Management of Secales Limited vs Presiding Officer, Labour Court and Others

Prabha Sridevan, J.—The writ petitioner in W.P. No. 13341 of 1997 devised a training scheme whereby candidates were selected as

apprentices and given training for three semesters. The training includes, on the job training and also attending theory classes and writing a written

test. The apprentices so trained were given stipend and full-time wages. The training scheme required the apprentices to complete the course

successfully, they would not be offered permanent employment. Even those, who have completed the training successfully were not automatically

entitled to employment and appointment would depend upon availability of vacancies. Ten apprentices raised industrial disputes claiming that they

were ''workmen'' when the training period came to an end. The Labour Court came to the conclusion that out of the ten apprentices, three were

made to work against regular vacancies and ordered reinstatement, but dismissed the claims made by the others. Therefore, W.P. No. 13341 of

1998 has been filed by the management challenging the order of reinstatement in respect of three persons and W.P. No. 12877 of 1998 is filed by

the persons whose claims were rejected by the Labour Court. For convenience, the petitioner in W.P. No. 13341 of 1997 will be referred to as

''petitioner'', the workmen, who succeeded before the Labour Court will be referred to as ''workmen'' and the unsuccessful claimants, who have

filed W.P. No. 12877 of 1998 will be referred to as ''apprentices''.

Learned counsel for the petitioner submitted that the respondent joined the petitioner''s training scheme on December 13, 1986 and he ought to

have completed his apprenticeship by October, 1987. By a period of extension, he completed the first two semesters by March, 1989. He was

permitted to join the third semester, which he completed in January, 1990. The third respondent joined the apprentice scheme on January 15,

1987. He. ought to have completed the training in March, 1989. He joined the third semester but could not complete it. He was given an

extension, but he did not avail of the opportunity. The fourth respondent joined the scheme on June 17, 1985, completed two semesters, but did

not complete the third semester.

The apprentice scheme lays down certain terms and conditions and the appointment letter in favour of the fourth respondent Chandrasekaran

has been enclosed. Some of the conditions are: (1) payment of Rs. 8 per day as stipend; (2) conduct of theory and practical examinations at the

end of each semester (6 months); (3) the candidate would move to the next semester only if he passes the first one. However, in special cases,

where the Management is of the opinion that the candidate deserves it, he can be given extension; (4) the Management had the right to terminate

the apprenticeship and the letter stated:

On your successful completion of the full apprenticeship period, only on the availability of existing vacancies and at the discretion of the

Management, you can be absorbed as a probationer. If there are no existing vacancies or in the opinion of the Management, you are not suitable

for appointment as probationer, probationary appointment will not be offered.

According to the learned counsel for the petitioner, the Management would not employ anyone unless they underwent successfully the

apprenticeship training, since the nature of work involved some expertise and skill.

It was submitted that when the appointment letter made it clear that absorption was not automatic and when respondents 2 to 4 were not posted

in a regular vacancy, there was no justification for ordering reinstatement. Without any basis or evidence, the Labour Court has passed the award.

Several decisions were relied on:

(1) Jayanthi S. Vs. Presiding Officer, Labour Court and Another, , (2) Mahavir Singh Vs. U.P. State Electricity Board and Others, , (3) Ajaib

Singh Vs. The Sirhind Co-Operative Marketing Cum-Processing Service Society Limited and Another, , (4) Management of T1 Diamond Chain

Ltd. v. Presiding Officer, 2003 I LLJ 98 , (5) K. Rama Rao Vs. Chief Executive, Nellimarla Jute Mills and Others, , (6) Surya Prasad Singh and

Another Vs. Labour Court II, Kanpur and Another, .

Learned counsel appearing for the apprentices, would however, submit that while the Labour Court came to the right conclusion with regard to

the three respondents, the Labour Court erred in deciding differently with regard to the other seven apprentices. He would submit that there is

absolutely no discussion regarding the case pleaded by the apprentices. It was submitted that the Labour Court erroneously, came to the

conclusion; (1) that the dispute was not maintainable since Section 2-A(ii) of Industrial Disputes Act was not retrospective and could not be

invoked in respect of a dispute which arose before the amendment came into force and (2) also that the claim should be rejected on the ground of

laches. Therefore, these apprentices would also be entitled to reinstatement.

In K, Rama Rao v. Chief Executive, N.J. Mills (supra), it was held that Section 2-A(ii) can be invoked even with regard to dismissal prior to

that date. There, of course, the learned Judge was referring to the AP Act but the reasoning is the same. The learned. Judge observed that there is

nothing in the language of Section 2-A(ii) to exclude the workmen''s right to approach the Labour Court even in respect of the orders of dismissal

etc. passed prior to the amendment Act. This legal position was also not seriously challenged by the Management. Therefore, the rejection of the

claim of the apprentices for these reasons, namely, the retrospective operation of the Section and laches cannot be sustained.

