Babulal And Others v. Rajasthan State Road Transport Corporation And Another

4. 1992 (2) W.L.C 558 16 and 19 5. 1986 (2) L.L.N 976 16 and 18 6. 1985 (1) L.L.N 245 21 7. 1975 (2) L.L.N 498 16

For Petitioners.— Sri D.K Parihar.

For Respondents.— Sri Sangeet Lodha.

The Judgment of the Court was delivered by

Shivaraj V. Patil, C.J:— Heard learned counsel for the parties.

2. The petitioners in this writ petition have sought for a direction to the respondents to give them appointment or in the alternate, consider them for appointment as fitters in the permanent cadre, they be treated as fitters with effect from the date shown in their appointment orders Exhibits 1 to 3, they should be paid in the pay-scale of fitter with effect from the date of their appointment or to grant any other pay to which the petitioners are entitled.

3. The case of the petitioners in brief, as can be gathered from the writ petition is that they were appointed as trainees under apprenticeship programme under Exhibits 1 to 3 on 4 January 1991, 19 January, 1991 and 4 January, 1991 respectively. They completed their apprenticeship programme from the Industrial Training Institute, Government of Rajasthan, Banner, in July 1991. The services of the employees who are working in the workshops and depots of the respondents are governed by the Rajasthan State Road Transport Workers and Workshop Employees Standing Orders, 1965 (for short, the Standing Orders). Clause 12 of the said Standing Orders reads thus:

“A person may be appointed as trainee by the Corporation on his signing an agreement under the Apprenticeship Act, 1961 (for short, the Act) and deputed for training with a view to employment in the Corporation. During the period of training, the apprentice shall be paid an allowance as may be determined by the Corporation from time to time and shall be governed by the conditions laid down in agreement.”

4. The training orders Exhibits 1 to 3 speak of termination of their services after completion of one year. According to them, this term is contrary to Cl. (12) of the Standing Order, as in that clause it is stated that the training will be with a view to employment in the Corporation. The petitioners claim that they had completed service for more than one year, there is no such provisions in the Act for training programme after the trade certificate was issued under the Act after completion of the training period; the term contained in the Standing Orders is contrary to the provisions of the Act and as such, they were entitled to the relief sought for in the writ petition.

5. The respondents have filed reply resisting the claim of the petitioners contending that a joint writ petition filed by the petitioners was not maintainable as they were appointed as apprentices by different orders on different dates. The petitioners made applications to the respondents for imparting training to them in the trade of Fitter as per Annexures R1 to R3. They suppressed and concealed the material fact that it was they who, in fact, made the said applications before the respondent-Corporation for imparting the training and they have further suppressed the fact of execution of the agreements in favour of the respondent-Corporation as per Annexures R4 to R6. The contracts executed by them were duly registered by the Joint Director and Joint State Apprentice Advisor, Technical Education, Rajasthan, Jaipur. This fact is also suppressed. Hence, the writ petition is liable to be dismissed with costs without even enquiring on the main issues.

6. It is the further case of the respondents that pursuant to the applications made by the petitioners seeking training as apprentices, the Divisional Mechanical Engineer, Jodhpur, passed order, dated 4 January 1991, informing the petitioners that they had been selected under the apprenticeship programme under the Act with a clear-cut condition incorporated in the said orders that there will be no job guarantee and further their services would be terminated after completion of one year. Along with the said order, necessary bonds/contract were sent for execution by the petitioners and a clear-cut direction was given to the Divisional Manager, Barmer, that the joining report of the petitioners be sent to me office of the Divisional Mechanical Engineer, Jodhpur, by return of post along with three copies of the bond/contract duly executed by the petitioners along with their certificates within a period of seven days of joining of the duties. Pursuant to the same, the petitioners did execute the necessary bonds/contract which were duly signed by them. The bonds/contract were sent by the Divisional Manager, Barmer, to the Divisional Mechanical Engineer, Jodhpur. After receipt of the bonds the Divisional Mechanical Engineer, Jodhpur, sent them to the Joint Director and Joint State Apprentice Advisor, Technical Education, Rajasthan, Jaipur, for registering them. The contracts were registered on 30 November 1991, 11 September, 1991 and 11 September 1991, respectively. It was denied that the petitioners were working as trainees till 24 April, 1992 on which date, the writ petition was filed; me petitioners were guilty of making false averments. The petitioners' apprenticeship training was terminated from 11 April, 1992 as per Annexure 10 written by the Chief Manager, Banner. It is submitted that the petitioners are guilty of making false statement in me writ petition that even from the appointment orders Exhibits 1 to 3, it is clear that they being fitters were appointed with the condition that they would continue to work, even after completion of one year. Perusal of Exhibits 1 to 3 shows that there is no such condition. The petitioners have no respect for tram and from stage to stage they have made false statements and have suppressed material facts. According to me respondents Exhibit 9 does not show who wrote the said letter, it does not bear me DO. letter number and its date. Further it does not show that in me said letter any reference was made for giving appointment to me trainees who were working under the Chief Manager, Barmer. It is also stated that there is no post of officer incharge in the workshop at Jodhpur and the statement of the staff position mentioned in Exhibit 10 also does not relate to technical staff. Thus, Exhibits 9 and 10 being incorrect are also irrelevant and misconceived. Exhibits 1 to 3 produced by the petitioners themselves along with the writ petition, contain a clause clearly showing that they had been selected under the apprenticeship programme for a period of one year with “no job guarantee.” There is one clause in the said orders that the petitioners will be terminated from the training after completion of one year. Thus, it is clear that even after the period of one year from the date of contract of apprenticeship training the petitioners were governed by the provisions of the Act. The word “service” appearing in Cl. 12 of the Standing Orders relate to the training period and not a regular service. Under me circumstances, the respondents have prayed for the dismissal of the writ petition.

