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Judgment
Ajay Rastogi, J.—Instant intra-court appeal is directed against order of the ld. Single Judge dt. 28.02.2006 confirming award dt. 04.03.2005 passed by the ld. Labour Court, Bharatpur answering the reference in affirmative terms holding that the respondent was not engaged as Apprentice Trainee and being workman his services have been terminated vide order dt. 16.03.1996 without due compliance of the mandate of S. 25F of the Industrial Disputes Act, 1947, directed the appellant-employer to reinstate the respondent-workman with continuity of service along with 40% back wages.
Brief facts of the case are that the respondent passed diploma (Civil) in the year 1993 and sent his application to the Secretary, Rajasthan Housing Board, Jaipur with the request that for seeking employment in future, there is always a condition to work as an Apprentice and since few of his batch-mates are working as Apprentice Trainee in the Alwar office of Rajasthan Housing Board, his application may also be considered for providing Apprentice Training to him. His application was examined by the Secretary, Rajasthan Housing Board, Jaipur and vide office order dt. 11.01.1995 Engineering Graduates/diploma holders were allowed to be engaged as Apprentice Trainee for one year against the notified vacancies on a fixed stipend of Rs. 1,128/- per month for degree holder; and Rs. 800/- per month for diploma holders, from the date of their joining and the Local Officer was directed to execute contract, as required by the Assistant Central Apparent. Adviser Extension Centre Incharge, Board of Apprenticeship Training, Jodhpur before granting permission to join and no TA and DA will be paid and liable for the above training, as per the Rules.
In compliance of order of Secretary of the Board, the Resident Engineer, Alwar passed order on 19.01.1995 engaging the respondent as Apprentice Trainee for a period of one year from the date of his reporting on duty i.e. 16.01.1995. After the respondent completed his Apprentice Training in the office of Rajasthan Housing Board, Alwar, a certificate was issued by the Resident Engineer, Rajasthan Housing Board, Alwar indicating that the respondent had worked as Apprentice Trainee, Diploma (Civil), from 16.01.1995 to 15.01.1996. However, without there being any order of extension or offer of appointment in favour of the respondent, it was further certified that he worked as an employee till 15.03.1996 and to support thereof, no documentary evidence was on record, in reference to which, as alleged, he was allowed to continue in service or any salary or wages was paid to the respondent, for the period he worked after completion of period of Apprentice Training on 15.01.1996.
The respondent treating it to be his illegal retrenchment, approached the Conciliation Officer and a reference was made by the State Government vide its notification dt. 29.05.1997 which reads ad infra:--
The ld. Labour Court, after examining the available documentary evidence on record, arrived to the conclusion that u/S.4 of the Apprentices Act, 1961 a person who is engaged as an Apprentice to undergo apprenticeship training in a designated trade has to enter into a contract of apprenticeship with the employer and no such contract/agreement, if executed/entered into by the parties, has placed on record by the employer and while proceeding on the said premise, arrived to a conclusion that the period during which the respondent had worked in the office of Rajasthan Housing Board, Alwar cannot be considered as an ''Apprentice'' under the Apprentices Act, 1961 and recorded a finding that he was a ''workman'' as defined u/S. 2(s) of the Industrial Disputes Act, 1947 and had worked for more than 240 days in the preceding twelve months of the alleged date of termination and the condition precedent for retrenchment, provided u/S. 25F of the Act, 1947, as mandated, has not been complied with and further observed that such retrenchment being void, directed the appellant-employer to reinstate the respondent-workman with continuity of service along with 40% back wages and on the writ petition being preferred by the appellant-employer, the ld. Single Judge in the order impugned, without due appreciation of documentary evidence available on record, was not inclined to interfere in the finding recorded in the impugned award and dismissed the writ petition vide order dt. 28.02.2006 which is subject matter of challenge in the instant intra-court appeal.
Counsel for appellant vehemently contended that three documents which were exhibited and part of the record are self-explicit to support that the respondent was engaged as Apprentice Trainee on a stipend of Rs. 800/- per month under the Act, 1961 and contract must have been executed, as directed by Secretary of the Board vide order dt. 11.01.1995 but that was not available, as such, could not be placed on record but mere absence of contract which the Board was unable to place on record, the very process initiated on the application submitted by the respondent and the documentary evidence available on record, for his engagement as Apprentice Trainee, could not be brushed aside and nothing in rebuttal has been placed on record by the respondent, in these facts and circumstances the finding recorded by the ld. Labour Court holding that the respondent was not an Apprentice engaged under the Act, 1961 is wholly perverse and the ld. Single Judge has failed to consider the documentary evidence which was on record and dismissed the writ petition without assigning any cogent reasons and it requires interference by this court.
Counsel for the respondent, on the other hand, submits that from the material which came on record, the ld. Labour Court recorded a finding of fact holding that he was not an Apprentice under the Act, 1961 in fact was a Workman u/S. 2(s) of the Act, 1947 and indisputably has worked for more than 240 days in preceding 12 months and the employer-Board failed to comply with the pre-conditions, contemplated u/S. 25F of the Act, 1947 and the only consequence was his reinstatement with full back wages which the ld. Labour Court, in the facts and circumstances of the instant case, arrived to award reinstatement with continuity of service along with 40% back wages and after being confirmed by the ld. Single Judge, there appears no reasonable justification to interfere in the finding of fact recorded by the ld. Labour Court and confirmed by the ld. Single Judge in the impugned judgment under limited scope of supervisory jurisdiction of this court u/Art. 227 of the Constitution of India.