Next, we will have to examine the award to see if otherwise, the Labour Court''s conclusion is correct. In S. Jayanthi v. Presiding Officer

(supra), it was held that on facts though she was referred to as an advanced trainee and it was for a prescribed period and there was nothing to

show that she was working as a technician. On this ground and also on the ground of delay, the decision went against the apprentice. In

Management of TI Diamond Chain Limited v. Presiding Officer (supra), a case similar to the present case came up for consideration. There also,

there was a scheme called apprentice scheme and the standing orders said that the period of apprenticeship, in any case, cannot exceed three

years. The question arose whether non-employment will amount to termination. The Labour Court directed reinstatement. This was set aside. It

was held that since the training programme specifically included on the job work, the status of the apprentice would not become automatically one

of permanent employee. In that case, further, the Labour Court also doubted the genuineness of the training itself and this was held to be perverse.

According to the learned counsel for the petitioner this would clearly apply to the present case. But every decision depends on the peculiar facts of

the case. In the present case, the issue is whether the apprentices are entitled to appointment automatically and whether non-employment

amounted to termination and whether the three respondents who had been appointed therefore, ceased to be apprentices. As regards the

apprentices, that decision will definitely apply.

Several decisions of the Supreme Court were referred to in which it was held inter alia that in apprenticeship the dominant object is to impart

training and such an apprentice remains a learner and not an employee. His position is akin to that of a student and that he can at best have a

prospective growth and that he will be observed in establishment later.

In the present case the facts are slightly different. The learned counsel for the apprentices also made an attempt to refer to the provisions of the

Apprentices Act, but since it is clear and it is not in dispute that the apprentices are not Act apprentices and not governed by the Apprentices Act,

those provisions will not apply. In the present case, the Labour Court had given reasons why two different awards were given to two sets of

persons. Only the three respondents namely Chandrasekaran, Devaraj and Selvaraj had marked Exhibit W-1 to W-7 are pay slips and overtime

slips. It was submitted that merely because overtime wages was paid it would not mean that they had been appointed as against the regular

vacancy and that they were bound to pay overtime wages even with regard to apprentices. The payslips produced by the three respondents refer

to earned leave encashment, Employees State Insurance contribution, Provident Fund etc. The Labour Court found on the basis of the evidence

that these three respondents were appointed against a clear vacancy and whereas as regards the other seven, they only continued to be

apprentices whose appointment would depend upon existence of vacancy as well as successful completion of the apprentice scheme course. Even

if it is accepted payment of overtime alone will not make the respondents as regular appointees, there is no explanation why in addition to the

overtime slip, pay slips were also given to these three persons and in respect of whom ESI contributions were made and Provident Fund

deductions were also made. The materials on record showed that there was a difference between the three respondents and the other apprentices.

Therefore, the Labour Court correctly came to the conclusion that while the three respondents were appointed against the vacancies the

apprentices were not.

In Surya Prasad Singh v. Labour Court (supra), the Supreme Court held that the High Court was not justified in going to the question whether

the appellant was a workman when the Labour Court had come to the conclusion that he was working against a clear vacancy. There is nothing to

indicate that the conclusion of the Labour Court is totally perverse or unjustified. It is only with regard to these three workmen that such documents

were produced and it is only for those three workmen, the Labour Court found that they are working against the clear vacancies. There is no

justification to interfere with this finding. Therefore, this writ petition, W.P. No. 13341 of 1997 is dismissed.

As regards the apprentices it is seen from the award that their cases were rejected not only on the ground of laches and the application of

Section 2-A(ii) of the I.D. Act. The Labour Court also found that at the end of the extended period of training, the apprentices were not appointed

to a post. The Scheme shows that every trainee will not automatically be absorbed in service.

The learned counsel for the apprentice would submit that the apprentice scheme itself is a ruse to get cheap labour. But, the fallacy of this

contention is demonstrated in the records which have been produced to show that apprentices who have passed apprenticeship scheme had been

regularly appointed. Therefore, this contention of the apprentices is not accepted.

As found by the Labour Court the petitioner had devised a scheme for training apprentices since the nature of work involved use of

sophisticated machinery. This training was subject to certain terms and conditions. It may be that the three respondents did not complete the

scheme within the time stipulated, but, however, since they had been appointed against vacancies, they cease to be apprentice, their termination is

illegal and award of reinstatement must be confirmed. As against the others, there was no appointment and the apprenticeship came to an end; they

do not have a right to expect to be appointed since as held in the various decisions referred to in Management of TI Diamond Chain Limited v.

Presiding Officer (supra), they are at best learners. Therefore, this writ petition (W.P. No. 12877 of 1998) is also dismissed. No costs.

The connected miscellaneous petition is closed.