7. The learned Single Judge passed order, dated 28 April 1992, and referred the following two questions for decision by the larger Bench:

(a) Whether an apprentice appointed under me Apprenticeship Act, 1961, can be treated as a workman?

(b) Whether an apprentice is, as of right, entitled to absorption in employment of the employer even though the contract specifically mentions that there shall be no job guarantee?

8. Thus, the matter comes up before us for decision.

9. The learned counsel for the petitioners contended that having regarding to Cl. 12 of the Standing Orders, the petitioners are to be treated as workman. According to him, even though the petitioners were apprentice, they were entitled for absorption in employment not with standing the contract mentioning that there shall be no job guarantee. He relied on the decision of me Apex Court in the case of Uttar Pradesh State Road Transport Corporation v. Uttar Pradesh Parivahan Nigam Shishukhs Berozgar Sangh [1995 (1) L.L.N 788]. Based on this decision, he submitted that it would not be just and proper to go merely by what has been stated in S. 22(1) of the Act or for that matter in the model contract form.

10. On me other hand, learned counsel for the respondents, based on me stand taken and contentions raised in me reply statement. argued that an apprentice under the Act cannot be treated as a workman and that an apprentice is not entitled for absorption in employment as of right contrary to the term of the contract. He drew our attention to Cl. 12 of the Standing Orders, which is extracted above, to contend that the petitioners were governed by the conditions laid down in the agreement executed by them. Learned counsel pointed out to Ss. 18 and 22 of the Act in support of his submission that the apprentices are trainees and not workers and that it shall not be obligatory on the part of the employer to officer any employment to any apprentice on his completion of the period of apprenticeship training unless there is a condition in the contract of apprenticeship that the apprentice shall on successful completion of the training serve the employer. He also cited few decisions in support of his submissions.

11. We have carefully considered the submissions made by the learned counsel for the parties.

12. In order to appreciate the rival contentions on their relative merits, we consider it appropriate to refer to the relevant documents. Exhibits 1 to 3 are the applications addressed to the Divisional Mechanical Engineer seeking apprenticeship training for a period of one year. Annexures R4 to R6 are the contract of apprenticeship executed, which clearly show that the petitioners were the apprentices and joined for training for a period of one year. In the said contract it is clearly stated that the petitioners and their sureties solemnly declare that they have read the Apprentices Act, 1961, and the Apprentices Training Rules, 1962, regarding contract of apprenticeship training including obligations and agree to abide by all the provisions made thereunder. It is pertinent to mention here that there is no clause in these contracts providing for employment to the petitioners after the period of apprenticeship was completed. Annexures R7 to R9 are the certificates of registration issued from the office of the Joint Director of Technical Education and Joint State Apprentice Advisor, Rajasthan, registered under the Apprenticeship Act. These certificates also show that the petitioners were only apprentices and period of apprenticeship training was for one year and that period was completed on 9 January 1992, 28 January, 1992 and 9 January, 1992 respectively. Exhibits 1 to 3 are the letters issued by the Divisional Mechanical Engineer, Jodhpur, to the petitioners informing that they had been selected by the Rajasthan State Transport Corporation under the Apprentices Act programme and that the selection had been made subject to the certain conditions. One of the conditions was that there was “no job guarantee.” It is not disputed that during the apprenticeship training period,* the petitioners were only to be paid stipend As per Cl. 12 of the Standing Orders it is clear that during the period of training the apprentice shall be paid allowance as may be determined by the Corporation from time to time and shall be governed by the conditions laid down in the agreement. It is not disputed that the petitioners were apprentices. According to S. 2(aa) of the Act, “apprentice” means a person who is undergoing apprenticeship trailing in pursuance of a contract of apprenticeship. Section 18 of the Act reads thus:

“18. Apprentices are trainees and not worker save as otherwise provided in this Act—

(a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker; and

(b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice.

13. As can be seen from the above section of the Act, apprentices are only trainees and not workers, save as otherwise provided in the Act. No provision was pointed out to us to say that the petitioners were not to be treated as trainees or they should be treated as workers. Section 18(b) also adds that the provisions of any law with respect to labour shall not apply to or in relation to such apprentice. Hence, the petitioners cannot claim any benefit under the provisions of the Industrial Disputes Act in this regard seeking their absorption in the employment.

