Punjab-Haryana High Court
State Of Haryana And Another vs Satish Kumar And Another on 10 May, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.6969 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CWP No.6969 of 2013 (O&M)
DATE OF DECISION : 10.05.2013
State of Haryana and another ....Petitioners
Versus
Satish Kumar and another ...Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present : Ms. Tanisha Peshawaria, Deputy Advocate General, Haryana,
for the petitioners.
Mr. Ravinder Rana, Advocate,
for the caveator-respondent No.1
RAJIV NARAIN RAINA, J. (ORAL)
By the consent of the learned counsel for the parties, this matter is taken on board for final disposal.
Heard Ms. Tanisha Peshawaria, learned Deputy Advocate General, Haryana, and Mr. Ravinder Rana, Advocate for caveator-respondent No.1.
The challenge in this petition filed by the State of Haryana is to the award dated 07.12.2012 (P-9) by which the respondent-workman has been reinstated in service but without back wages. Ms. Peshawaria relies on Section 18(b) of the Apprenticeship Act, 1961 (in short 'the Act'), which specifically provides that the provisions of any law with respect to labour shall not apply to or in relation to an apprentice.
It is the case of the petitioner that the respondent-workman was engaged as an apprentice vide memo of engagement dated 14.10.2005 (P-1) under the provisions of the Act. The appointment letter as apprentice issued to the respondent-workman, is placed on record as Annexure P-2, which records CWP No.6969 of 2013 (O&M) -2- that the selection of the respondent was as an apprentice in the trade of Book Binder in the Haryana Government Press, Chandigarh. The duration of training was specified as two-three years and the respondent was to be paid Rs.820/- per month for the 1st year and Rs.940/- per month for the 2nd year. The Labour Court has relied on a Full Bench decision of this Court in Virender Singh Vs. Haryana Tourism Corporation Ltd., 2005(3) RSJ, 281, to hold that apprentices are also workman and, therefore, they are protected by the Industrial Disputes Act, 1947. The Tribunal has held that there were 07 posts of Learner Binder and 75 posts of Book Binder vacant as per the response received from the Public Information Officer under the Right to Information Act, 2005 and relied upon. Therefore, the claim of the respondent to regular appointment could have been satisfied. This line of reasoning has been assailed by the State before this Court.
Ms. Tanisha Peshawaria, learned Deputy General, Haryana appearing for the petitioner State draws the Court's pointed attention to Section 18 of the Apprenticeship Act, 1961 and in particular sub-section (b) thereof, to contend that the 1961 Act is special and later law which excludes apprentices from the provisions of any other law with respect to ''labour'' which would include the Industrial Disputes Act, 1947. Generalia specialibus non derogant is the basic principle of statutory interpretation applicable to this case.
It is vehemently argued that the 1961 Act is special law and, therefore, the respondent-workman cannot be taken to be a 'workman'' under Section 2(s) of the Industrial Disputes Act, 1947 even though the word 'apprentice' is mentioned in the definition section. Section 2 (s) reads:
"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 CWP No.6969 of 2013 (O&M) -3- 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, function mainly of a managerial nature.]"
It is urged that the decision of the Full Bench of this Court has no bearing on the facts of this case since it has been specifically noticed in the judgment that the worker therein was not appointed under the 1961 Act and in any case was asked by the employer to continue after training by an order and, therefore, this Court took the view that the case would fall under Section 2(s) of the 1947 Act and when there was violation of Section 25-F of the Act then disengagement would amount to retrenchment under Section 2 (oo).
Ms. Peshawaria would also point out to the cross-examination of the respondent, where he admits that he was paid 'Stipend' during the period of apprenticeship. Though the cross-examination is not on record of the writ paper-book but the same in extract has been handed over to this Court where Satish Kumar, Apprentice appeared as his own witness as AW-1. There is a further admission in the cross-examination of Satish Kumar-respondent that he remained on apprenticeship for two years and his apprenticeship was ''extended'' beyond two years due to negligence of the department and that he was relieved by the department on 09.04.2009. Learned counsel would contend that the word 'extended' has not been used correctly. Actually it was a case of overstay due to oversight and negligence of the department with no status declared or attached which could be taken as a conscious act of appointment by CWP No.6969 of 2013 (O&M) -4- the management of the respondent to regular service or of regularization or shifting him from contract to status. The part of the cross-examination where these admissions occur are taken on record as Mark 'A'.
