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Judgment
K. Raviraja Pandian, J.—The writ petition in W.P. No. 4030 of 1997 is filed for the relief of issuance of a writ of certiorari to call for the
records of the Labour Court, Vellore, made in I.D. Nos. 982, 985,986, 1109, 1111 to 1114, 1053 to 1057, 1127 to 1130, 1132, 1136, 1157,
1159 to 1165, 1167, 1169, 1170, 1178, 1179, 1201 to 1203, 1205, 1025 and 1048 of 1993 and to quash the award, dated September 25,
1996, in so far as grant of compensation is concerned.
The writ petition in W.P. No.7026 of 1997, is filed for issuance of a writ of certiorarified mandamus to call for the records relating to the
impugned common award, dated September 25, 1996, made by the Labour Court, Vellore, in I.D. Nos. 982, 985, 986, 1026, 1111 to 1114,
1053 to 1057, 1127 to 1130, 1132, 1157, 1159, 1160, 1161, 1163, 1164, 1166, 1167, 1169, 1179 and 1201 to 1203 and 1205 of 1993,
quash the portion of the common award denying the petitioners'' reinstatement, back wages and other benefits and consequently direct the
management to reinstate the petitioners with continuity of service, back wages and other attendant benefits.
These two writ petitions are directed against the common award, dated September 25, 1996, made in I.D. Nos. 982 of 1993 etc., batch one
by the management and the other by the workmen, as against that position of the award went against each of them.
The facts of the case in brief are as follows:
The management is a company incorporated under the provisions of the Companies Act engaged in the manufacture of tyres, tubes, flaps, etc., and
have a scheme under which they recruit persons for the purpose of imparting training and chose among themselves the best talent as per the
requirement of man power and absorb in the regular cadre. Nine workmen were appointed as apprentice and 30 workmen were appointed as
probationers. The period of apprenticeship/ probation were extended for some time. At the time of non-employment of the workmen, the
apprentices were in continuous service for a period between 1 year and 21/2 years and the probationers were in continuous service between 21/2
years and 51/2 years, which included the period of apprenticeship and also extended period of probation. The Certified Standing Orders of the
management marked as Exhibit Ml and the Settlement, dated March 17, 1989, entered by the management with the union marked as Exhibit M2
provided for engaging persons as apprentices. In respect of the 9 apprentice workmen, they were relieved after completion of the period of
apprenticeship. Out of the remaining 30 workmen, who were probationers, 14 of the probationers were determined at the end of the probation
period and the remaining 16 probationers were determined at the end of their extended probation period. The apprentices and probationers raised
disputes in respect of their non-employment, which culminated in the above batch of industrial disputes before the Labour Court.
Before the Labour Court, the contentions raised by the workmen were that the non-employment of the workmen would amount to retrenchment
u/s 2(oo) of the Industrial Disputes Act. As no notice or pay in lieu of notice has been given and the statutory compensation u/s 25-F has not been
paid, their non-employment is invalid in law. The other point of mala fide and victimisation on the part of the management has also been raised on
the ground that the workmen formed union and immediately on such formation of union, the workmen were denied employment on the guise that
the period of apprenticeship, the extended period expired and the probation period and extended probation period also expired. The very
appointment as apprentices and probationers itself is only a ruse to circumvent Section 2(oo) of the Industrial Disputes Act.
The Labour Court after an elaborate consideration of the facts and also the evidence, both oral and documentary adduced before it, ultimately
found that in respect of I.D. No. 1026 of 1993, the petitioner was terminated on the ground of misconduct before the end of his period of
apprenticeship. The termination was invalid as there was no enquiry conducted to prove the misconduct and further considered whether the
petitioner could be allowed to continue the remaining period of his apprenticeship or he could be awarded compensation, and on such
consideration, the Labour Court thought it fit to award a compensation in a sum of Rs. 20,000 in favour of the workman Ravi in respect of I.D.