14. Section 22 of the Act reads thus:

“22. Offer and acceptance of employment.—

(1) It shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer.

(2) Notwithstanding anything in Sub-sec. (1) whether there is a condition in a contract of apprenticeship that the apprentice shall, after the successful completion of the apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract.

Provided that where such period or remuneration is not, in the opinion of the Apprenticeship Adviser, reasonable, he may revise such period or remuneration so that to make it reasonable, and the period of remuneration so revised shall be deemed to be the period or remuneration agreed to between the apprentice and the employer.”

15. Having due regard to the provisions contained in the above sections of the Act and keeping in view the various documents referred to above, in particular Exhibits 1 to 3, letters of selection containing condition that there was no job guarantee and Annexures R4 to R6 contract forms signed by the petitioners not containing any clause for providing employment, we have no doubt in our mind that the petitioners cannot claim any relief to absorb them in employment of the respondents. Looking to the express provision contained in S. 18 extracted above, the petitioners being apprentices were only trainees and not workers.

16. A learned Single Judge of this Court in Uttam Ram Bhargava v. Rajasthan State Road Transport Corporation [1996 (2) R.L.R 297], has held that in the absence of specific condition regarding further employment, apprentice is not entitled to be employed in permanent cadre; relying on Abdul Aziz v. Rajasthan State Road Transport Corporation [1992 (2) W.L.C 558], Hanuman Prasad Choudhary v. Rajasthan State Electricity Board [1986 (2) L.L.N 976], and the decision of the Supreme Court in Employees' State Insurance Corporation v. Tata Engineering and Locomotive Company, Ltd. [1975 (2) L.L.N 498], In the aforementioned decision of the Apex Court, it is held, in Para 12, at pages 501 and 502:

“From the terms of the agreement it is clear that apprentices are mere 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. During the apprenticeship they cannot be said to be employed in the work of the company …”

17. Yet in other case of Rajasthan State Road Transport Corporation v. Mahaveer Singh [1999 (2) L.L.N 608], a learned Single Judge or this Court referring to the earlier decisions of this Court as well as the Apex Court, has taken the view that apprenticeship period having come to an end, the apprentice did not become workman.

18. In the case of Hanuman Prasad Choudhary v. Rajasthan State Electricity Board [1986 (2) L.L.N 976] (vide supra), aforementioned, a learned Single Judge has also held that an apprentice governed by the Act is not workman for the purpose of Industrial Disputes Act.

19. The Division Bench of this Court in the case of Abdul Aziz v. Rajasthan State Road Transport Corporation (vide supra), aforementioned, referring to S. 2(aa) of the Act and S. 25 of the Industrial Disputes Act, has held that an apprentice undergoing an apprenticeship training in pursuance of express contract of apprenticeship to be in effect for one year but continued for any subsequent period does not get any higher status in the employment Paragraph 4 of the said judgment reads thus:

“The first question that arises for consideration is to find out the status of the petitioner. He had been taken in service as an apprentice for one year. Even after the expiry of the period of apprenticeship the petitioner continued in that very capacity drawing Rs. 150 per month which he was getting initially. The submission of the petitioner's counsel is that he was a workman within the meaning of that terms under the Industrial Disputes Act and that consequently, the first respondent could not have terminated the petitioner's services without complying with the provisions of S. 25-F of the Industrial Disputes Act. The petitioner did not acquire the status of a workman. He continued to be an apprentice. The word ‘apprentice’ has been defined under S. 2(aa) of the Apprentices Act. ‘Apprentice’ means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship.”

20. In Para. 9 of the same judgment, it is stated that the petitioner's continuance did not clothe him with higher status than what he had at the time of entry in the respondents employment as an apprentice.

21. The decision of Narender Kumar v. State of Punjab [1985 (1) L.L.N 245], does not help the petitioners in the absence of any clause in the contract that apprentice shall serve the employer after the successful completion of the training. As already noticed above, there is no clause in the contract executed between the parties that the petitioners shall serve the employer after completion of the training. Per contra, letters of selection Exhibits 1 to 3 expressly State that there was no job guarantee. Hence, this decision of the Apex Court does not advance the case of the petitioners.

22. The case of Uttar Pradesh State Road Transport Corporation v. Uttar Pradesh Parivahan Nigam Shishukhs Berozgar Sangh [1995 (1) L.L.N 788] (vide supra), aforementioned, relied on by the learned counsel for the petitioners, is also of no help to the petitioners. It was a case set up on the basis of principle of promissory estoppel having regard to circular, dated 21 December 1997, issued by the Corporation as well as memo of directorate of training saying that full efforts should be made to provide trainees with employment. In the case in hand, no such situation existed. To say it again, it was very specific under the Exhibits 1 to 3 that there was “no job guarantee” and the agreements executed by the petitioners as per Annexures R4 to R6 also did not contain any clause containing provision for further employment after the period of apprenticeship.

23. For the reasons stated and the discussions made above, we answer both the questions referred for decision in the negative. In this view of the matter no relief can be given to the petitioners.

24. Consequently, the writ petition is dismissed with no order as to costs.