Nagar Palika Parishad Thru Exec ... vs Presiding Officer Industrial ...
2019 Latest Caselaw 4531 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 15.2.2019
 
Delivered on 15.5.2019
 
AFR
 
Reserved
 

 
Case :- MISC. SINGLE No. - 25725 of 2016
 
Petitioner :- Nagar Palika Parishad Thru Exec Officer & Anr
 
Respondent :- Presiding Officer Industrial Tribunal Lko & Anr
 
Counsel for Petitioner :- Ramesh Chandra Pandey
 
Counsel for Respondent :- C.S.C,J.N. Dixit,Uma Kant Gupta
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Heard learned counsel for the petitioners and Sri J.N. Dixit, Advocate appearing for the respondent No.2.

The petitioners have challenged the Award dated 27.04.2016 passed by the respondent No. 1 by which the reference made by the Government vide its order dated 05.11.2009 in Adjudication Case No. 103 of 2009 has been decided in favour of respondent No. 2. The reference as made by the Government was worded in the following manner:-

"Whether the workmen Sri Rajesh Kumar Mishra S/o Sri Rameshwar Prasad Mishra designation- Pump Operator has been usually terminated on 11.11.2006 by his employers, Executive Officer Nagar Palika Parishad, Raibareli and the Water Works Engineer, Nagar Palika Parishak, Raibareli and to what benefits such workmen is entitled?"

It has been submitted by the learned counsel for the petitioners that the respondent No.2 had filed Reference Case No.22 of 2007 before the Assistant Labour Commissioner, claiming himself to be a daily wage employee of the Nagar Palika Parishad, Raebareli and praying for setting aside the alleged illegal termination order dated 01.11.2006. After reference was made the adjudication case was transfered to Industrial Tribunal, Lucknow.

In the written statement, the respondent No. 2 had alleged himself to be working continuously under the petitioners and being paid salary of Rs.940/- per-month w.e.f 01.11.2005 upto 10.11.2006 and all of sudden being terminated on 11.11.2006 without following the procedure required for retrenchment as provided under the U.P. Industrial Disputes Act, hence his termination was bad and the same be set aside. He claimed to have rendered more than 240 days of service in a calender year and that without being paid retrenchment compensation, his services could not have been legally dispensed with.

In the written statement/ reply submitted by the petitioners they denied the claim of the respondent No. 2, saying that he was never appointed as an employee or a daily wager in the Nagar Palika Parishad. He was appointed as an apprentice in the Water Works Department in the Nagar Palika Parishad w.e.f. 01.11.2005 upto 01.11.2006. He joined as an apprentice and his joining report has been filed as Annexure-4 to the Writ Petition. It was also submitted before the respondent No.1 that initially the respondent No.2 had filed Writ Petition No.8936 (S/S) of 2006 before this Court and made a prayer to issue a mandamus to the respondents of the said petition to let him complete his apprenticeship. The said writ petition was dismissed on 18.10.2006 as not maintainable, as the respondent No.2 had already filed a complaint before the Assistant Labour Commissioner, Raibareli which was pending and simultaneous remedies could not be permitted to be awarded by the petitioner.

The Assistant Labour Commissioner decided the Reference no. 30 of 2008 by his Award dated 07.10.2011 and directed back wages to be paid to the respondent No. 2 against which order, the petitioners filed Writ Petition No. 4892 (MS) of 2012 which is still pending before this Court.

It had also been submitted before the Tribunal that in terms of an agreement entered into between the parties before the Assistant Labour Commissioner, he was allowed to complete his apprenticeship and contract of his engagement having been completed, there was no reason for the employer to continue with his services any further. On termination of contract of apprenticeship the disengagement of the respondent No.2 was automatic and there was no illegal termination as alleged.

The learned counsel for the petitioners has read out the findings recorded by the respondent No. 1, on the submissions made by the employers before it from paragraph-8 onwards of the Award. The respondent No. 1 had framed the points of determination correctly as to whether the respondent No. 2 was indeed engaged as Apprentice in Nagar Palika Parishad, Raibareli but thereafter, had given findings which was completely against the record.

It has been submitted that the respondent No.1 relying upon Paper No.11B(2) which is an application dated 13.10.2005 submitted by the respondent No. 2 to the Chairman of Nagar Palika Parishad, had come to the conclusion that the respondent No. 2 had never applied for apprenticeship but he applied for being engaged as a regular employee in the Nagar Palika Parishad.