No. 1026 of 1993. In respect of rest of the apprentices/probationers, the Labour Court recorded a finding that the remaining
apprentices/probationers were not entitled to the relief of reinstatement with back-wages and other attendant benefits. However, having regard to
the fact that the apprentices were in service of the management for a period between one and two and half years and the probationers were in
service for a period between 21/2 years and 51/2 years including the period of apprenticeship thought it fit to award compensation at the rate of
Rs. 10,000 for each of the workmen, who put in service of two years and below, Rs. 15,000 to each of the workman, who put in service of two
to three years and Rs. 20,000 to each of the workmen, who put in service of 3 to 4 years and Rs. 25,000 to those, who put in service of above
four years. That order is put in issue in the above said two writ petitions.
Sri Sanjay Mohan, learned counsel appearing for the management contended for some time that the Labour Court having found that the
workmen were not entitled to reinstatement, consequent back-wages and other attendant benefits and the non-employment on the expiry of the
period of apprenticeship and probation was right, should not have ventured in awarding compensation to the workmen, which is against the very
finding recorded by the Labour Court, however submitted that the management is not very serious in their contention as aforesaid on his advice to
give a quietus to the issue.
However, Sri Prakash, learned counsel appearing for the workmen very strenuously contended that the appointment of the workmen as
apprentices/probationers is only a ruse to get over Section 2(oo) of the Industrial Disputes Act. It is not the case of the management that there is
no work for the workmen, but the non-employment was made on the expiry of their period of apprenticeship in respect of the apprentices and the
probation in respect of the probationers, stating that the management is not satisfied with the performance of the apprentice/probationer workmen.
Therefore, the Labour Court ought to have investigated the matter further as to whether there is any need for appointment of the workmen as
apprentices or probationers workmen so as to find out whether the management has indulged in unfair trade practice by giving the nomenclature to
the regular employees as apprentices/probationers, thereby keeping them unconfirmed, though they were doing similar work as that of the
permanent employees for a continuous period of long years. He further contended that the finding of the Labour Court that the workmen were not
determined on a single day, but the determination was spread over for a period of two years as evidenced under Exhibit M7, the termination
orders, is a perverse finding based on no materials. He further submitted that the very same management was indicted by this Court for its attitude
of appointing workers as apprentices and probationers for quite long number of years and determining their services when they formed union at
their Pondicherry unit. Hence, in this case also, such an appointment of the workmen as apprentices/probationers should be held to be to
circumvent the provisions of Section 2(oo) of the Industrial Disputes Act and the Labour Court misdirected itself in not venturing and give a finding
to that point.
On the contrary, Sri Sanjay Mohan refuted all the arguments of Sri Prakash by contending that the argument advanced questioning the
correctness of their appointment as apprentices/probationers is a misplaced argument before this Court. Their appointment as
apprentices/probationers has not been challenged or questioned till their services were determined on efflux of time. Having accepted the
appointment as apprentices/probationers, and served as such, now they cannot, in writ petition, question the correctness of the appointment order.
He further contended that the Certified Standing Orders of the company and the Settlement arrived at by the company with the union provided for
such an appointment as apprentices and probationers. When such is the position, the workmen cannot wriggle out and contend otherwise about
their appointment With regard to mala fide and victimisation, the learned counsel submitted that there is absolutely no material, whatsoever, made
available before the Labour Court to sustain the point of mala fide and victimisation on the part of the management. In the absence of any factual
foundation, the finding recorded rejecting such contention by the Labour Court is very well in accordance with law.
