Indian Kanoon - Search engine for Indian Law

[(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.]

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 38 of 55 Created On Sun Aug 13 06:56:55 IST 2017 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 39 of 55 Created On Sun Aug 13 06:56:55 IST 2017 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."

(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 42 of 55 Created On Sun Aug 13 06:56:55 IST 2017 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.