Allahabad High Court
Karuna Shankar Tripathi vs State Of U.P. And Ors. on 27 September, 1991
Equivalent citations: [1992(65)FLR203], (1995)IIILLJ60ALL
JUDGMENT S.H. Raza, J.
1. The petitioners, who by means of Annexure-1 to the writ petition, were appointed as apprentices for undergoing training for a period of three years as contained in Annexure-2, have invoked the jurisdiction of this Court under Article 226 of the Constitution of India against the alleged termination or retrenchment of their services after the expiry of the said period. Sri S.S. Rawat, counsel for the petitioners, contended that the petitioners were not appointed as apprentices in accordance with provisions contained in Apprentice Act, 1961, and they were 'workmen' within the meaning of word 'workmen' as defined in Section 2(z) of the U.P. Industrial-Disputes Act 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 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 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.
2. Section 18 of the Apprentices Act, 1961 provides that the apprentices are trainees and not workers, save as otherwise provided in this Act (a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker and (b) the provisions of any law with respect to Labour shall not apply to or in relation to such apprentice.
3. Apparently there appears to be a conflict between the provisions of Section 2(z) of the U.P. Industrial Disputes Act and Section 18 of the Apprentices Act. Hon'ble Supreme Court in the Case of Employees State Insurance Corporation v. The Tata Engineering and Locomotives Co. Ltd, : 1976(1) LLJ 81 (SC) observed:
"The heart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. Such a person remains a learner and is not an employee. An examination of the provisions of the entire agreement leads us to the conclusion that the principal object with which the parties enter into an agreement of apprenticeship was offering by the employer opportunity to learn the trade or craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the course of the training. This is the primary feature that is obvious in the agreement,"
4. After referring to the definition of 'apprentice' as contained in Apprentices Act, 1961 the Supreme Court observed:
"Even then the question is whether such an apprentice is an employee within the meaning of the term under Section 2(9) of the Act. If the answer is yes, he will be governed by the Act and the appellants claim for charging the company with liability for payment of special contribution under Chapter V-A of the Act in respect of the apprentices will be justified."
5. In the said decision the Supreme Court has taken note of Section 13 of Apprentices Act as well as the definition of Section 2(s) of Industrial Disputes Act (Central) which is para materia with Section 2(z) of the U.P. Industrial Disputes Act and the Supreme Court has pointed out the distinction between the definition of 'workman' in Section 2(s) of Industrial Disputes Act and the definition of employee as contained in Section 2(9) of the Employees State Insurance Act, and has observed:
"Again we find that where the legislature intends to include apprentice in the definition of a worker it has expressly done so. For example, the Industrial Disputes Act, 1947, which is a piece of beneficial labour welfare legislation of considerable amplitude defines 'workman' under Section 2(s) of that Act and includes apprentice in express terms. It is significant that although the legislature was aware of this definition under Section 2(s) under the Industrial Disputes Act, 1947, the very following year while passing the Employees' State Insurance Act, 1948 it did not choose to include apprentice while defining the word 'employees' under Section 2(9) of the Employees' State Insurance Act, 1948. Such a deliberate omission on the part of the legislature can be only attributed to the well-known concept of apprenticeship which the legislature assumed and took note of for the purpose of the Act. This is not to say that if the legislature intended it could not have enlarged the definition of the word 'employee' even to include the 'apprentice' but the legislature did not choose to do so."