I heard the arguments of the learned counsel on either side and perused the material on record,
As regards the apprentice workmen, who are nine in number, though the modus of appointment is very seriously disputed by Sri Prakash, it is
an admitted fact that they were taken apprentices by orders issued by the respondent. A very clear factual finding has been recorded by the
Labour Court that in the order of appointment, it was clearly stated that the appointments were for a fixed period of time. The management is at
liberty to extend the apprenticeship period if required. There was no guarantee that at the end of the period of apprenticeship, the workmen would
be absorbed as probationers. Likewise, out of the 30 probationers, the probation period of 14 workmen came to an end by efflux of time and the
balance 16 were determined at the end of the extended term of probationary period. Like that, the probationers were engaged for a specific
period as per the Certified Standing Orders of the company and their period of probation came to an end by efflux of time. Hence, the question of
complying with Section 25-F of the Industrial Disputes Act does not arise as the determination comes within the provisions of Section 2(oo)(bb) of
the Industrial Disputes Act.
The contention of mala fide and victimisation raised by Sri Prakash was also not borne out by any materials except a mere statement that the
workmen formed union. Here again, the Labour Court has recorded a finding to the effect that the workmen have not proved the mala fide and
victimisation on the part of the management for their union activities. No evidence was adduced to show as to how the workmen were victimised.
The workmen were only apprentices and probationers. The Labour Court further gave a reason to the effect that the question of victimisation does
not arise as the management would not gain anything by terminating the workmen as they were neither workmen nor office-bearers or even
committee members of the union, which union still continues to exist. The further finding of the Labour Court that the workmen were not
determined on a single day, however, such a determination was spread over for a period of two years as per Exhibit M17, termination order has
been characterised by Sri Prakash as a perverse finding by pointing out the dates of termination of the workmen, which were given in the annexure
in the award of the Labour Court. Of course, the period of determination spread over from August 1992 to October 1992, i.e., for two months
and not two years as stated in the award. However, I am of the view that it would not be a determinative factor so as to come to the conclusion of
victimisation against the management. As and when the period of apprentice and probation or the extended periods were expired, the workmen
were determined and the said fact was not disputed, rather cannot be as it is borne out of records. Hence, the usage of the words ""the
determination was spread over for two long years"", though such determination was spread over for only two months, would not by itself prove the
act of victimisation on the part of the management as the determination was on the expiry of the period and the extended period and cannot be said
to be perverse.
Sri Prakash, learned counsel appearing for the workmen relied heavily, on a decision of this Court in the case of M.R.F. Employees Union Vs.
The Management of MRF Ltd., Madras, The Chairman, MRF Ltd., Madras, The Vice Chairman MRF Ltd., Madras, The Executive Director,
(Technical and Manufacturing) MRF Ltd., Madras, Senior General Manager, MRF Ltd., Madras, The Production Manager, MRF Ltd., Madras,
Personnel and Human Resources Manager, Tiruvotriyur Plant, Chennai and State of Tamil Nadu, which is also a case against, the Pondicherry unit
of the present management. That was a case in which much of the concentration was made by this Court as to the maintainability of the writ
petition straightaway against the termination of the apprentices and probationers. On facts, it was proved before the Court that the Pondicherry unit
commenced production more than four years prior to the dispute and was producing about 2000 tyres per day with full work force till the dispute
arose in that case on October 3, 2001; that the establishment did not have even a single permanent workman on its rolls. On that proved fact, the
Court observed that it was rather strange that the management would keep under observation as apprentices and probationers endlessly without
any service guarantee and without any single permanent employee and at the same time achieve the production level of 2000 tyres per day. But the
facts of the present case are not similar to the facts of the cited case. It is admitted by the workmen in the affidavit filed in support of the writ
petition itself that the management in the present case is having more than 500 permanent workers on its rolls and 100 persons were working as
apprentices/probationers. Apart from that, this Court cannot also sit on the wisdom of the company to give training for production of high quality
tyres with precession with the use of sophisticated machinery and new gadget. Every company competing in the trade would necessarily have a
research and development wing for improving their product with improved technology. Hence, it cannot be said that the giving of training to the
apprentices and keeping them under watch under probation period is only imaginary and to circumvent Section 2(oo) of the Industrial Disputes
Act. In the very same judgment, with which reliance has been made by Sri Prakash, it was observed as follows:
It is no answer to say that the respondent-company is adhering to all the requirements under various labour legislations in their other units
elsewhere in the country and have also recognised trade unions in those units. We are now concerned with the state of affairs and facts relating to
the Pondicherry unit.