It has further been submitted by the learned counsel for the petitioners that the respondent No. 1 has observed that no documentary evidence has been filed by the employers to show that the respondent No. 2 was engaged only as an apprentice and not as daily wage Pump Operator/Pump Attendant and since they were making such claim, the burden of proof lay upon them to prove that the respondent No.2 was engaged only as an apprentice and after termination of duration of his contract of apprenticeship, he would be automatically disengaged and there was no retrenchment.

It has been submitted further that the respondent No.1 has given a finding that the log book maintained for Prabhu Town Pump Zone relating to work of Nagar Palika Parishad submitted by the respondent No.2, showed him to be as a pump operator working and had he been engaged as an apprentice, he would not have been allowed to operate the pump. The respondent No. 1 has also observed that in the compromise/ settlement entered into between the parties on 22.04.2006 before the Assistant Labour Commissioner also, there is no mention that the respondent No. 2 was engaged as an apprentice. The employers have not produced any evidence to show that the respondent No. 2 was sent by the I.T.I. in its list for engagement of apprentices. Moreover, it has been observed that under the Minimum Wages Act in Minimum Wages case No. 30 of 2006 (Rajesh Kumar Mishra Vs. Nagar Palika Parishad, Raibareli) the Assistant Labour Commissioner had directed payment of arrears of Minimum Wages amounting to Rs. 25,644/- to the respondent No. 2. It was evident that the same plea was taken before the Assistant Labour Commissioner in the Minimum Wages Case filed by the respondent No. 2 but it was not believed to be true by the Assistant Labour Commissioner. He had been directed that respondent No. 2 be given the difference in minimum wages prescribed and in the wages that were being given by the employer to him.

The learned counsel for the petitioners has pointed out that the fact that the writ petition was filed by the respondent No. 2 himself before this Court which writ petition was ultimately dismissed by an order dated 18.10.2006 as not maintainable was brought before the learned Tribunal and that in the said Writ Petition the respondent No.2 had himself admitted that he had joined as apprentice and was continuing as such but was not allowed to continue and complete his apprenticeship because of the arbitrary conduct of the employers. He had prayed for a mandamus, directing the employers to allow him to continue his apprenticeship. This fact having been brought before the Tribunal, the respondent No. 1 ought to have considered it in its entirety however, it has been just brushed aside because an affidavit was filed by the respondent No. 2 saying that the writ petition was filed on misconceived grounds by his Advocate and it was not pressed before the Court and was dismissed as such.

The learned counsel for the petitioners has brought on record the complete copy of the earlier writ petition filed before this Court and he has referred to several paragraphs in the pleadings which say that respondent no.2 was selected for one year apprenticeship for the post of Pump Operator on 01.11.2005 and he continued his training at the Pumping Station situated at Prabhu Town Park but surprisingly on 31.01.2006 he was asked by the employers to produce his ITI Certificate, which certificate he could not produce therefore, he was asked not to report for training any further.

The learned counsel for the petitioners has pointed out the Annexures to the earlier Writ Petition and also the Prayer clause. Annnexure-1 relates to an order passed by the Executive Officer, asking the respondent No.2 to produce his ITI Certificate in its original and giving notice to him that in case of failure, his apprenticeship shall be terminated. He has also referred to Annexure No.2 to the earlier Writ Petition which is an application made on 03.02.2006 by the respondent No. 2 in which he says that although he joined on apprenticeship he was never asked for ITI certificate initially. Now it was not open for them after framing contract w.e.f. 01.11.2005, to ask for the ITI Certificate.

The learned counsel for the petitioners has also referred to a notice issued by the Assistant Labour Commissioner on the Claim Petition filed before him and the reply to the same given by the petitioners saying that the respondent No. 2 was engaged as an apprentice and because of the requirements under the Act to enter into a contract, he was asked to submit the original ITI Certificate in the Trade concerned. It is only when the respondent no.2 failed to produce the same that his apprenticeship was terminated.

It has been submitted by the learned counsel for the petitioners that the final settlement arrived at between the parties dated 22.04.2006 which has been filed as Annexure with the counter affidavit by the respondent No. 2, should be read in the light of the correspondence undertaken between the parties where the Assistant Labour Commissioner specifically referred to termination of apprenticeship, and the reply given by the employers that the apprenticeship had not been terminated illegally, but because of the requirement under the Act, a contract had to be entered into between the parties that original certificate from ITI was demanded to him. On his failure to produce the same, the respondent No.2 was asked not to come for training any further.

Lastly it has been submitted by the learned counsel for the petitioners that the learned Tribunal has failed to appreciate documentary evidence submitted before it in their true context and has given a perverse finding that because a settlement was arrived at before the Assistant Labour Commissioner, the respondent No. 2 should be allowed to continue and it was admitted by the employers that he had been wrongly terminated.