6. In the case of Hanuman Prasad Choudhary v. Rajasthan State Electricity Board, Jaipur, 1986 L.I.C. 1014 after considering the precedents of Hon'ble Supreme Court as indicated above, Hon'ble S.C. Agarwal, J. of Rajasthan High Court indicated:
"In my opinion the definition of 'workman' as contained in Section 2(s) of the Industrial Disputes Act cannot be read in isolation and while construing the said provision, one cannot lose sight of the provisions contained in Section 19 of the Apprentices Act. The provisions of Section 2(s) of the Industrial Disputes Act were substituted by the Industrial Disputes (Amendment) Act, 1956. The Apprentice Act was enacted by Parliament thereafter. In Section 18 of the Apprentices Act, it has been expressly laid down that save as otherwise provided in the said Act, every apprentice undergoing apprenticeship training a designated trade in all establishment shall be a trainee and not a worker. The said section further lays down that the provisions of any law with respect to labour shall not apply to or in relation to such apprentice. This would show that in Section 18 of the Apprentices Act the Parliament has unequivocally declared that a person who is an apprentice under the Apprentices Act is not a worker and the provisions of any Law in respect of Labour shall not apply to such a person. Industrial Disputes Act is undoubtedly a law with respect to labour inasmuch as it has been enacted for the investigation and settlement of industrial disputes and for certain other purposes mentioned therein. This would imply that in view of Section 18 of the Apprentices Act, provisions of Industrial Disputes Act would not apply to the persons who are apprentices under the Apprentices Act, it would thus appear that mere is apparent conflict between the provisions of Section 2(s) of the Industrial Disputes Act and Section 18 of the Apprentices Act inasmuch as Section 2(s) postulates that an apprentice is a workman to whom the provisions of Industrial Disputes Act would be applicable whereas Section 18 of the Apprentices Act declares that an apprentice governed by the Apprentices Act is not to be treated as a workman and the provisions of the Industrial Disputes Act would not be applicable to him. In my view this conflict between the provisions of Section 2(s) of the Industrial Disputes Act and Section 18 of the Apprentices Act can be resolved by applying the principle of harmonious construction so that each provision may operate without encroaching on the field of the other.
7. His Lordship further observed:
"This would show that an apprentice who is a workman under the said Regulations would include a person who may not be an apprentice under the Apprentices Act. In that view of the matter, it can be said that for the purpose of Section 2(s) of the Industrial Disputes Act a person who is a designated as Apprentice but is not governed by the Apprentice Act would be a workman governed by the provisions of the Apprentice Act, would not be a workman under Section 2(s) of the Industrial Disputes Act and would not be governed by the provisions of the Industrial Disputes Act."
"Apart from the aforesaid principle of harmonious construction the conflict between the provisions of Section 2(s) of the Industrial Disputes Act and Section 18 of the Apprentices Act can also be resolved by applying the principle of statutory interpretation that the operation of a prior general law may be curtailed by a subsequent particular law. Industrial Disputes Act is a general law in application to all categories of workmen whereas the Apprentices Act is a particular law enacted with special reference to apprentices. The definition of workman in Section 2(s) of the Industrial Disputes Act was enacted in 1956 whereas the Apprentice Act was enacted in 1961. Section 2(s) of the Industrial Disputes Act is thus the prior general law and Section 18 of the Apprentices Act is a subsequent, particular law. The provisions of Section 18 of the Apprentices Act will, therefore, prevail over the provisions contained in Section 2(s) of the Industrial Disputes Act relating to apprentices and an apprentice governed by the Apprentice Act cannot be regarded as a workman under Section 2(s) of the Industrial Disputes Act."
8. Thus the main question which crops up for decision in this writ petition is that if an apprentice has been appointed under the provisions of Apprentices Act, 1961 then he cannot be treated as workman and after the completion of the training period he is not entitled to be retained in service and the provisions of Industrial Disputes Act woufd not be attracted to him. But if an apprentice is not appointed in accordance with the provisions of Apprentices Act then he would be an apprentice in accordance with the general terms and would come within the ambit and scope of the definition of 'workman' contained in Section 2(z) of the U.P. Industrial Disputes Act.
9. Now it has to be seen whether the petitioners were appointed as apprentices under the provisions of the Apprentices Act, 1961, or not.
10. A perusal of Annexure-1 would indicate that the petitioners themselves applied for short appointments as apprentices and it has been vehemently argued by the counsel of the respondents that the petitioners cannot resile from taking a stand that they were not appointed as apprentices under the provisions of Apprentices Act, 1961. Mr. Rawat, on the other hand, contended that first of all it has to be seen whether the petitioners have fulfilled the condition as contained in Section 4 of the Act or not. Section 4 of the Apprentices Act, 1961, reads as under:
"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 a minor, his guardian has entered into a contract or 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".
11. The counsel for the petitioner concedes that in case of the petitioner was appointed in accordance with the Apprentices Act, 1961, his petition deserves to be thrown out, but he submits that the petitioner having no bargaining capacity, if accepted the appointment as apprentice under the respondent under compelling circumstances, it cannot be said that they would be bound by that contract and in this regard he placed reliance on the observations of the Hon'ble Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly 1986 (2) LLJ 171 (SC).