Hence, the said decision rendered on the basis of the peculiar facts of the Pondicherry unit of the management cannot be straightaway taken for
deciding the issue in this case. It is fundamental that each case has to be decided on its own facts and merits thereon. Hence, the judgment of the
abovesaid case would not improve the case of the workmen in the facts and circumstances of the present case.
Sri Prakash, learned counsel appearing for the workmen also relied on another judgment of Nagpur Bench of Bombay High Court in the case
Dilip Hanumantrao Shirke and others Vs. Zilla Parishad Yavatmal and others, to contend that Sub-clause (bb) of Section 2(oo) should be
construed very strictly. That was a case in which the workmen had the qualification for appointment to the post of Sanitary Inspectors and they
were appointed on a stipulated condition that their appointment as Sanitary Inspectors would be for 11 months ending with November 30, 1986,
or for such further period or till selected list of candidates is received by the office, but were terminated with effect from November 30, 1986
afternoon. In those factual matrix of the case, the Court held that a stipulation in the contract that the employment would be for a specific period or
till completion of the work may also fall within the scope and ambit of Sub-clause (bb) of Section 2(oo). But if the employer resorts to contractual
employment as a device to simply take it out of the principal Clause (oo) irrespective of the fact that the work continues or the nature of duties
which the workman were performing were still in existence, such contractual engagements would have to be tested on the anvil of fairness,
propriety and bona fides. A qualified Sanitary Inspector cannot be compared with the workmen, who requires special skills for manufacture of
precession radial tyres. Further, the additional factor is, the appointment order of the present workmen as apprentices and probationers and
conditions attached thereto would make an ocean of difference between the present case and the facts of the Bombay High Court case.
It is well settled by a catena of decisions of the Supreme Court, one for the sake of reference is M/s. Oswal Pressure Die Casting Industry,
Faridabad Vs. Presiding Officer and Another, , that when an employee terminates the service of a probationer, it is not open to the High Court to
sit in appeal over the assessment made by the employer of the performance of the employee. Once it is found that the assessment made by the
employer is supported by some material and was not mala fide, it is not proper for the Court (sic) to interfere and substitute its satisfaction. In the
present case, such a material for arriving the satisfaction is available in the form of Exhibit M3 series, the personal files (sic) of the workmen that
has been signed by different Supervisors covering the period well prior to the date of termination of service. That Exhibit M3 series would show
that the services of the workmen during the period were not up to the mark from the point of view of efficiency. This basic fact stares at the
contention of the workmen that the non-employment was mala fide and victimisation.
For the foregoing reasons, I am of the view that the workmen have not made out any case, which requires interference with the award of the
Labour Court non-suiting the workmen for the relief of reinstatement and other consequential reliefs. As, already stated, as the award of
compensation in respect of the workmen has not been seriously disputed by the management, at the correct advice of the learned counsel
appearing for the management, the writ petition filed by the management has become inconsequential.
In the result, both the writ petitions are dismissed. However, there is no order as to costs.
This Court by its order, dated October 5, 1999, in W.M.P. Nos. 6849 and 1971 of 1999 pending the writ petitions, directed the management
to deposit the entire compensation amount awarded within a period of eight months from the date of receipt of copy of the order before the
Labour Court. On such deposit, each of the workmen was permitted to withdraw Rs. 5,000. The Labour Court was further directed to invest the
balance amount in one of the nationalised banks initially, for a period of three years and it can be renewable for a further period of three years
thereafter. The workmen were permitted to withdraw the accrued interest once in six months from the bank. Now that the writ petitions are
disposed of as above, the workmen are hereby permitted to withdraw the remaining amount, which is directed to be deposited in the nationalised
bank. W.M.P. No. 11511 of 1997 is closed.