AI Structured Summary
Not yet generated for this judgment
Judgment
Nainar Sundaram, J.—These two Writ Appeals are directed against the common order of the learned single Judge in W.P.Nos.4474 and
4475 of 1982. Those writ petitions were preferred by the respondent in each of the writ appeals. The appellant in these two writ appeals was the
respondent in the writ petitions. We are referring to the parties as per their nomenclature in the writ petitions. The petitioners were visited with
orders of determination u/s 7-A of the Employees'' Provident Funds and Miscellaneous Provisions Act 19 of 1952, hereinafter referred to as the
Act, for specified periods, in the case of W.P. No. 4474 of 1982, the period being between July, 1978 and December, 1981; and in the case of
W.P.No.3375 of 1982, the period being between November, 1978 and May, 1980. The determinations were put in issue by the petitioners in the
writ petitions. The point urged before the learned single Judge who dealt with the writ petitions, was that the determinations have been done in
respect of apprentices and that is not permissible, because apprentices was not fall within the definition of an ''employee'' under the Act. That the
persons concerned were entertained by the petitioners only as apprentices was not put in issue before the learned single Judge. The learned single
Judge adverted to the pronouncement of another learned single Judge of this Court in The Poly Clinic Nagercoil v. Regional Commissioner,
Employees Provident Fund. Tamil Nadu and Ors. (1983) 1 LLJ 449 and adopting the same ratio held there could not be contributions and
determinations of the same u/s 7-A of the Act in respect of apprentices and allowed the writ petitions. These two writ appeals, as already noted,
are directed against the common order of the learned single Judge.
Miss. Radha Srinivasan, learned Counsel for the respondents, would endeavour her best to show that apprentices can certainly come within the
category of employees under the Act and there could be determination and demand of contributions in respect of such appetencies. But, we find
that pronouncements of courts, including a pronouncement of highest Court in the land, support not the theory of the respondent, but only the
theory of the petitioners. In Employees'' State Insurance Corporation and Anr. v. Tata Engineering and Locomotive Company Limited and Anr.
(1976) 1 LLJ 81the Supreme Court had occasion to consider the definition of ''employee'' u/s 2(9) of the Employees'' State Insurance Act 34 of
1948, hereinafter referred to as Act 34 of 1948. The definition of an employee u/s 2(9) of Act 34 of 1948, so far as it is material, runs as follows:
employees'' means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and--
(i) Who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of the factory or
establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or...
There was a consideration of the concepts of apprentice and apprenticeship by the Supreme Court and it is worthwhile to advert to the relevant
passages occurring in that pronouncement as follows:
The word ''apprentice'' is not defined in the Act, nor is it specifically referred to in the definition of ''employee'' by either inclusion or exclusion. We
are unable to hold that in ordinary acceptation of the term apprentice a relationship of master and servant is established under the law. Even
etymologically as a matter of pure English, ''to serve apprenticeship means to undergo the training of an apprentice'' (Chambers Dictionary).
According to the Shorter Oxford English Dictionary apprentice is ''a learner of a craft; one who is bound by legal agreement to serve an employer
for a period of years, with a view to learn some handicraft, trade, etc., in which the employer is reciprocally bound to instruct him.
Strouds''s Dictionary puts it thus: ''In legal acceptation, an apprentice is a person bound to'' another for the purpose of learning his trade, or calling,
the contract being of that nature that the master teaches and the other serves the master with the intention of learning.
While dealing with the nature of the relationship of master and servant in comparison with other relationship in Halsbury''s Laws of England, third
edition, volume 25, the following passage appears at para 877, pages 451,452.
�By a contract of apprenticeship a person is bound to another for the purpose of learning a trade or calling, the apprentice undertaking to serve
the master for the purpose of being taught, and the master undertaking to teach the apprentice. Where teaching on the part of the master or
learning on the part of the other person is not the primary but only an incidental object, the contract is one of service rather than of apprenticeship;
but, if the right of receiving instruction exists, a contract does not become one of services because to some extent, the person to whom it refers
does the kind of work, that is done by a servant, or because he receives pecuniary remuneration for his work.''
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 discipline do not convert the apprentice to a regular employee under the employer. Such a
person remains a learner and is not an employee. An examination of the provisions of the entire agreement leads us to the conclusion that the
principal object with which the parties enter into an agreement of apprenticeship was offering by the employer an opportunity to learn the trade or
craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the course of the training. This is the primary
feature that is obvious in the agreement.
Now coming to the legislative history of our country on the subject, it is interesting to note that more than hundred years back we had the
Apprentices Act, 1850 and its preamble says, ''For better enabling children, and especially orphans and poor children brought up by public
charity, to learn trades, crafts and employments, by which when they come to full age, that may gain a livelihood.... ''Learning of craft or trade was
the essence of the said legislation, this Act was repealed by Section 38 of the Apprentices Act, 1961.The object of 1961 Act is to provide for the
regulation and control of training of apprentices in trades and for matters connected therewith. By the definition clause under this Act, namely,
Section 2(a) ''apprentice'' means a person who is undergoing apprenticeship training in a designated trade in pursuance of a contract of
''apprenticeship''. It is, therefore, inherent in the word ''apprentice'' that there is no element of employment as such in a trade or industry but only an
adequate well-guarded provision for training to enable the trainee after completion of his course to be suitably absorbed in earning employment as
a regular worker. The fact that a trainee may have been absorbed in the company where he is undergoing the training is not relevant for the
purpose of comprehending the content of the term.