The learned counsel for the respondent No.2 Mr. J. N. Dixit, on the other hand, has pointed out that the burden to prove that the respondent No. 2 was not engaged as a workman but as an apprentice lay upon the employers. They did not file relevant documentary evidence before the Tribunal, despite opportunity being given and this Court should not interfere in the Award impugned as it is a reasoned and speaking order dealing with all the contentions raised by the employers and rejecting them one by one.

The learned counsel for the respondents has also pointed out the definition of workmen as given under the U. P. Industrial Disputes Act in Section 2 (z). He has read out the definition of workmen which is as follows:

"'Workmen' means any person (including apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or any clerical 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 retrench 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 any Army Act, 1950 or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934 or

(ii) who is employed in the police service or as an officer or other of a prison; or

(iii) who is employed mainly in managerial or administrative capacity; or

(iv) who being employed in a supervisory capacity draws wages exceeding five 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 or a managerial nature."

It has been argued by the learned counsel for the respondent No.2 that a workman under the U. P. Industrial Disputes Act includes an apprentice and even if the case as setup by the employers is accepted, still the Award should not been interfered with as the Reference was correctly made to the Industrial Tribunal by the Government. It has been found on evidence submitted by the respondent No. 2 that he had worked for more than 240 days in a calendar year in fact. The learned Tribunal has found the respondent No. 2 to have worked w.e.f. 01.03.2006 up-to 11.11.2006, for a total number of 255 days. Also, the learned Tribunal has placed reliance upon several judgments of the Supreme Court where it has been observed that if the workman is able to prove that he had worked for 240 days in a year and his retrenchment has been done without following the provision of Section 6(N) of the Act, he is entitled to reinstatement. It has been submitted that reinstatement along with back wages has been ordered by the learned Tribunal, having held that the termination/retrenchment was not in accordance with the provision of the Act.

The learned counsel for the petitioners in rejoinder has argued that there is no denial that a writ petition was filed by the respondent No.2 initially before this Court in which he had himself stated that he was selected for one year apprenticeship on the post of Pump Operator and started training at the Pump House situated at Prabhu Town Park w.e.f. 01.11.2005. It is not open for the respondent No.2 to now contend that he was engaged as a Pump Operator. For Class-III post, regular recruitment procedure as prescribed under the Rules for the Nagar Palika Parishad has to be followed.

It has also been submitted that Section 2(z) of the U. P. Industrial Disputes Act would only apply in such cases whereafter the apprenticeship contract stood fulfilled. The apprentice continued in the employment of the employers as a workmen and the terms of employment remained inconclusive. It would not apply in the case of the respondent No. 2 who was admittedly engaged as an apprentice. Only the Apprentices Act and its provisions would be applicable.

Having heard the rival submissions, this Court has carefully perused the record.

It is the case of the petitioners that respondent no.2 was never engaged in Nagar Palika Parishad, either on daily wage basis or on regular basis. He was engaged only for apprenticeship in Jal Kal Vibhag with effect from 1.11.2005 to 1.11.2006 and he submitted his joining in the same capacity. On 31.1.2006 respondent no.2 was asked to produce I.T.I. Training Certificate to enable the Nagar Palika Parishad to get the contract of apprenticeship registered with the Apprenticeship Advisor.

Respondent no.2 submitted an application that at the time when he was engaged on apprenticeship training, no I.T.I. Certificate was asked for, from him and, therefore, after he started working in the Pump House situated at Prabhu Town Park, he could not be asked to submit his Apprenticeship Certificate at a later stage. Respondent no.2 also filed an application to the same effect before the Assistant Labour Commissioner, Raebareli on 3.2.2006, saying that he was engaged on apprenticeship training contract by the Nagar Palika Parishad and when he started training on 1.11.2005, no I.T.I. Certificate was asked from him and later on, the Executive Officer started asking for I.T.I. Training Certificate and in this view of the matter, the demand of I.T.I. Training Certificate so late in the day, is quite inappropriate and the Assistant Labour Commissioner, Raebareli was requested to look into the matter of unnecessary victimization of respondent no.2.

The respondent no.2 also wrote a letter in this regard to the District Magistrate, Raebareli where he submitted that he was engaged on apprenticeship training without asking for any I.T.I. Certificate or G.I.T.I. Certificate, but after engagement for about two months, he has been issued a notice to give a copy of his I.T.I. Certificate and has been threatened with suspension and termination of his apprenticeship. In the said letter to the District Magistrate, respondent no.2 has also stated that in the year 2004-05 also, a batch of apprenticeship trainees were engaged by the Nagar Palika Parishad without asking for I.T.I. or G.I.T.I. Certificate. The complaint made by respondent no.2 was taken into account by the District Magistrate and by the Assistant Labour Commissioner, Raebareli and on 8.2.2006, a notice was issued to the Executive Officer, Nagar Palika Parishad, Raebareli, mentioning about the complaint of respondent no.2 and fixing a date for hearing as 20.2.2016.

