three months' last drawn stipend; and when the said termination is due to failure on the part of an apprentice in the above manner, then a training cost of an amount equivalent to his three months last drawn stipend shall be made recoverable from such apprentice or from his guardian in case he is minor."
107. No provision of the Act or the rules framed thereunder was brought to our notice to show that non-registration of the contract of apprenticeship or violation and/or neglect on the part of the employer to comply with the other provisions of the Act it would result in invalidation of the contract. An apprentice remains an apprentice having regard to the definition contained in Section 2(aa) of the Act and continues to work in the said capacity. His status does not change to that of a workman only because the contract has not been registered or the employer has not carried out his obligations thereunder. If such a construction is placed, an apprentice may be held to have ceased to be an apprentice if he himself defaults in performing his obligations under the contract.
110. Sub-section (4) of Section 4 of the said Act can also be held to be directory having regard to the rule laid down in Heydon's case. [(1584) 3 Co.Rep 7a]. [See Ashok Leyland Ltd. v. State of Tamil Nadu and Anr., (2004) 3 SCC 1 and Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. (2004) 1 SCC 702].
111. The mischief rule enables the court to take into consideration the following four factors for construing an Act:
(i) What was the law before the making of the Act,
(ii) What was the mischief or defect for which the law did not provide,
(iii) What is the remedy that the Act has provided, and
(iv) What is the reason of the remedy.
110. The rule then directs that the Courts must adopt that construction which "shall suppress the mischief and advance the remedy".
112. Prior to 1973, the provision for registration was mandatory in character. Only having regard to the delay which has occasioned for registration of contract of apprenticeship, the said amendment had been brought about; pursuant whereto or in furtherance whereof the contract of apprenticeship commences. If the purpose of amendment was to make the contract workable even without registration, we fail to see any reason as to why the provision should be construed as imperative in character so as to render a contract of apprenticeship a nullity which is possible to be avoided and the object thereof can be achieved by taking recourse to the penal provisions." 20.1 What emerges from above quoted observations by Hon'ble Apex Court is that, merely because the apprenticeship contract is not duly registered with apprenticeship adviser, the status of an apprentice engaged under the provisions of Apprenticeship Act would not change automatically and it would not be converted into status of workman under the Industrial Disputes Act, i.e. a workman other than an apprentice under the Page 42 HC-NIC Page 44 of 57 Created On Sun Aug 13 06:56:54 IST 2017 44 of 57 C/SCA/11252/2002 JUDGMENT Apprenticeship Act. In the said decision, Hon'ble Apex Court observed that, once an incumbent is appointed as an apprentice under the Act of 1961 for Apprenticeship in any of the scheduled Trades, then he will continue to be an apprentice unless a formal order of appointment as employee of the establishment is issued. In present case it is undisputed fact that any order appointing the claimants as employee of the corporation are not passed and not placed on record.
21. When the facts of present case and the evidence available on record of both reference cases are examined in light of above mentioned decision by Apex Court it comes out that there should not be hesitation or doubt in holding that the claimants were engaged as "Apprentice" under the provisions of the Act of 1961/ 21.1 However, from impugned award, it emerges that the learned Labour Court has not taken into account the legal position which emerge from conjoint reading of above quoted provisions which is explained by Apex Court. In the Page 43 HC-NIC Page 45 of 57 Created On Sun Aug 13 06:56:54 IST 2017 45 of 57 C/SCA/11252/2002 JUDGMENT impugned awards the learned Labour Court has, unfortunately, proceeded on the premise that non- registration of the contract, is fatal. The learned Labour Court has also proceeded on the premise that since the corporation failed to place on record apprenticeship contract the case of the corporation that claimant was engaged as apprentice under the Act of 1961 cannot be accepted.
21.2 The learned Labour Court, in this context, failed to take into account, in right and proper perspective, above discussed documents which include the joining report and other applications submitted by the claimants wherein the claimant themselves accepted that they were engaged as apprentice and even in the joining report, the claimants mentioned that they are engaged as apprentice. The learned Court seems to have preferred oral evidence over documentary evidence (though the oral evidence runs opposite to the documents) and the learned Court preferred to ignore the documents and their meaning and effect. This irregularity and error led the learned Court to Page 44 HC-NIC Page 46 of 57 Created On Sun Aug 13 06:56:54 IST 2017 46 of 57 C/SCA/11252/2002 JUDGMENT erroneous conclusion. It is true that the witness of the corporation appears to have stated in his deposition that he is not aware as to whether the contract was executed or not, however, the learned Tribunal could not have ignored the documents (which are referred to hereinabove in present order) including relevant and important fact that the period of engagement of the claimant matches with the apprenticeship period prescribed in respect of the trade in which the claimants were engaged.