Again we find that where the Legislature intends to include apprentice in the definition of a worker it has expressly done so. For example, the
Industrial Disputes Act, 1947, which is a piece of beneficial labour welfare legislation of considerable amplitude defines ''workmen'' u/s 2(a) of that
Act and includes apprentice in express terms. It is significant that although the legislature was aware of this definition u/s 2(a) under the Industrial
Disputes Act, 1947, the very following year while passing the Employees'' State Insurance Act, 1948, it did not choose to include apprentice while
defining the word ''employee'' u/s 2(9) of the Employees'' State Insurance Act, 1948. Such a deliberate omission on the part of the Legislature can
be only attributed to the well-known concept of apprenticeship which the Legislature assumed and took note of for the purpose of the Act. This is
not to say that if the Legislature intended it could not have enlarged the definition of the word ''employee'' even to include the ''apprentice'' but the
Legislature did not choose to do so.
The definition of an employee, as found u/s 2(9) and the definition of wages'', as found in Section 2(22) of Act 34 of 1948, were considered
and after looking into the terms of the agreement, it was opined that the apprentices are more trainees for a particular period for a distinct purpose
and the employer is not bound to employ them in its works after the period of training is over. The meaning up on the question runs as follows:
During the apprenticeship they cannot be said to be employed in the work of the company or in connection with work of the company. That would
have been so if they were employed in a regular way by the company. On the other hand, the purpose of the engagement under the particular
scheme is only to offer training under certain terms and conditions. Besides, the apprentices are not given wages within the meaning of that term
under the ""Act. If they were regular employees under the Act, they would have been entitled to additional remuneration such as daily allowance
and other allowances which are available to the regular employees. We are, therefore, unable to hold that an apprentice is an employee within the
meaning of Section 2(9) of the Act.
There was also reference to Section 18 of the Apprentices Act, 1961, in the following terms:
Incidentally we may note that Section 18 of the Apprentices Act, 1961, provides that ''Save as otherwise provided in this Act, every apprentice
undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker...
The concept of apprenticeship is, therefore, fairly known and has now been clearly recognised in the Apprentices Act. Apart from that, as we have
noticed earlier, the terms and conditions under which these apprentices are engaged do not give any scope for holding that they are employed in
the work of the company or in connection with its work for wages within the meaning of Section 2(9) of the Act.
Coming to the definition of an ''employee'' u/s 2(f) of the Act, as it stood at the relevant point of time, when the impugned determination came to
be made, it ran as follows:
Employee means any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an
establishment, and who gets his wages directly or indirectly from the employer, and includes any person employed by or through a contractor in or
in connection with the work of the establishment.
With effect from 1.8.1988, there has been an amendment introduced and by virtue of that amendment, the definition of an employee includes any
person engaged as an apprentice, not being an apprentice under the Apprentices Act, 1961, or under the standing orders of the establishment. But,
here we are deciding the question in relation to matters which arose before the amendment. The definition of an employee u/s 2(f) of the Act and
the definition of an employee found u/s 2(9) of Act 34 of 1948, though not same in verbatim, are similar with regard to the essential and necessary
ingredients to be satisfied. Hence, the rigour of the pronouncement of the Supreme Court in Employees'' State Insurance Corporation and Anr. v.
fata Engineering and Locomotive Company Limited and Anr. (1976) 1 LLJ 91 certainly applies to the present question. As already noted, it was
not put in issue at all before the learned single Judge that as per the terms of any agreement the concerned persons could have any role other than
apprentices. It was not claimed that the concerned persons were employed for wages. Significantly the respondent does not appear to have filed
any counter affidavit in the writ petitions. It has not been made out that the essential ingredient, namely, employment of a person for wages as such
before that person could be called an employee was present in the present cases. The specific case of the petitioners that the Persons concerned
were not employed for and paid wages has not been rebutted by the respondent.
Apart from the pronouncement of the highest Court in the land, there are other pronouncement of Courts in this country. In Kelvin Cinema,
Gauhati v. The State of Assam and Anr., 1973 Lab I.C.963 a Bench of the Gauhati High Court had occasion to consider the very same question
and it held that an apprentice would not be an employee within the meaning of the provisions of the Act. The fact that the amendment was
introduced effective from 1.8.1988 into the definition of an employee, so as to include a person engaged as an apprentice, subject to the exclusions
therein, also clearly demonstrates that earlier to the amendment, there was no possibility of bringing in any category of apprentice into the definition
of an employee, that is why in the pronouncement in Employees'' State Insurance Corporation and Anr. v. Tata Engineering and Locomotive
Company Limited and Anr. (1976) 1 LLJ 8. it was pointed out that where the Legislature intends to include the ''apprentice'' in the definition of
worker it has expressly done so and the fact the Legislature did not choose to do so in respect of the Act, as it stood then, has been significantly
taken note of in that pronouncement to exclude the apprentice from the category of an employees. We are not called upon to express and we are
not expressing any opinion as to the implications of the amendment. Suffice it to point out that prior to the amendment, no category of apprentice
was roped into the definition of an employee u/s 2(f) of the Act.
There is also the pronouncement of a single Judge of High Court of Kerala in Lord Krishna Bank Limited and Anr. v. Regional Provident Fund
Commissioner and Anr. (1980) 40 FLR 105. That is also a case, which directly arose under the Act. to bring an apprentice within the category of
employee, resort was made to the Employees'' Provident Funds Scheme, That was not accepted by the learned single Judge of the High Court of
Kerala and the learned single Judge held that without altering the definition of an employee found in Section 2(f) of the Act, falling back upon the
scheme would be of no avail at all to rope in an apprentice into the definition of an employee. The above pronouncements have been adverted and
adhered to by the learned single Judge of this Court in The Poly Clinic, Nagercoil v. Regional Commissioner Employee Provident fund, Tamil
Nadu (1983) 1 LLJ 449. The position of law, as discussed by us above, with reference to matters which arose before the amendment, obliges us
to concur with the decision of the learned single Judge and accordingly these two Writ Appeals fail and they are dismissed.