Counsel further submits that at the time when the instant appeal came up for admission, the submission made and recorded by the Division Bench in its order dt. 15.02.2007 remain confined to whether the ld. Labour Court committed error in directing reinstatement or it should be substituted by adequate compensation in lieu thereof, the impugned award of the ld. Labourt Court was stayed and it is not now open for the appellant-Board to argue on merits of the matter and not open for re-appreciation of the finding which has been recorded by the ld. Labour Court and confirmed by the ld. Single Judge under order impugned.
We have heard counsel for the parties and with their assistance perused the material available on record. We have also noticed all the three documents which were annexed and exhibited before the ld. Labour Court and are also part of the present record and not disputed by the respondent. The application sent by the respondent is reproduced ad infra:--
It will also be relevant to quote the office order dt. 11.01.1995 passed by Secretary of the Board, engaging the respondent and two others as Apprentice Trainees on their request made on a monthly stipend of Rs. 1,128/- and Rs. 800/- as per qualifications.
"No.P1(1)Karmik/Apprent/12/04/2059
Dated 11/1/95
OFFICE ORDER
The following Engineers Graduate//Diploma Holder (Apparent) are hereby engaged for training in the board for one years against the vacancies notified under section (3-4) of..............paid fixed amount @1128/-(Degree Holder) and Rs. 800/- (Diploma holders)per month as stipend as specified from the date of their joining.
The Dy. Housing Commissioner are directed to execute the agreement as required by the Asstt. Central Apparent. Adviser Extension Centre incharge, Board of Apprenticeship Training, Jodhpur before joining their training. No TA and DA will be paid and liable for the above training as per rules.
This bears the approval of HO, RHB.
Sd/- Secretary.
C.C. to
PS to Chairman/Housing Commissioner, RHB, Jaipur.
PA to CE/ACR-1/II/Dy.PA/and CAD,.... Jaipur.
Dy.H.O. JC-II/III, Jaipur
Gulshan Kumar Bhatia
Dy. Central App. Advisor, C/o Director Tech. Education, Residency Road, Jodhpur.
Master File.
Sd/- Secretary."
It will also be relevant to quote the office order passed by the Resident Engineer, Alwar dt. 19.01.1995, which reads ad infra:--
We find that the respondent initially submitted his application to Secretary of the Board, for his engagement as Apprentice Trainee and requested that whenever he will submit application in future for employment, Apprentice Training is one of the condition precedent and since few of the students are undergoing Apprentice Training at Alwar office of the Board, his application may also be considered for providing Apprentice Training to him and his application along with bio-data came to be examined by ''Secretary of the Board and vide office order dt. 11.01.1995, the respondent along with two others were engaged for Apprentice training in the board for one year against the notified vacancies on a fixed stipend of Rs. 1,128/- per month for degree holders; and Rs. 800/- per month for diploma holders and also directed the Dy. Housing Commissioner to execute contract, as provided by the Assistant Central Apparent. Adviser Extension Centre Incharge, Board of Apprenticeship Training, Jodhpur before joining their training. In compliance thereof, the order came to be passed by the Resident Engineer, Alwar dt. 19.01.1995 and the respondent was engaged as Apprentice Trainee for a period of one year and indisputably worked for one year in compliance thereof and as directed by Secretary of the Board in its order dt. 11.01.1995, the local office Alwar was supposed to get the contract executed but if such an agreement is either not executed or failed to place on record by the officer of appellant-Board before the ld. Labour Court, the inference drawn by the ld. Labour Court in recording a finding of the respondent being a workmen u/S. 2(s) and non-compliance of S. 25F of the Act, 1947 in the absence of any tangible evidence on record, in rebuttal, in our considered view leaves no manner of doubt that the respondent was engaged as Apprentice Trainee for a period of one year under the Act, 1961 on stipend of Rs. 800/- per month, being diploma holder, was paid to him and indisputably the Apprentices who are engaged under the Act, 1961 are not covered u/S. 2(s) of the Act, 1947.
It is true that execution of contract u/S. 4 of the Act, 1961 is the requirement of law but in the given facts and circumstances where the contract was directed to be executed but for good unfold reasons not placed on record and the supporting evidence available on record clearly manifest and is self explicit to hold that the respondent was engaged as an Apprentice Trainee under the Act, 1961 and in our considered view, the finding recorded by the ld. Labour Court from the material which came on record is wholly perverse and not sustainable in law and the ld. Single Judge also failed to appreciate the material on record and confirmed the finding of the ld. Labour Court which, in our considered view, is also not sustainable in law.
As regards the submission made by the counsel that the only question open for consideration is regarding entitlement for reinstatement or compensation in lieu thereof, in our considered view, may arise if this court would have confirmed the finding of the ld. Labour Court regarding non-compliance of S. 25F of the Act, 1947 but if there was no requirement for the appellant-Board to comply with S. 25F of the Act, 1947 as he was engaged as Apprentice Trainee under the Act, 1961 the question raised is not attracted for consideration in the instant case.
Consequently, the appeal deserves to succeed and accordingly stands allowed and award passed by the ld. Labour Court dt. 04.03.2005 and so also order of the ld. Single Judge, impugned in the instant proceedings, dt. 28.02.2006 are quashed and set aside.
No costs.