On the other hand Mr. Ravinder Rana, learned counsel appearing for the caveator/respondent No.1, relies on the first part of paragraph 21 of the Full Bench judgment underlined for emphasis, which reads as follows:-
"21. Assuming, however, that the petitioner was appointed under the Act of 1961, his continuous employment, even after the specified period of training, mentioned in his letter of appointment, would entail cessation of his being apprentice. Apprentice means a person who is undergoing apprenticeship training. The moment apprenticeship training comes to an end and that too successfully and when there is no order of extension of period of training, not novation in terms of Section 5 a person can not be styled as apprentice. Apprenticeship training by virtue of Section 2(aaa) 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. It is no doubt true that by virtue of the provisions of Section 18 of the Act of 1961, apprentices are trainees and not workers and the provisions of any law with respect to labour shall not apply to or in relation to such apprentice. But the petitioner, in our considered view, can not be called as an apprentice after his training period came to an end as he was asked to continue till further orders and when significantly, in the said order as well, no specified period was mentioned."
The interplay or conflict between the provisions of the Apprenticeship Act, 1961 which is a complete code in itself and the Industrial Disputes Act, 1947 and the U.P Industrial Disputes Act, 1947 which are the general law have engaged the attention of the Supreme Court in UPSEB v. Shiv Mohan Singh, (2004) 8 SCC 402 and the opinion expressed in para 56 of the report reads:
"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 includes apprentice. But the expression appearing in Section 2(z) of the U.P Industrial Disputes Act and the 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 shall not apply to or in relation to such apprentice". Therefore, reading of definition of "apprentice" in CWP No.6969 of 2013 (O&M) -5- Sections 2(aa) and 2(r) read with Section 18 of the Apprentices Act leaves no manner of doubt that this Act which is a special Act does not cover the workmen 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 the 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 stands excluded."
In the same strain see National Small Industries Corp. Ltd v. V. Lakshminarayanan, (2007) 1 SCC 214.
From the above, learned counsel for the respondent would argue that on the expiry of the period of apprenticeship, mere oversight without there being an express order would lend permanence to the trainee and, therefore, the right to be protected by the mandatory provisions of the Industrial Disputes Act, 1947 would arise. This argument deserves to be notice and rejected. There is nothing in the engagement letter which promises hope of contract of employment. Moreover, in terms of Section 22 of the 1961 Act, the employer has no statutory liability to give employment to an apprentice. Besides, non- registration of the contract of apprenticeship would not render the same nugatory.
I am afraid that in this case there was no formal order issued to the respondent to continue as apprentice trainee till further orders or in a regular capacity as in the case before the Full Bench. Therefore, the Full Bench decision is distinguishable from the facts of this case. The status of the respondent cannot be converted to that of the ''workman'' under Section 2(s) of the 1947 Act in view of the bar contained in Section 18 of the Apprentice Act, 1961, which reads as under:-
"18. Apprentices are trainees and not workers-
(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."CWP No.6969 of 2013 (O&M) -6-
Per contra, Ms. Peshawaria would point out firstly; that the words ''any law with respect to labour'' would include inter alia the Industrial Disputes Act, 1947 and secondly; to the deposition of MW-1 where the management witness stated that the respondent was not engaged on the post of Book Binder by any of the three known modes of recruitment. The witness testified to the following:-
"4. That it is pertinent of mention here that there is a procedure and mode (direct/transfer/promotion) for appointments/recruitments in the Government sector. The post of Book Binder is also to be filled as per service rules framed under Article 309 of the Constitution of India called "Haryana, Printing and Stationery Department, Industrial (Group-C) service Rules, 1998" which prescribe three modes of recruitment as direct/transfer/promotion. Hence, the question of appointment letter as claimed by the applicant does not arise. The post of Book Binder is not filled through daily wages by the respondent management."
For these reasons, this Court is of opinion that the impugned award dated 07.12.2012 (P-9) of the Labour Court suffers from an incurable jurisdictional infirmity going to the root of the matter and therefore, the same cannot be sustained. Consequently, the writ petition is allowed and the impugned award dated 07.12.2012 (P-9) is set aside.
A copy of this order be given to the learned State Counsel dasti on payment of usual charges.
10.05.2013 (RAJIV NARAIN RAINA) adhikari JUDGE