21.3 It is pertinent that in the case of Mr. Zala [Reference (LCB) No.110 of 1997] in paragraph No.7 of the award, the learned Labour Court has observed that the claimant was undisputedly engaged as apprentice. However, thereafter, the learned Labour Court allowed itself to proceed on misconceived route, inasmuch as the learned Labour Court appears to have taken into account or given more importance to contrary oral evidence of the witness (as against the documentary evidence) inasmuch as the learned Court preferred statements of witness which run contrary to the plain purport of documents. Further, the Page 45 HC-NIC Page 47 of 57 Created On Sun Aug 13 06:56:54 IST 2017 47 of 57 C/SCA/11252/2002 JUDGMENT learned Court, surprisingly, ignored and brushed aside important documentary evidence on the ground that any resolution to engage the claimant as apprentice was passed or not, is not made and the Court ignored the fact that the obligation to engage Apprentice is statutory obligation and that therefore, absence of resolution cannot be made a ground to throw away relevant documentary evidence.
21.4 Besides this, the learned Labour Court permitted itself to proceed on the premise and the understanding that since apprentice is included within purview of definition of workman under Section 2(s), the claimant would fall within purview of Section 2(s). In this context, the learned Labour Court failed to take into account provision under Section 18 of the Apprenticeship Act. Besides this, the learned Labour Court also failed to take into account the effect and consequence of the documents placed on record by the municipal corporation.
22. Foregoing discussion has brought out and established Page 46 HC-NIC Page 48 of 57 Created On Sun Aug 13 06:56:54 IST 2017 48 of 57 C/SCA/11252/2002 JUDGMENT that learned Court has lost sight of several important facts and documents / evidence and also failed to consider the legal position in light of relevant provisions. In present case learned Labour Court has proceeded on erroneous premise. The foregoing discussion has also brought out that the learned Labour Court has decided the case on non-germane factors and consideration and simultaneously learned Labour Court has also overlooked relevant factors as well as the meaning and effect of the documents placed by the Corporation on record of reference cases. This discussion leads to the conclusion that impugned awards are erroneous.
23. At this stage Mr. Pathan, learned advocate, would submit that so far as the case of Mr. Zala is concerned, the corporation had not filed reply and / or did not examine any witness and did not place any material on record and that, therefore, the case of the claimant and the evidence by the claimant remained un-controverted. 23.1 On reading the observation in Para-4 of the award it Page 47 HC-NIC Page 49 of 57 Created On Sun Aug 13 06:56:54 IST 2017 49 of 57 C/SCA/11252/2002 JUDGMENT would, at first glance, appear that Mr. Pathan, learned advocate is, probably, justified in said submission. However, on further reading the award and also other details recorded in Para-4 itself, it comes out that initially the stage of filing reply and leading evidence was closed (for the corporation) however, the record and observation in the award gives out that the corporation had not only filed its reply but it had also filed an application raising preliminary objection against maintainability of the reference and had also examined one Mr. Rameshbhai Karmanbhai as its witness and had also placed on record above discussed documents.
23.2 After examining original R & P, Mr. Pathan learned could not dispute the fact that the corporation had filed reply and examined witnesses and also placed documents on record. However, he would submit that the said documents/their contents are not proved and that the proceedings may be remanded for reconsideration to learned Labour Court. From the observation in Para-4 of the award in Reference No.110 of 1997, it comes out that Page 48 HC-NIC Page 50 of 57 Created On Sun Aug 13 06:56:54 IST 2017 50 of 57 C/SCA/11252/2002 JUDGMENT the said submission is also not justified inasmuch as it has emerged from the record that the documents placed on record by the Corporation were duly accepted on record as Exh-19 to 28. However, the submissions by Mr. Pathan, learned advocate for the claimant Mr. Zala is justified to some extent viz. that the documents on which the corporation placed reliance were placed on record after the evidence of the claimant was recorded and that, therefore, the claimant never got opportunity to deal with the documents and/or to explain the documents/their contents etc. In this background Mr. Pathan, learned advocate would reiterate his request to remand the proceedings so that the workman can get opportunity to deal with the said documents. To this extent the submission by Mr. Pathan learned advocate appears justified and practical.
