Kartik Ramachandran R. vs P.O., Labour Court And Anr.
2005 Latest Caselaw 1426 Del

JUDGMENT

Gita Mittal, J.

1. The issue in the present case is as to whether a 'trainee steno clerk expeditor' would be covered within the definition of workman under Section 2(s) of the Industrial Disputes Act, 1947 and whether the service of such trainee could not have been terminated without compliance of Section 25-F of the Industrial Disputes Act, 1947.

2. The petitioner in the instant case was admittedly appointed as a trainee steno clerk expeditor vide a letter dated April 20, 1990 by the respondent under the training scheme of Wipro Fluid Power. As per the letter of appointment, the petitioner was required to report on training on or before April 30, 1990. The training was stipulated for the period of six months from the date of joining unless extended in writing by the company. During such period of training, the trainee/petitioner was to be paid a consolidated stipend of Rs. 1,800/- per month and was not entitled to any other allowance or benefit of any nature. There was a prohibition under the letter of appointment to the petitioner taking up any other remuneration, part time or otherwise, or in any advisory capacity nor could the petitioner be interested, directly or indirectly, in other business during this training. The petitioner was liable to be transferred to the other locations, divisions or departments of the company without any other stipends on such transfer. The letter of appointment has been placed on record. It also stipulated that during the period of training, the appointment can be terminated by one month (30 days) notice without any reason. It is stipulated that the company reserved its rights to pay or recover stipend in lieu of the notice period. However, the company reserved the* right to relieve the petitioner even before the expiry of the notice period without compensating the petitioner for the unexpired period.

3. Upon completion/termination of the training, the petitioner was required to surrender to the company all correspondence and data, etc. belonging to it or relating to its business without retaining any copies thereof with him. It was stipulated that on satisfactory completion of training and subject to suitable vacancy in the company, the petitioner may be offered regular employment in the non-management cadre, though the company was not bound to do so on the terms and conditions of service to be decided by the company.

4. The petitioner submits that he satisfactorily completed his training period. However, the same was extended vide letter dated December 27, 1990 up to January 30, 1991. Even though the petitioner was representing and was working diligently, on February 1, 1991, the petitioner was told that his services are not required. The petitioner immediately made representation dated February 24, 1991 and March 11, 1991 notifying the respondent that he had rendered diligent and continuous service of 287 days and that his services could not be terminated by the management without payment of retrenchment compensation and his services shall stand continued with the company. As the respondent did not respond favorably, the petitioner raised the industrial dispute. The conciliation proceedings failed and appropriate Government on being satisfied about the existence of industrial dispute between the parties made a reference for adjudication under Section 10(1) and Section 12(5) of the Industrial Disputes Act vide an order number F.24(1087)/92-LAB/13396/401 dated March 6, 1992 on the following terms:

Whether the termination of services of Shri R. Kartik Ramachandran is illegal and/or unjustifiable and if so, to what relief is he entitled and what directions are necessary in this respect

5. The petitioner raised a claim on the above terms which was vehemently disputed by the respondent. The parties proceeded to evidence which resulted in adjudication by the Labour Court. Vide an award dated April 27, 2002 the Labour Court rejected the claims of the petitioner primarily on the issue that the petitioner had failed to substantiate his claim that he was in the employment of the management for any manual, clerical, supervisory and mechanical work and was not a workman under Section 2(s) of the Industrial Disputes Act, 1947 having been engaged only as a 'trainee'.

6. This award dated April 27, 2002 has been assailed before this Court by way of the present writ petition.

7. The challenge to the award has been made by learned Counsel for the petitioner on the ground that perusal of the appointment letter would show that though the appointment of the petitioner was couched as a 'trainee steno clerk expeditor', however, the same was really a facade for employment of the petitioner. It has been strenuously urged that the petitioner rendered services of a regular steno clerk for which purpose he has relied upon the enclosure to the appointment letter dated July 1, 1990 which sets out the objectives of the trainee steno clerk expeditor. It has been urged that the petitioner has performed duties satisfactorily and that his training period was extended mala fide. Placing reliance on Clause 4 of the appointment letter whereby the management has stated that the petitioner would participate in the Provident Fund Scheme of the company as well as the restrictions contained in Clauses 6, 9 and 10 of the appointment letter, it was submitted that these were all stipulations by which only a regular employee can be bound, it is submitted on behalf of the petitioner that the Clause 7 relating to transfer from one department, location, factory, etc. to other itself shows that the employment of the petitioner was in respect of regular service and that petitioner was really an employee of the respondent performing clerical functions and was, as such, covered under Section 2(s) of the Industrial Disputes Act.

8. Learned counsel for the petitioner urged that Section 2(s) of the Industrial Disputes Act which defines 'workman' includes an 'apprentice' within the definition of the expression. As such, the petitioner being a trainee, was covered under the definition of 'workman' and the work being done by him would be that of an apprentice.

9. Placing reliance on S. K. Mini v. Carona Sahu Company Limited , Mr. B.K. Pal, learned Counsel for the petitioner has submitted that the issue as to whether a petitioner is a workman of the company under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to the principle nature of his duties and functions and is required to be determined with facts and circumstances of the case and material on record irrespective of his designation. Finding fault with the award, it is contended that the learned Labour Court has erred in not going into the question of the real nature of work performed by the petitioner at all.