In the meanwhile, respondent no.2 also approached this Court by filing writ petition and praying for a mandamus to be issued to Nagar Palika Parishad, not to suspend his apprenticeship training and to allow him to continue as such without asking for I.T.I. Training Certificate. A copy of the said Writ Petition No.8936 (SS) of 2006 has been filed as Annexure to the writ petition and on perusal of the same, it is apparent that respondent no.2 had initially setup a case before this Court that he was engaged as an Apprentice Trainee in the Pump House situated at Prabhu Town Park, but due to extraneous considerations, there was a threat of suspension of his training and, therefore, he also approached the Assistant Labour Commissioner in the matter. A prayer was made that a direction be issued to the Executive officer, Nagar Palika Parishad to permit the petitioner to complete his apprenticeship for the post of Pump Operator without any hindrance. The said writ petition was dismissed by this Court on the ground that respondent no.2 had already approached the Assistant Labour Commissioner with his grievance and the Assistant Labour Commissioner being seized of the matter. A copy of the judgment dated 18.10.2006 passed in the aforesaid writ petition has been filed along with this writ petition.

The specific statement made with regard to the earlier case setup by respondent no.2 before this Court and before the Assistant Labour Commissioner has been pleaded in Paragraph no.8 onwards to the writ petition.

It had also been mentioned that respondent no.2 had also approached the Assistant Labour Commissioner with the grievance that minimum wages had been fixed by the Government as Rs.3094/- per month for semi skilled Labour, but respondent no.2 was being given only Rs.940/- per month. The Nagar Palika Parishad had filed its counter reply in Minimum Wages Case no.30 of 2006, saying that Rs.940/- was the stipend admissible to all Apprenticeship Trainees as provided by the Government through its various Government Orders and the respondent no.2 had not been engaged as a regular worker or even a daily wage employee and the back wages claimed by him were inadmissible to him. However, the Assistant Labour Commissioner had decided the reference against the Nagar Palika Parishad and the Nagar Palika Parishad thereafter filed Writ Petition no.4892 (MS) of 2012, challenging the Award of the Assistant Labour Commissioner dated 7.10.2011 and the writ petition remained pending before this Court.

The specific pleadings made in the writ petition have not been denied in the counter affidavit. With regard to the filing of complaint no.13 of 2016 (Rajesh Kumar Mishra versus the Executive Officer, Nagar Palika Parishad, Raebareli), the compromise being entered into between the parties on 22.4.2006 has been referred to, without adverting to the correspondence undertaken from the office of the District Magistrate and from the office of the Assistant Labour Commissioner with regard to the claim of respondent no.2 that his apprenticeship training was suspended/threatened to be terminated on extraneous considerations by the Executive Officer.

True copies of such correspondence have been filed along with the writ petition and the rejoinder affidavit filed by the Nagar Palika Parishad, Raebareli.

It is apparent that respondent no.2 resorted to concealment of material facts while approaching the respondent no.1, claiming that being a workman, he had been terminated illegally on 10.11.2006 without following the provisions of Section 6(N) of the U.P. Industrial Disputes Act. In the Award impugned, respondent no.1 has failed to notice this specific pleading made in the counter reply filed by the petitioners that respondent no.2 had initially approached the Assistant Labour Commissioner with a grievance that his apprenticeship training was being suspended because of extraneous considerations. This complaint case had led to a compromise on 22.4.2006 along with respondent no.2 to complete his one year of training with effect from 1.11.2005 upto 1.11.2006.

It is no doubt true that respondent no.2 continued to work for a few days thereafter but that alone could not lead to a conclusion being drawn that his apprenticeship matured into an engagement as a workman. Respondent no.1 has referred in his Award that it is a failure on the part of the Nagar Palika Parishad to prove that respondent no.2 was engaged on apprenticeship through documentary evidence. Respondent no.1 has also referred to Section 2(z) of U.P. Industrial Disputes Act where the definition of workman includes an apprentice and has drawn a conclusion in favour of respondent no.2, treating him to be a workman being illegally retrenched and, therefore, being entitled to reinstatement.

