Document Fragment View

Matching Fragments

(v) that there would be wrong presumption of non-applicability of S. 2(oo)(bb) where the work is of continuous nature and there is nothing on record that the work for which a workman has been appointed had come to an end. "

Further, he referred to the judgment in the case, H.P. Choudhary v. R.S.E. Board (1986 (2) L.L.N. 976, wherein the Rajasthan High Court has held, the definition of workman in Section 2(s) of the Industrial Disputes Act cannot be read in isolation; while construing the said provision, one cannot lose sight of the provision contained in Section 18 of the Apprentices Act. Further, it was held, " The Apprentices Act is not an exhaustive Act to cover all types of apprentices, because in view of the definition of the term, "apprentice" as contained in S. 2(aa) of the Apprentices Act, it is applicable only to persons who are undergoing apprenticeship training in pursuance of the contract of the Apprentices Act executed under Section 4 of the said Act. It is possible to visualise persons who may be engaged as apprentices, but who are not covered by the Apprentices Act. In this connection, reference may be made to the Rajasthan State Electricity Board Technical Workmen Service Regulations, 1975. In the said regulations, the term, "workman" has been defined in regulation 3(i) to include an apprentice. Regulation 5 contains the classification of the various types of workman governed by these regulations and in Cl.(vi) of regulation, the apprentice has been defined as under:

" (vi) Apprentice: A learner, who is or is not paid an allowance during the period of his training including an apprentice under the Apprenticeship Act, 1961. "

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 S. 2(s) of the Industrial Disputes Act, a person who is designated as apprentice, but is not governed by the Apprentices Act would be a workman governed by the provisions of the Industrial Disputes Act. But an apprentice who is governed by the provisions of the Apprentices Act, would not be a workman under S. 2(s) of the Industrial Disputes Act and would not be governed by the provisions of the Industrial Disputes Act. "

Further, he referred to the decision in, Dilip Hanumantrao Shirke v. Zilla Parishad (1989 (2) L.L.N. 590, wherein it was held, " The nature of employment will have to be determined with reference to the nature of duties performed by the workman and type of job the workman was entrusted with. "

9. In so far as the status of the apprentice is concerned, the Supreme Court in the case, 1976 (I) L.L.J. 81 referred above has held that an apprentice was an employee under the E.S.I. Act. Though this decision is given in respect of E.S.I. Act and since the E.S.I. Act does not include apprentice as a worker, in contra-distinction with the Industrial Disputes Act in which the apprentice is also included within the definition of worker, still the observation made by the Supreme Court equally applies to the case of an apprentice. The Supreme Court has held in clear terms that the heart of the matter in apprenticeship is, 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. This proposition of law is applicable to all cases of apprentices. The other decisions cited by the counsel for the petitioner by Kerala High Court as well as the Allahabad High Courts also appear to be following the decisions of the Supreme Court. An apprentice is only a trainee. His status is only that of a student who is learning the work of a specialized nature. Therefore, such a student/trainee or an apprentice cannot be considered as an employee. Further, even as per the Certified Standing Order of the petitioner-company the apprentice/trainee is a learner. The status of an apprentice is only a learner and not an employee.