10. It has further been submitted that merely using the expression 'stipend' for describing the payment being made to the employee would not disprove the relationship of master and servant. Reliance has been placed on Shining Tailors v. Industrial Tribunal II, U.P. . Reliance has been placed on Guest Keen Williams Ltd. v. Assistant Labour Commissioner, Government of West Bengal and Ors. 1994-III-LLJ(Suppl)-37 (Cal) to submit that despite an agreement stating that the employee was an officer and not a workman, the employee is not estopped from contending that he is a workman.

11. On the other hand, learned Counsel for the respondent has submitted that challenge to the award was misconceived. In the appointment letter dated April 20, 1990, it was stated that the petitioner was appointed as a trainee in a training scheme. The petitioner was not assigned any regular duty but was undergoing training. Clause 13(b) of the letter of appointment in this behalf has been pointed out to submit that it was clearly stipulated that on successful completion of training, the petitioner may be offered regular employment.

12. It has been submitted by Mr. Chachra, learned Counsel for the respondent that such an issue arose in Management of Otis Elevator Company (India) Ltd. v. Presiding Officer, Industrial Tribunal III and Another 2003-III-LLJ-61 (Del). It has been explained that the petitioner has been permitted to participate in the Provident Fund Scheme for trainees only in order to avoid penal consequences under the Employees' Provident Funds and Miscellaneous Provisions Act, 1972.

13. Having heard counsel of parties at length and perused the available record, I find that the appointment letter dated April 20, 1990 is specific in terms. It clearly informs the petitioner that he has been appointed as a 'trainee steno clerk expeditor' under the training scheme of the company. On completion of the training, there was no guarantee that the petitioner would definitely be given employment. In this behalf, Clause 13 of the agreement deserves to be noticed and the same reads as under:

13. On satisfactory completion of the training and subject to a suitable vacancy in the company, you may be offered, though the company is not bound to do so, regular employment in the non-management cadre of the company on such terms and conditions of service that may be decided by the company.

You will be considered as an employee of the company only from the date you are absorbed in the regular employment. The period of training will not be taken into account for the purpose of computing any benefits that you may thereafter be eligible for.

There is no dispute that the petitioner unconditionally accepted this offer of undergoing training and joined the respondent on the stipulations contained therein.

14. I find that the respondent has set out the objectives of such training programme in the enclosure relied upon by the petitioner.

These objectives dated July 1, 1990 clearly stipulated that apart from the objectives set out in this communication, all other terms in the appointment letter would be applicable. The tenor of these objectives shows that the purpose of the training programme was to enable a proposed employee to become aware of the functioning of the respondent by asserting the Delhi office in its various facets. It was in order to train the person that he was to perform different functions.

15. The dispute which was referred for adjudication to the Industrial Tribunal as noticed above related to termination of the services of the petitioner. The petitioner had based his claim principally on the fact that he had worked with the respondent for more than 240 days and he had been objecting against the company's actions in terminating his service w.e.f. February 1, 1991 after continuous service of 287 days without compliance with the provisions of Section 25-F of the Industrial Disputes Act, 1947 which amounted to illegal retrenchment.

16. Perusal of the record shows that the petitioner did not at all lead any evidence in order to support of the contention that he was covered under the definition of Section 2(s) of the Industrial Disputes Act, 1947. I also notice that a specific objection had been taken by the respondent in its written statement in this regard to the following effect:

2. That the appropriate Government has before making the reference in question, failed to appreciate that there did not exist or apprehended to exist any industrial dispute within the purview of the Industrial Disputes Act, 1948 as relationship of an employee/workman and the employer/ management is a sine qua non for the existence of such a dispute. As Shri Kartik Ramachandran was only a trainee and not an employee/workman qua the respondent, he could not raise an "industrial dispute" with the respondent. The appropriate Government ought to have appreciated this contention of the respondent. But the said Government seems to have not applied its mind to that and made reference to this Hon'ble Court which is neither legal nor proper. The same is liable to be rejected and answered accordingly.

17. The petitioner has proceeded in the matter on the presumption that he is not required to establish the maintainability of his claim or the nature of his employment. I find that petitioner has not led any evidence on the aspect of the nature of his duties in affidavit, dated September 6, 1995 filed before the Labour Court. On the contrary in the affidavit filed, the petitioner has accepted that he completed the training period of six months on October 19, 1990.

18. So far as the arguments on behalf of petitioner to the effect that expression "workman" in Section 2(s) of the Industrial Disputes Act, 1947 includes an 'apprentice' is concerned, the petitioner is covered under such definition. My attention has been drawn to the provisions of the Apprentices Act, 1961. Section 2(aa) of the Act defines an 'apprentice' to mean a person who is undergoing apprenticeship training in pursuance to the contract of apprenticeship.

19. As per Section 2(aa), apprenticeship training means a course of training in any industry undergone in pursuance of a contract of apprenticeship, and under prescribed terms and conditions which may be different for different categories of apprentices. Under Section 4(4), every contract of apprenticeship entered into shall be sent by the employer, within such period as may be prescribed to the Apprenticeship Adviser for registration.