12. Before dealing with this aspect of the matter it is necessary for this Court to consider as to what the word 'apprentice' or 'apprentices training' means under the provisions of the Apprentices Act. In subSection (aa) of Section 2 of the Apprentices Act, apprentice has been defined to mean a person who is undergoing apprenticeship training in pursuance of the contract of apprenticeship. Sub-Section (aaa) of Section 2 of the Act defines 'apprenticeship training' as 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.
13. Thus it is evident that if a person in pursuance of a contract of apprenticeship has been appointed as apprentice then he would come within the scope and ambit of Apprentices Act, 1961. Section 4 of the Apprentice Act which deals with the contract of apprenticeship reads as under:
"4. (1) No person shall be engaged as an apprentice to undergo apprenticeship training in a designated trade unless such person or if he is a 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)."
14. The petitioners in para 7 of the writ petition have submitted that opposite party No. 3 did not enter into any contract of apprenticeship with the petitioners regarding their apprenticeship training as provided under the Act. Neither the petitioners were allotted particular trade nor provided with the proper apprenticeship training as provided in the Schedule I to the Apprentices Act, 1961. It is further submitted in para 8 of the writ petition that the petitioners were engaged like general workers in the press and they had been doing every work which was assigned to them from time to time. As a proof of it an order dated 17.2.84 was annexed with the writ petition.
15. In para 10 of the counter-affidavit, specific allegations made by the petitioners that no contract of apprenticeship with the petitioners, regarding their apprenticeship training was entered into, were denied in cryptic manner but it was averred that the petitioners were allotted different trades while undergoing training of apprentices under the answering opposite party. It was also averred that the petitioners were posted to acquire knowledge of the trade under answering opposite party.
16. Thus it is evident from the facts enumerated in the writ petition as well as the counter-affidavit that no contract of apprenticeship was entered into between the petitioners and the employer. A perusal of Section 4 of the Act would indicate that the terms and conditions should be agreed upon between the parties to the contract and such a contract entered into would be sent by the employer on a prescribed form to the Apprenticeship Advisor for registration. The Apprenticeship Advisor would not register the contract of Apprenticeship unless he was satisfied that the person described as an apprentice in the contract was qualified under this Act for being engaged as an apprentice to undergo apprenticeship training in the designated trade specified in the contract. Section 6 of the Act provides for period of apprenticeship training. It reads as under:
"6. Period of apprenticeship training. The period of apprenticeship training, which shall be specified in the contract of membership, 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 conducted by; (that Council or by an institution recognised by the Council) the period of apprenticeship training shall be such as may be determined by (that Council or by an institution recognised by that Council);
(aa) in the 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 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 (trade apprentices) the period of apprenticeship training shall be such as may be prescribed:
(c) in the case of graduate or technician apprentices, the period of apprenticeship training shall be such as may be prescribed.
17. Section 7 of the Act deals with the termination of apprenticeship contract which provides that the contract of apprenticeship shall terminate on the expiry of the period of apprenticeship training and either party to a contract of apprenticeship may make an application to the Apprenticeship Advisor for the termination of the contract etc. It further provides that where contract is terminated for failure on the part of the employer to carry out the terms and conditions of the contract, the employer shall pay to the apprentice such compensation as may be prescribed.
18. From the perusal of the aforesaid provisions it is clear that in accordance with the provisions contained in this Act no contract was entered into between the petitioners and the employer and the same cannot be terminated in accordance with Section 7 of the Act. If a person is not appointed as an apprentice in accordance with the provisions of the Act then the general law i.e. Industrial Disputes Act would apply and being an apprentice he would come within the scope and ambit of the definition of 'workman'. The aforesaid observation of this Court if fortified by the observations of two Hon'ble Judges of the Madhya Pradesh High Court, Gwalior Bench, in the case of M.P. Electricity Board v. Basant Kumar Pandey 1990 (60) FLR 39. In the aforesaid case the question before the Court was as to whether the workers be treated as apprentices or workmen. The Division Bench proposed to hold them workmen and not apprentices. The admitted position in the case was that each of the respondents had rendered service under the establishment of petitioner i.e. M.P. Electricity Board, and agreement of apprenticeship was filed in each case. In the aforesaid circumstances the Bench observed:
"In the instant case, the admitted position is that for much more than six months in each case; each of the respondents has rendered service under the establishment of the petitioner M.P. Electricity Board. Though we have before us the agreement of apprenticeship, filed in each case, we do not think if that would change in any manner the material completion of the list in either case. The term 'apprentice' is also defined in Clause 2 and we have no doubt, the relation between the parties in the instant case notwithstanding the contract, must be governed by the statutory provisions. Sub-clause (v) of Clause 2 of the Annexure prohibits any employee being regarded or classified as an apprentice' if he has been given training for an aggregate period of more than a year. This seals the fate and fixes the final nail in the coffin of the case of the petitioner that the respondents could be validly told to pack up and go home because they had fulfilled their terms of service under the agreement. We do not think if we have to say anything more on this aspect of the case of the petitioner."
