- (1.) Heard Sri Komal Mehrotra, learned counsel for the petitioner and learned Standing Counsel. Although the respondent no. 2 is duly represented, none has appeared on his behalf even when the matter is taken up in the revised call.
(2.) The petitioner assails the validity of the Award rendered by the Labour Court on 15 February 2001. The Award was rendered in the context of a reference made by the appropriate government in respect of the alleged termination of service of the respondent no. 2 with effect from 24 March 1983. Although the termination is stated to have been effected in 1983, a reference in that respect was made by the appropriate government on 14 July 1997. One of the principal objections which was taken to the claim by the petitioner was that the respondent no. 2 was only engaged as an Apprentice and consequently the provisions of the U. P. Industrial Disputes Act, 1947 would have no application since her engagement would be governed exclusively by the provisions made in the Apprentices Act , 1961. The aforesaid objection has been overruled by the Labour Court by merely holding that although a photocopy of the stipend sheets had been placed on the record, the originals thereof were not produced. In the considered view of this Court, the view so taken is clearly technical and pedantic. The Court in any case finds itself unable to sustain the view so taken since if the engagement of the respondent no. 2 was as an Apprentice, the 1947 Act itself would have had no application and the Labour Court was clearly denuded of all jurisdiction and authority to adjudicate upon the claim. Sri Mehrotra rightly places reliance in this regard upon the decision rendered by the Supreme Court in U. P. SEB v. Shiv Mohan Singh , (2004) 8 SCC 402 where the following observations came to be entered: "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 made 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 apprenticeship 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 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 the definition of "workman" given in Section 2(r) also emphasises that it will not include apprentice. Section 20 also lays down how a dispute arising under the 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 upon 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 period of apprenticeship. It is only if the terms of the contract of the apprenticeship lay 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 the apprentice to serve that employer if there is no such stipulation to this effect. So it is a 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. 56. It is also necessary to mention here that the definition of the word "workman" as given in Section 2(z) of the U. P. Industrial Disputes Act, 1947 and Section 2(s) of the Industrial Disputes Act, 1947 includes apprentice. But the expression appearing in Section 2(z) of the U. P Industrial Disputes Act and the Industrial Disputes Act , 1947 are not applicable to the apprentices appointed under the Apprentices Act , 1961. The Apprentices Act is a code in itself and it clearly stipulates that in Section 2(aa) apprentice means a person who is undergoing apprenticeship training in pursuance of contract of training and the workers are employed for wages for work done by them. Section 18 clearly mentions that the apprentices are not workmen and "the provisions of any law with respect to labour shall not apply to or in relation to such apprentice". Therefore, reading of definition of "apprentice" in Sections 2(aa) and 2(r) read with Section 18 of the Apprentices Act leaves no manner of doubt that this Act which is a special Act does not cover the workman and it precludes the application of any other labour laws i. e. U. P. Industrial Disputes Act and Industrial Disputes Act , 1947. When both these Acts are not applicable then the Labour Court/Industrial Tribunal will not have any jurisdiction to entertain any dispute arising therefrom. The application of the U. P. Industrial Disputes Act, 1947 and the Industrial Disputes Act , 1947 automatically stands excluded. 57. In this connection reference may be made to a decision of the Rajasthan High Court in the case of Hanuman Prasad Choudhary v. Rajasthan SEB [1986 Lab IC 1014 : (1986) 2 LLN 976 (Raj)] wherein Justice S. C. Agrawal (as he then was) observed thus: (Lab IC pp. 1014-15) "An apprentice governed by the Apprentices Act is not a workman for the purpose of the Industrial Disputes Act and the provisions of the Industrial Disputes Act would not be applicable to him. There is apparent conflict between the provisions of Section 2(s) of the Industrial Disputes Act and Section 18 of the Apprentices Act inasmuch as Section 2(s) postulates that an apprentice is a workman to whom the provisions of Industrial Disputes Act would be applicable whereas Section 18 of the Apprentices Act declares that an apprentice governed by the Apprentices Act is not to be treated as a workman and the provisions of the Industrial Disputes Act would not be applicable to him. The conflict between the two laws can be resolved by applying the principle of harmonious construction. The Apprentices Act is not an exhaustive Act to cover all types of apprentices because in view of the definition of term 'apprentice' as contained in Section 2(aa) of the Apprentices Act, it is applicable only to persons who are undergoing apprenticeship training in pursuance of the contract of apprentices 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 that view of the matter, it can be said that for the purpose of Section 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 Section 2(s) of the Industrial Disputes Act and would not be governed by the provisions of the Industrial Disputes Act . Apart from the principle of harmonious construction, the Apprentices Act , 1961 being a subsequent particular law as compared to ID Act , 1947 which is prior and general, the provisions of the Apprentices Act , 1961 would prevail over those of ID Act . " 59. Similarly, the Single Bench of the Allahabad High Court in the case of U. P. SEB v. P. O. Labour Court, Kanpur [(1998) 78 FLR 511 (All)] observed as under: (FLR p. 515, para 16) " Section 18 of the Act provides that an apprentice shall be a trainee and not a worker and the provisions of any law with respect to labour shall not apply to or in relation to such apprentice. Respondent 2 was thus not a workman and no dispute could be referred to the Labour Court and the period of his training having come to an end, the action of the petitioner employer in not engaging him any further was in accordance with the contract entered into between the parties and the provisions of the Act. " 61. In view of the conflicting decisions of the various High Courts, we are of the opinion that the view taken by the Rajasthan, Kerala and Allahabad High Courts appears to be in consonance with the view taken by us and we do not agree with the view subscribed by the High Courts of Gujarat and Madhya Pradesh. "
(3.) Accordingly and for this reason alone, the impugned Award is rendered unsustainable. The writ petition is accordingly allowed. The impugned Award dated 15 February 2001 is consequently quashed. ;