20. There can be no dispute with the principles of law laid down by the Apex Court in S.KMaini v. Carona case (supra). It is well settled that the designation of an employee is not of importance and it is the real nature of duties being performed by the employee which would decide as to whether an employee is a 'workman' under Section 2(s) of the Industrial Disputes Act. The determinative factor is the main duties performed by the employee and not the work done incidentally. The nature of duties performed by the workman is a question of fact. An employee is required to set up such plea and to lead evidence in support thereof. Only then can the Labour Court go into the facts and circumstances of the case and based material on record, decide as to the real nature of duties and functions being performed by the employee in all cases.

21. Such a question would arise if a workman was required to do more than one kind of work. However, no such issue has been urged on behalf of the petitioner before the Labour Court. Before this Court an assertion has been made that in view of the objectives of the training scheme, it is to be held that the petitioner was performing clerical duties and undertaking typing work and was, therefore, covered under the definition of 'workman'. As already noticed hereinabove, there is not an iota of pleading or evidence led by the petitioner in this respect. It is also not open to the petitioner to lay a challenge to the award based on the plea that was not raised before the Labour Court.

22. For the same reason, I find that there is no challenge to the appointment letter dated April 20, 1990 before the industrial adjudicator. The petitioner has accepted that he was appointed to undergo the training programme. This fact is mentioned in his affidavit by way of evidence. Therefore, the admitted position is that the appointment of the petitioner on April 20, 1990 was only in order to enable him to undergo training and that the respondent did not create any contract of employment between the parties.

23. In the judgment reported in Shining Tailors v. Industrial Tribunal II and Ors. (supra), it was urged that payment was made on piece rate to the employee and for this reason there was no relationship of master and servant between the parties. In these circumstances, the Court held that the test to determine the relationship of the employer and the workman was a test of control and not the method of payment. There is no such argument laid before the Labour Court nor any contention to this effect has been urged by the respondent in this Court.

24. My attention has been drawn to the pronouncement of this Court in Management of Otis Elevator Company Ltd. v. Presiding Officer, Industrial Tribunal II and Another (supra). I find that the issues raised before the Court in his judgment were similar to those raised in the present case and after detailed consideration thereof the Court has held as under:

5. Reference is made to the letter dated June 1, 1987 issued by the petitioner to the respondent No. 2. The said letter makes it crystal clear that the respondent No. 2 was taken into the petitioner company for being given training on specified terms and conditions. In terms of the said letter, he was to be treated as a field/trade trainee with a clear stipulation therein that he would be imparted training in the elevator trade initially for a period of twelve months during which period or at the end of which his training could be terminated without notice and without assigning any reason. It was also stipulated therein that on satisfactory completion of the above training for a period of twelve months his training with the company would continue for a remaining period of two years and during the said training period his progress would be carefully watched and subject to his training being found satisfactory and in the vent of there being further vacancies in the organisation he would be offered suitable employment. It was also stipulated that during the training, the respondent would be paid a stipend. The aforesaid stipulations and the terms and conditions of his engagement as a trainee clearly prove and establish that the respondent No. 2 was engaged as a trainee in the elevator trade. The training was initially for a period of one year. After successful completion of the same, the respondent No. 2 was to receive further training for a period of two years after satisfactory completion of which and subject to availability of vacancies in the organisation, he would have been offered suitable employment. It is also seen from the records that even before the completion of the first twelve months of his training the petitioner was informed by letter dated May 31, 1988 that from the assessment made it appeared that the performance of the respondent No. 2 was not satisfactory. He was also informed that the petitioner would have terminated his training as per Clause 2 of the letter dated June 1, 1987 but in order to offer him one more opportunity to improve he was allowed to continue that his performance for the next three months, i.e., up to August 31, 1988, could be observed, and if there was no proper improvement in constrained to terminate his training w.e.f. September 1, 1988. Thereafter, the performance of the petitioner was again assessed and an interview was also taken on August 26, 1988. However, the aforesaid assessment and the result went against the respondent No. 2 and his performance was found to be poor and, therefore, the petitioner discontinued the contract of training of the respondent No. 2 w.e.f. August 31, 1988. While doing so, reference was made to Clause 2 of the contract of training. The aforesaid engagement of the respondent No. 2 was considered by the Presiding Officer, Industrial Tribunal and he held that in view of the nature of the engagement of the respondent No. 2 he could be deemed to be a workman as envisaged under Clause(s) of Section 2 of the Industrial Disputes Act which defies the clause "workman". The aforesaid conclusion and the findings of the Industrial Tribunal is challenged before me.

25. The principles laid down in this judgment apply on all fours to the instant case. The findings of fact of the Labour Court cannot be assailed on any legally tenable grounds.

26. I also find force in the submissions on behalf of the respondent that the Provident Fund deduction was in terms of the schemes applicable to the trainee. Therefore, no benefit can be drawn by the petitioner to the same.

27. For all the above going reasons, I find no merits in the writ petition which is hereby dismissed.