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Judgment
Tejinder Singh Doabia, J.—The petitioner is challenging an award by the Industrial TribunalcumLabour Court, Jammu and Kashmir,
whereby respondent Kuldeep Raj was treated as a Workman and he was ordered to be reinstated with full back wages along with other benefits.
It is this award which is subject matter of challenge in this petition.
The petitioner submits that the respondent No. 3 was an apprentice and the terms and conditions of his tenure are to be governed by
Apprentices Act of 1961 (hereinafter referred to as the Act). It is submitted that the petitioner came to be appointed as a Apprentice for the first
time on 3rd June '86. An agreement, in this regard was executed. This has been placed on record as annexure `C'. This tenure as Apprentice was
further extended upto 30th March, '87. Again on 30th June '87 with increase in the monthly stipend, the tenure was extended vide annexure D.1,
D.2 and D.3. It is further stated that as respondent No. 3 was having his residence at a distant place, he expressed his inability to continue with the
petitionerCompany. Ultimately, an order terminating the apprenticeship came to be passed. It is this termination of arrangement which was subject
matter of challenge before the Industrial Tribunal. The Tribunal has recorded a finding that respondent No. 3 having completed more than 240
days of continuous service with the petitioners, therefore, he was entitled to reinstatement and also back wages. It is this order which is subject
matter of challenge in this petition.
The petitioner submits that the Industrial Tribunal had no jurisdiction to entertain the dispute as respondent No. 3 did not answer the description
of term `workman' as envisaged by the Industrial Disputes Act of 1947. Reliance is placed on two decisions of the Supreme Court reported as
AIR 1985 SC 275, Narender Kumar v. State of Punjab and AIR 1976 SC 66, The Employees State Insurance Corporation and Anr. v. The Tata
Engineering and Co. Locomotive Co. Ltd. and Anr. What is sought to be urged is that in the event of some dispute arising between an apprentice
and the person who has engaged the person as Apprentice, then resort can be had to Section 20 of the Apprenticeship Act of 1961. It is
accordingly submitted that the Industrial Tribunal had no jurisdiction in the matter.
The learned counsel for the respondent submit that if the standing orders framed by the petitionerCompany are perused, then it becomes
apparent that even an Apprentice is a workman. Specific reliance is placed on Standing Order 2 subclause `e'. It is accordingly submitted that the
Industrial Tribunal did have the jurisdiction in the matter. At this stage, the definition of term `workman' as given in the Industrial Disputes Act be
noticed:
Workman"" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding
under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with,
or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person
i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); (u) or
ii) who is employed in the police service or as an officer or other employee of a prison; or
iii) who is employed mainly in a managerial or administrative capacity; or
iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by
the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
The term `apprentice' stands defined in the Apprentices Act, 1961. Section 2(aa) defines an `apprentice' as under :
Apprentice"" means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship.
The above is the statutory position regarding the status of apprentice and as to who is to fall within the term `workman'.
On merits, it is urged that respondent No. 3 was an efficient worker. It was for this reason, his stipend was being increased from time to time. A
perusal of the file indicates that the Apprenticeship Agreement has also been placed on the record. Clause 10 of the agreement provides ""that the
Company shall not be bound to give employment to the Apprentice Trainee on completion of training period."" It is further provided in clause 11
that this agreement is liable to be terminated with one week's notice from either side"". Annexure D.1, D2 and D.3 are the office orders indicating
the method and manner in which respondent No. 3 was appointed as apprentice and as to how his stipend was increased from time to time. The
last order is of 11th April '1987. It was the case of respondent No. 3 that there was sudden termination of apprenticeship by the petitioner on 27th
May '87.
The meaning of the term `apprentice' may now be noticed at this stage;
In the Shorter Oxford Dictionary', ""apprentice"" is defined as a `learner of craft; one who is bound by legal agreement to serve an employer for a
period of year, with a view to learn some handicraft trade etc., in which the employer is reciprocally bound to instruct him.
According to Chamber's Dictionary to serve apprenticeship means ""to undergo training of an apprentice.
In Employees State Insurance Corporation v. Tata Engineering & Locomotive Co. Ltd, (1976) I L.L.J. 81, it was observed that ""the heart of
the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the
other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the
apprentice has to be under certain rules of the discipline do not convert the `apprentice' into a regular employee under the employer. Such a person
remains a learner and is not an employee"".
