D.K. Seth, J. - (1.) Shiv Kant son of Sri Kedar Nath, respondent No. 2 in the writ petition, was engaged as a Trainee in the petitioner's factory by order dated 24th August 1983. Respondent No. 2 continued as trainee till 31st March, 1984. He was then appointed as a helper in a temporary capacity on 1st April, 1984. During the training period, a stipend of Rs. 5/- per day was allowed. Now from 10th January, 1985 till 15th April, 1985, there was strike in the petitioner's establishment. The respondent No. 2 did not come back and join his duty after the strike was over. He had worked only for 204 days as a temporary workman between 1st April 1984 till 10th January 1985 as has been specified in Ext. E/14/4 before the learned Labour Court which is Annexure '2' to the writ petition. Subsequently the respondent No. 2 raised a dispute that his service was illegally terminated on 15th February 1985 out of which Adjudication case No. 128 of 1985 was registered. By award dated 27th September 1990, it was held that the service of respondent No. 2 was illegally terminated in violation of Section 16-N of the U.P. Industrial Disputes Act without giving any retrenchment benefit while holding that the respondent No. 2 had worked for more than 240 days within a period of preceding 12 months and directed reinstatement of the workman. It is this Award which is being impugned in the present writ petition.
(2.) Mr. Krishna Murari, learned counsel for the petitioner, contends that the learned Labour Court had illegally held that the period spent in training shall be included for the purpose of calculating the period of 240 days working during the preceding 12 months. He also contends that the calculation attempted to be made by the Labour Court that the workman had worked for 240 days in the manner as indicated in the Award is perverse. According to him, the definition of 'workman' given in Section 2(z) in the U.P. Industrial Disputes Act, hereinafter referred to as 'the U.P. Act' includes apprentice within the meaning of Section 2(a) of the said U.P. Act. The workman not being apprentice within the meaning of Section 2(a) which is an admitted fact, he cannot be treated to be a workman during the period he was a trainee and, therefore, the period of training is to be excluded. If the said period is excluded, then the workman cannot be said to have worked for more than 240 days as calculated in Annexure No. '2' to the writ petition. He relies on the decision in the case of Burmah Shell oil Storage and Distributing Company of India Ltd. v. The Burmah Shell Management Staff Association, AIR 1971 SC 922 and contends that in order to be a workman the employee must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such a nature, he would not be a workman.
(3.) Miss Suman Sirohi, learned counsel appearing for the respondents who have been substituted in place of respondent No. 2 since deceased, led by Mr. K.P. Aggarwal, contends that the period of training as apprenticeship in the facts and circumstances of the present case has been rightly included for the purpose of calculating 240 days by the learned Labour Court. Even then the Labour Court has come to a finding that even extending the period alleged to have been spent as Apprentice, the respondent No. 2 has worked for 240 days. This finding being a finding of fact cannot be interfered with in exercise of writ jurisdiction. She contends further that in order to be an Apprentice as expressed in the definition of 'workman' in Section 2(z), he must be an Apprentice as defined in Section 2(aa) of the Apprentice Act, 1961 and in any other case he would be a workman inasmuch as the Apprentice Act being a special statute, the definition of 'Apprentice' given in Section 2(a) of the U.P. Act would yield to the special statute being the Apprentice Act. An apprentice other than those as defined in the Apprentice Act are to termed as workman. Alternatively she submits that in the present case, the respondent No.2 is no an apprentice within the meaning of Section 2(a). Since the workman did not satisfy the test laid down in the definition of Section 2(a) he cannot be said to be an apprentice inasmuch as if the workman in not an apprentice within the meaning of Section 2(a), he is a workman since the U.P. Act does not conceive of any other kind of apprentice. According to her, after the legislation of the Apprentice Act, 1961, which is a Central Act, the definition of 'apprentice' in Section 2(a) of the U.P. Act stands eclipsed. She contends further that if there is not agreement, in that event, the workman cannot be called an apprentice. In view of the provisions contained in Section 6-N of the U.P. Act, according to her, in the application of Section 6-N, an apprentice is also not excluded.;