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Judgment
A.K. Rajan, J.—The writ petition has been filed for the issue of a writ of certiorari to quash the award dated 27.8.2001 in I.D.439 of 1998
on the file of Labour Court, Salem.
The brief facts necessary for the purpose of disposal of the case are as follows:
The second respondent herein was employed as a casual labourer in the petitioner management from 3.2.1994; whenever there was work in the
establishment he was entertained. After some time he made an application for apprentice training on 12.6.1995. The petitioner entertained the
second respondent as an apprentice for one year as per the contract entered into between the parties. Clause 2 of the said contract stipulates that
the contract will automatically come to an end at the end of the period unless it was extended by specific order. Clause 10 provides that it is not
obligatory for the company to offer him any appointment after the completion of the apprentice period. As per Clause 2(h) of the Certified
Standing Orders the petitioner is empowered to engage apprentices for a period of three years. The petitioner is engaged in the manufacture of
protection equipment for high voltage power transmission and distribution. The job training was given to the second respondent when he was
engaged as apprentice. The second respondent was not up to the mark and he was found lacking in certain areas. Therefore the training period
was extended for a further period of six months from 11.6.1996. Even in the extended period his learning was not up to the level of expectation
and hence he was relieved from service from 31.12.1996. At the time of relieving of the second respondent, the petitioner settled the amount due
to the second respondent.
Subsequently the second respondent raised an industrial dispute before the Labour Officer on the ground that he was entertained as a
permanent employee and he was illegally terminated from service without any notice or enquiry and pleaded for reinstatement. Then the matter was
referred to the Labour Court, Salem.
In I.D.439 of 1998 the second respondent raised the plea that he has become a permanent employee, since he has worked for more than 240
days within a year in the petitioner company. Therefore the petitioner management violated Section 2(oo) and Section 25F of the Industrial
Disputes Act. The Labour Court passed an award in favour of the second respondent and granted the relief of reinstatement with continuity of
service with full back wages. Challenging this award, the present writ petition has been filed.
Mr. Balasubramaniam, the learned counsel appearing for the petitioner submitted that the second respondent was not a regular employee and he
was only engaged as an apprentice. Therefore on the ground that the second respondent worked continuously for more than 240 days in the
petitioners'' company he cannot claim that he worked in the company as an employee; it cannot be said that he worked continuously for more than
240 days within a period of one year. The Labour Court has further held that the contract for apprenticeship is ab initio void. Further it is held that
since there is no proof that the company was empowered by the Standing Orders to give training by way of apprentice and permission was not
obtained for training the apprentice and contract of apprenticeship was not registered and therefore the contract is null and void. The learned
counsel contended that the award is not legally sustainable.
The learned counsel Mr. K.V. Shanmuganathan appearing for the second respondent submitted that the second respondent was working just
like any other permanent employee and was also participated in the manufacturing process; for all practical purposes, he was a regular employee.
Admittedly he has worked for 240 days within the continuous period of one year and therefore he was entitled to be made as a permanent
employee as per the Tamil Nadu Establishments (Conferment of Permanent Status to Workmen) Act, 1981. Therefore the impugned award is
legally sustainable.
7(a). In support of his argument the learned counsel for the petitioner referred to the judgment of the Supreme Court in VENUGOPAL v. L.I.C
OF INDIA 1994 1 LLJ 597 where the Supreme Court has held as follows:
In the present case, the termination of service of the officer is as a result of the contract of employment having been terminated under the
stipulation specifically provided under Regulation 14 and the order of appointment of the officer. Hence the non-compliance of the requirement
Section 25F shall not vitiate or nullify the order of termination of the officer.
(b). He also referred to another judgment of the Supreme Court in the case of OSWAL P.D.C. INDUSTRY v. P.O 7 & ANR. 1998 1 LLJ 1074
where the Supreme Court has held that the termination of service on the basis of the assessment made by the employer of performance of
employee supported by some material and not mala fide. The High Court cannot interfere and substitute its satisfaction to that of employer.
(c). He referred to another Division Bench judgment of the Rajasthan High Court in the case of RAJASTHAN STATE ROAD TRANSPORT
CORPORATION v. RAMAVTAR SHARMA 1998 1 LLJ 973 where the Rahjasthan High Court has held that the termination of service of a
workman on the ground of non-renewal of contract of employment during the period of probation as per the condition in the standing orders is
excluded from the ambit of retrenchment u/s 25F read with and Section 2(oo)(bb) of the Industrial Dispute Act.
(d). He also relied upon another judgment of the Supreme Court in the case of Kalyani Sharp India Ltd. Vs. Labour Court No. 1, Gwalior and
Another, where the Supreme Court has held as follows:
The order of employment itself clearly sets out the terms thereafter which makes it clear that the facility of providing training to him could be put to
an end at any time without assigning any reason whatsoever and his services could be regularised only on satisfactory completion of his training. If
these clauses are read together it is clear that he was under probation during the relevant time and if his services are not satisfactory, the same
could be put an end to. It is clear that the respondent had been appointed as a Trainee Service Technician and for a period he had to undergo the
training to the satisfaction of the appellant and if his work was not satisfactory during that period, the facility could be withdrawn at any time and he
would be regularised only on completion of his training. Thus the respondent''s services were terminated before expiry of the probationary period.
In such a case question of issue of notice before terminating the service as claimed by the respondent does not arise. Escorts'' case (supra) is
identical with the present case.
The learned counsel for the petitioner argued that in the light of the above verdicts, the second respondent cannot be considered as a permanent
employee and hence the award of the Labour Court is not legally sustainable and hence is liable to be set aside.
These judgments referred to by the counsel for the petitioner are cases of persons who were on probation; the courts held that probationers
were not entitled to be made permanent unless they satisfactorily complete their probation. The courts have upheld such termination during the
period of probation, when the probationers were found unfit by the employer. The courts have held such termination does not amount to
retrenchment within the meaning of Section 25F of the Industrial Disputes Act. But the present case is not a case of a probationer but it is the case
of an apprentice.
I had an occasion to decide this issue of an apprentice in the case of MANAGEMENT OF TI DIAMOND CHAIN LTD, MADRAS v.
PRESIDING OFFICER, SECOND ADDITIONAL LABOUR COURT, MADRAS 2003 1 LLJ 198 where I have held that the apprentice has
no vested right to get an appointment immediately after the completion of the period of apprenticeship training. Merely because the apprentice was
allowed to work just like a regular employee he does not become a regular employee. Further where the standing orders duly registered contained
the provision for training the apprentices, the Apprenticeship Act has no application. Therefore the petitioner does not have a right to get
permanent status on the ground that he worked for 240 days within a period of one year as per the provisions of Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen) Act, 1981. In the present case, the Standing Orders of the company is duly
registered; it provides for giving training for apprentices. Hence the Apprenticeship Act has no application to the present case.
But the Labour Court has erroneously held the contract of apprenticeship is ab initio void and is not legally sustainable. The finding of the
Labour Court is contrary to the decisions of the Supreme Court as well as of this court. It is not legally sustainable and therefore it is liable to be
set aside and hence it is set aside.
Accordingly the writ petition is allowed.