Some other judicial pronouncement on the subject may also be noticed :
In Management of Tungbhadra Sugar Works (P) Ltd. v. Presiding Officer, Labour Court, (1983) Lab I.C. 1185, a Division Bench of Karnataka
High Court did take notice of the definition of term `workman'. It was at the same time observed that ""it is not sufficient that the person claiming the
status of a `workman' is an apprentice. It has to be established that he is employed in an ""industry"" to do any type of work enumerated in the
definition for hire or reward whether the terms of employment are express or implied.
In Ramesh Kumar Sharma v. State of Haryana, 1997(4) SCT 271 (P&H) , the petitioner was employed as apprentice in Public Works
Department. He had undergone training for three years. His claim for appointment was not accepted. It was observed that as there is no provision
for appointing the petitioner as Draftsman, therefore, he cannot seek any remedy in a court of law. In U.P. State Road Transport Corporation v.
U.P. Parivahan Nigam Shishukhs Berozgar Singh, 1995(2) SCT 367 (SC) , it was observed that apprentices are trainees and not workers. It was
further observed that the definition of workman as spelled out in Apprenticeship Act would be attracted in such cases. Again in another case Jagbir
Singh v. Haryana State Electricity Board, 1996(1) SCT 763 , it has been observed that an apprentice cannot be outrightly ignored while filling up
the post. He has to be given some consideration but it cannot be said that the appreciate is entitled to claim appointment as a matter of right. See
also Md. Tazuddin v. Managing Director, Cooperative Electric Supply Society Ltd. Karimnagar, 1998(1) SCT 9 (AP). However, where after the
completion of Apprenticeship training, a person is appointed and then his services are terminated, he may be well within his rights to contend that
the provisions of Industrial Disputes Act may be attracted and he can seek remedy under the Act. Such was the view expressed in M. Raghuram
v. The Labour Court, Hyderababd, 1994(4) SCT 118.
From the decisions noticed above, it becomes apparent that an apprentice though brought within the definition of term `workman' in the Industrial
Disputes Act but he is not entitled to all the benefits of the aforementioned Act. He continues to be an apprentice and his claim has to be
determined by taking into consideration his this status.
There is another aspect of the matter. If a person who claims benefit of industrial legislation and if a particular remedy is provided in a particular
legislation, then that legislation has necessarily to be resorted to for redressable of grievance. Reference in this regard be made to the decision of
the Supreme Court reported as AIR 1979 SC 1981, State of Punjab v. the Labour Court Jallundur and Ors. In the above case, the workman was
claiming gratuity under the Payment of Gratuity Act of 1972. Instead of proceeding under the aforementioned Act, an application was preferred
under Section 33C(2) of the Industrial Disputes Act. The Supreme Court of India was of the view that the Payment of Gratuity Act was complete
Code covering all the essential features, of a scheme for payment of gratuity. What was said by the Supreme Court is being reproduced below:
It is apparent that the Payment of Gratuity Act enacts a complete Code containing detailed provisions covering all the essential features of a
scheme for payment of gratuity. It creates the right to payment of gratuity, indicates when the right will accrue, and lays down the principles for
qualification of the gratuity.......
Upon all these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the
Payment of Gratuity Act must be taken under that Act and not under any other.
I am of the opinion that the aforementioned judgment would he fully applicable to the facts of this case under Apprenticeship Act, 1961. If
there is any dispute between the employer and an Apprentice, then this is to be resolved in terms of Section 20(2) of the Act. For facility of
reference, it is being reproduced below :
Any person aggrieved by the decision of the Apprenticeship Adviser under subsection (1) may, within thirty days from the date of communication
to him of such decision, prefer an appeal against the decision to the Apprenticeship Council and such appeal shall be heard and determined by a
Committee of that Council appointed for the purpose.
In view of the above and in view of the fact that both the parties admit that the status of respondent No. 3 was of an Apprentice, therefore,
remedy, if any to the respondent No. 3, was under the Act of 1961. No doubt, the standing orders do mention that the Apprentice would be a
workman but then this will not take the dispute out of sweep of content of Apprenticeship Act of 1961.
The learned counsel for the petitioners have placed reliance on AIR 1985 SC 275 with a view to contend that unless and until the employer
agrees to give employment after the period of Apprenticeship agreement, no direction could be given for reinstatement.
This aspect of the matter is left as it is. As there is a specific procedure prescribed for determining the rights and liabilities of the parties under
the Act of 1961, therefore, the Industrial Tribunal would have no jurisdiction under the Industrial Disputes Act of 1947.
This petition is accordingly allowed. The parties are left free to pursue the matter before the Authorities constituted under the Act of 1961.
Disposed of accordingly.