In the case of U.P. State Electricity Board vs. Shiv Mohan Singh and others, (2004) 8 SCC 402, the Supreme Court was considering several appeals filed by the U.P. State Electricity Board against the judgments rendered by this Court, giving the benefit of U.P. Industrial Disputes Act to Apprentices and in the judgment rendered by three Hon'ble Judges of the Supreme Court, the Apprentices Act, 1961 and U.P. Industrial Disputes Act, 1947 have been considered in its entirety and the Supreme Court came to the conclusion that even though Apprentices Act requires the registration of contract by Apprenticeship Advisor under sub-section (4) of Section 4 of the Act read with Rule-6 thereof, such a requirement is directory and not mandatory.

In Paragraph-43 of the said judgment, the Supreme Court observed as under:

"43. Therefore a combined reading of the sections as well as Rules makes it clear that apprentices are only persons undergoing training and during that training they are entitled to get a particular stipend, they have to work for fixed hours and at the end of period of training they have to appear in the test and a certificate is issued to them. There is no obligation on the part of the employer to give them any employment whatsoever. The position of the apprentice remains as an apprentice trainee and during the period of training they will not be treated as workmen. Only obligation on the part of the employer is to impart them training as per provisions of the Act and Rules and to pay them stipend as required under Rule 11 and beyond that there is no obligation on the part of the employer to accept them as his employees and give them the status of workmen. There is no relation of master and servant or employer and employee."

The Supreme Court has also considered that even though Section 2(z) of the U.P. Industrial Disputes Act, 1947 defines a workman as a person including an apprentice and under Section 6(N) of the Act, the condition precedent to retrenchment of a workman is for giving one month's notice in writing indicating the reasons for retrenchment or one month's pay in lieu of such notice and retrenchment compensation equivalent to fifteen days' average pay for every completed year of service or any part thereof in excess of six months; Section 2(z) of the Industrial Disputes Act, 1947 does not mean that an apprentice under the Apprentices Act, 1961 would get the status of a workman only because of non-registration of contract of apprenticeship.

In Paragraph-51 of the said judgment, the Supreme Court held as under:

"51. Therefore, now going back to the basic question that in the light of the aforesaid statutory provisions whether non-registration of the contract can render the contract void or illegal and what is the result thereof. From the scheme of things it is more than apparent that the Apprentices Act, 1961 is a complete code in itself and it lays down the conditions of the apprentices, what shall be their tenure, what shall be their terms and conditions and what are their obligations and what are the obligations of the employer. It also lays down that the apprentices are trainees and not workmen and if any dispute arises then the settlement has to be made by the Apprenticeship Adviser as per Section 20 of the Apprentices Act, 1961 and his decision thereof is final. Now, under the scheme of these things, it clearly shows that the nature and character of the apprentice is nothing but that of a trainee and he is supposed to enter into a contract and by virtue of that contract he is to serve for a fixed period on a fixed stipend. This will not change the character of the apprentice to that of a workman under the employer where he is undergoing the apprenticeship training. Sub-section (4) of Section 4 only lays down that such contract should be registered with the Apprenticeship Adviser. But by non-registration of the contract, the position of the apprentice is not changed to that of a workman.............It further makes clear that by virtue of Section 18 the apprentice trainees are not workers. It clearly lays down that if an apprentice trainee is undergoing apprenticeship training in a designated trade in an establishment, he shall be a trainee and not a worker. It further contemplates that the provisions of labour laws shall not apply in relation to such apprentice. In this connection reference to the definition of "workman" given in Section 2(r) also emphasises that it will not include apprentice. Section 20 also lays down how a dispute arising under the Apprentices Act, 1961 can be settled.........The survey of all these provisions of the Acts and the Rules as mentioned above, makes it clear that the character and status of apprentice remains the same and he does not become workman and labour laws are not attracted."

The Supreme Court further observed that the Apprentices Act, 1961 being a later and a special Act would override the provisions of the older General Act i.e. Industrial Disputes Act as the special excludes the general. There being specific provisions under the Act of 1961 to deal with the disputes arising on alleged violation of apprenticeship contract being referred to the Apprenticeship Advisor and excluding reference to Industrial Tribunals/Courts, makes the intention of the legislature absolutely clear in this regard and mere failure of entering into a contract of apprenticeship training and its registration would not result in the apprenticeship training maturing into that of a regular engagement of a workman.

In the Award impugned, respondent no.1 has failed to advert to the binding observations made by the Supreme Court in the judgment rendered in the case of Shiv Mohan Singh (supra) .

The Award impugned dated 27.4.2016 thus, suffers from the vice of being per incuriam and being violative of Section 18 of the Apprentices Act, it is also without jurisdiction. It is, therefore, set aside.

The writ petition stands allowed.

Consequences to follow.

Dated: May 15, 2019

Sachin