19. It was further submitted by Sri Rawat that under Section 2(e) of the Apprentices Act, 1961, designated trade has been defined to mean:
"any trade or occupation or any subject, field in engineering or technology which the Central Government, 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."
20. In Schedule I of the Apprenticeship Rules, 1962 the description of 'designated trade' has been given. The contention of the petitioner's counsel is that in accordance with the provisions of Section 18A the petitioner was not allotted work in any designated trade in the establishment, hence it cannot be said that he was appointed as apprentice under the provisions of the Act but in accordance with the general term of the meaning of the word 'apprentice' which comes within the scope and ambit of the definition of 'workman as contained in Section 2(z) of the U.P. Industrial Disputes Act. In the counter-affidavit it has been only averred that the petitioners were appointed as apprentices and were discharging duties of apprentices and were allotted different trades while undergoing training of apprenticeship under the answering opposite party. Working on different trades in any establishment does not mean work on designated trade which has been clearly defined under the provisions of this Act and the description of which has been given in the Schedule, so it cannot be said that the petitioners underwent training in a designated trade. Furthermore it was submitted that under Rule 10(7)(b) of the Apprenticeship Rules the petitioners were not allowed to appear into the trade test as indicated above, hence they cannot be deemed to be apprentices appointed under the Act. Learned counsel for the opposite parties contended that the test was to be taken by the Advisor and hence the respondents cannot be blamed for it. Thus he conceded that the petitioners did not undergo the required test as contained in the rules.
21. It was next contended by the counsel for the respondent that the petitioner had approached the Apprenticeship Advisor in accordance with the provisions contained in Section 29 of the Act, and as he has availed the alternative remedy, the writ petition is not maintainable. There is no doubt that the petitioner had approached the Advisor by making a representation in the year 1984 which was never disposed of. Even the learned counsel for the respondent could not make a statement as to whether the representation has been disposed of or not. The writ petition was admitted in the year 1987. Notices were issued to the parties, who had filed their affidavits. The question of availability of alternative remedy should always be raised at the time when the writ petitions are initially filed. When the writ petition is admitted it would be presumed that while admitting the writ petition the Court had arrived at a conclusion that alternative remedy was not efficacious one or the order impugned was patently wrong and the question of alternative remedy was not required to be considered. This writ petition has been lingering on since 1985. The petitioners who are petty workmen have been lurking in an atmosphere of uncertainty. The writ petition cannot be thrown out on the ground of availability of alternative remedy.
22. The counsel for the opposite party next contended that as the petitioners have succumbed to the jurisdiction of the Apprenticeship Advisor hence he cannot maintain this writ petition. I have gone through the representation of the petitioners contained in Annexure-5. The petitioners had raised the same grievance before the Advisor which they had raised before this Court, hence it cannot be said that by approaching the Advisor they had impliedly admitted that they were apprentices appointed under the provisions of the Act. After hearing the learned counsel for the parties at length this Court is of the definite view that the petitioners cannot be deemed to be apprentices appointed under the Apprentices Act, 1961 but were appointed as apprentices in the general sense of the term and hence being appointed as apprentices not governed by this Act, they would be deemed to be apprentices and come within the scope and ambit of the definition of 'workman' as enshrined in Section 2(z) of the U.P. Industrial Disputes Act. As they were 'workman' within the meaning of the Act, the provisions of Section 6N of the Industrial Disputes Act, which are para materia with Section 25(f) of the Industrial Disputes Act (Central), the termination/retrenchment of their services without giving them any notice, paying retrenchment bonus and obtaining sanction from the State Government, is non-est and deserves to be quashed and the same cannot be sustained.
23. In view of what has been indicated hereinabove the writ petition succeeds and a writ in the nature of mandamus commanding the opposite party No. 3 not to terminate the employment of the petitioners is issued.
Petition allowed.