24. On the other hand, so far as case of the claimant Mr. Shukla is concerned, there appears to be some anomaly between the documents available on record and the details mentioned by the corporation in its reply (written Page 49 HC-NIC Page 51 of 57 Created On Sun Aug 13 06:56:54 IST 2017 51 of 57 C/SCA/11252/2002 JUDGMENT statement) filed by the corporation in case of Mr. Shukla and the statement made by the Corporation in its written statement/ reply gives rise to some discrepancy. On this count it is necessary to mention that in paragraph No. 1 of its reply / written statement (filed before Labour Court) the corporation mentioned that the claimant was engaged as apprentice and thereafter he was engaged for sometime on fixed wage basis and he was relieved when the period expired. From the reply it does not come out that whether the claimant Mr. Shukla was engaged after some hiatus or immediately after (i.e. without any break) his apprenticeship period expired. It also does not come out from the reply as to whether the claimant was engaged in the same department and in same trade (i.e. for same nature of work) for which he had undergone the apprenticeship or he was engaged on fixed wage basis in some other department and / or for different type of work and whether the claimant was given formal appointment as employee of the corporation immediately after completion of apprenticeship period or the claimant was engaged/ appointed in selection process sometime after Page 50 HC-NIC Page 52 of 57 Created On Sun Aug 13 06:56:54 IST 2017 52 of 57 C/SCA/11252/2002 JUDGMENT he was relieved as apprentice or he was informally continued after completion of apprentice period. 24.1 According to Mr. Trivedi, learned advocate for Mr. Shukla, the said aspects can be examined and determined only with the help of relevant evidence.
24.2 Besides this, one important fact which distinguishes the two cases has emerged from the record of the case of Mr. Zala, which is related to the apprenticeship contract. In case of Mr. Zala the apprenticeship contract was placed on record before the learned Labour Court, whereas the corporation failed to place said document on record of the case of Mr. Shukla.
24.3 He submitted that the proceeding may be remanded to the learned Labour Court so that the claimant gets an opportunity to deal with the documents placed on record by petitioner Corporation.
25. With reference to Mr. Shukla's case it is also pertinent Page 51 HC-NIC Page 53 of 57 Created On Sun Aug 13 06:56:54 IST 2017 53 of 57 C/SCA/11252/2002 JUDGMENT to note that even if it is assumed after completion of apprenticeship period, that the claimant was engaged in regular course as workman in the corporation, i.e. as employee of the corporation then, also total length of period for which he was allegedly engaged after completion of apprenticeship period is not available on record and therefore it is not possible for this Court to determine, at this stage, whether Section 25F would at all be attracted in the case of Mr. Shukla.
25.1 There is nothing on record to prove that he had worked for 12 months and had completed 240 days with the corporation, as employee of the corporation, after completion of period of his apprenticeship. 25.2 Therefore, it is not possible for this Court to finally decide and close the case of Mr. Shukla by awarding appropriate compensation. Otherwise, having regard to the facts of the case of Mr. Shukla the Court could have and this Court would have closed the matter with order to pay appropriate compensation. However, atleast for the Page 52 HC-NIC Page 54 of 57 Created On Sun Aug 13 06:56:54 IST 2017 54 of 57 C/SCA/11252/2002 JUDGMENT said limited purpose i.e. for ascertaining as to whether the claimant Mr. Shukla had worked with the corporation for 12 months as employee / workman of the corporation - after completion of his apprenticeship period and whether he had, thereafter (i.e. after completion of apprenticeship period i.e. after 19.03.1998) worked for 240 days, the matter is required to be remitted to learned Labour Court. 25.3 That is so more particularly because Mr. Munshaw vehemently contended that the sentence in 1st paragraph of written statement appears to be some typographical error since the claimant Mr. Shukla was never engaged by the corporation in any other capacity and / or during any other period except the tenure of apprenticeship.
26. Having regard to said assertion vis-a-vis the statement / sentence in the written statement, proper remedy appears to be the remedy suggested by learned advocates for the claimants. Therefore, following order is passed:-
Page 53 HC-NIC Page 55 of 57 Created On Sun Aug 13 06:56:54 IST 2017 55 of 57 C/SCA/11252/2002 JUDGMENT
27. The impugned award dated 31.1.2002 passed by learned Labour Court at Bhavnagar in Reference (LCB) No. 110 of 1997 as well as the award dated 16.2.2004 passed by learned Labour Court at Bhavnagar in Reference (LCB) No. 101 of 1999 are, for the reasons mentioned above, quashed and set aside. The said two reference cases viz. Reference (LCB) No. 110 of 1997 as well as Reference (LCB) No. 101 of 1999 are remanded to learned Labour Court for reconsideration of above mentioned aspects. Learned Labour Court will re-examine the said aspects and pass appropriate fresh award after hearing the concerned parties.
Having regard to the fact that the reference cases are very old learned Labour Court shall endeavour to decide the cases as expeditiously as possible and preferably within 4 months.
With the aforesaid clarification and direction, petitions are disposed of and the cases are remanded to learned Labour Court. The Registry shall send back the R & P to the concerned Court forthwith.
Page 54
HC-NIC Page 56 of 57 Created On Sun Aug 13 06:56:54 IST 2017
56 of 57
C/SCA/11252/2002 JUDGMENT
Sd/-
(K.M.THAKER, J.)
Suresh*/Kdc*/Saj*
Page 55
HC-NIC Page 57 of 57 Created On Sun Aug 13 06:56:54 IST 2017
57 of 57