Sri.S.S.Mukunda vs The Management Of M/S Volvo ...
2023 Latest Caselaw 4979 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF JULY, 2023

                          BEFORE

         THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

         WRIT PETITION No.37005/2018 (L-RES)

BETWEEN:

1.    SRI S.S. MUKUNDA
      S/O. SEETHA NAIK,
      AGED ABOUT 39 YEARS,
      RESIDING AT SOMANAHALLI,
      GANADHAL AT POST,
      C.N. HALLI TALUK,
      TUMKUR DISTRICT - 572 218.

2.    SRI P. KARTHIK
      S/O. SRI PALAMAVELU,
      AGED ABOUT 36 YEARS,
      RESIDING AT NO.22, 6TH MAIN,
      9TH CROSS, BALAJI LAYOUT,
      NAGASHETTIHALLI,
      BANGALORE - 560 092.

3.    SRI AMARNATH .M
      S/O. MUNIKRISHNAPPA,
      AGED ABOUT 31 YEARS,
      RESIDING AT NO.94, 20TH CROSS,
      AKSHAYANAGAR, 2ND BLOCK,
      RAMAMURTHY NAGAR,
      BANGALORE - 560 016.

4.    SRI KUMAR .M
      S/O. MUNIVENKATAPPA,
      AGED ABOUT 32 YEARS,
      RESIDING AT THIRUMALAHALLI VILLAGE,
      GATTUMADHAMANGALA AT POST,
      BANGARPET TALUK,
      TUMKUR DISTRICT - 570 018.          ... PETITIONERS

(BY SRI A.V. AMARNATHAN, ADVOCATE)
                               -2-


AND:

THE MANAGEMENT OF
M/S. VOLVO CONSTRUCTION EQUIPMENTS
INDIA PVT. LTD.
(ALSO KNOWN AS VOLVE CONSTRUCTION EQUIPMENT)
YELACHANAHALLI VILLAGE,
TAVAREKERE AT POST,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT - 562 122.    ... RESPONDENT

(BY SRI C.K. SUBRAMANYA, ADVOCATE FOR
    SRI B.C. PRABHAKAR, ADVOCATE)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER OF THE SECOND ADDITIONAL LABOUR COURT AT
BANGALORE       DATED       03.04.2018       IN      I.D.NO.29/2014,
I.D.NO.30/2014,   I.D.NO.31/2014      AND    I.D.NO.32/2014     IT'S
MARKED IT AS ANNEXURE-A AND ALLOW THE WRIT PETITION
DIRECTING; a) DIRECT THE RESPONDENT TO REINSTATE THE
PETITIONERS TO THE RESPECTIVE JOB; b) DIRECTED THE
RESPONDENT TO CONSIDER THE PETITIONERS AS REGULAR
EMPLOYEE      FROM    THE     DATE     OF     THEIR     RESPECTIVE
APPOINTMENT; c) DIRECT THE RESPONDENT TO PAY THE
REGULAR SALARY PAYABLE TO THE REGULAR EMPLOYEES FROM
THE DATE OF APPOINTMENT, AFTER DEDUCTING THE SALARY
ALREADY PAID.


       THIS   WRIT   PETITION       HAVING    BEEN     HEARD    AND
RESERVED ON 20/07/2023 FOR ORDERS AND COMING FOR
PRONOUNCEMENT        OF     ORDER     THIS    DAY,     THE   COURT
PRONOUNCED THE FOLLOWING:
                                 -3-

                              ORDER

The petitioners who were the company trainees

have assailed the order dated 03.04.2018 in

ID.Nos.29/2014, 30/2014, 31/2014 and 32/2014 on

the file of II Addl. Labour Court, Bangalore, whereby

the claim statement filed under Section 10(4A) of the

Industrial Disputes (Karnataka Amendment) Act, 1988

("the Act" for short) came to be rejected.

2. It is the case of the petitioners, that

petitioners were appointed as the company trainees

and an appointment letters were issued incorporating

the terms and conditions of appointment on 18.11.2009

for a period of 24 months on a stipend of Rs.6,500/-

per month for the first year and Rs.7,500/- per month

for the second year and extended for another 36

months vide another appointment letter dated

17.06.2011 for a period of 36 months on a stipend of

Rs.8,750/- per month for the first year and Rs.9,750/-

per months for the second year (Rs.11,000/- per month

consolidation) and for the third and fourth year

consolidated stipend of Rs.12,500/- per month. It is

stated that after the appointment, no training was

given to the petitioners and the order of termination

was issued by the respondent - company on

03.04.2014 and an industrial dispute was raised by the

petitioners before the Labour Court contending that

several unreasonable conditions were incorporated by

the management in the appointment letter and no

training was given to the petitioners and their services

were terminated illegally and the respondent -

company has practiced unfair labour practice and the

order of termination passed by the respondent -

company is unsustainable and liable to be set aside.

3. The respondent - company appeared and

filed counter statement contending that the service

conditions of the workmen were governed by the

certified standing orders of the factory, terms of

appointment and settlement reached with the union

from time to time and the certified standing orders of

the company define a trainee at order No.3.5 as "a

trainee is one who has been engaged as a learner for

receiving training who may or may not be paid any

stipend or remuneration during the period of his

training" and after completion of the training period, his

engagement will come to an end automatically. The

trainees were not guaranteed employment in the

respondent - company and the terms offered have

been stated.

4. Based on the pleadings, the Tribunal framed

the following issues:

(i) Whether the first party is a workman as defined under Section 2(s) of the ID Act?

(ii) Whether the order of termination dated 03.04.2014 in ID.29, 30, 32 of 2014 (dated 16.01.2014 in ID.31/2014) passed by the second party management is illegal?

(iii) Whether the second party proves that this court has no jurisdiction to entertain this

application as stated in Para 24 and 25 of the counter statement?

(iv) Whether the first party is entitled to the relief which he has claimed?

5. The workmen were examined separately and

independently as WW.1 in all the ID.Nos.29, 30, 31 and

32 of 2014 and got marked documents. In

ID.No.29/2014, the workman got marked 14

documents as Exs.W.1 to W.14, in ID.No.30/2014 the

workman got marked 11 documents as Exs.W.1 to

W.11, in ID.No.31/2014 the workman got marked 6

documents as Exs.W.1 to W.6 and in ID.No.32/2014

got marked 12 documents as Exs.W.1 to W.12 and the

respondent - company examined one witness as MW.1

in all the above four industrial disputes and got marked

44 documents as Exs.M.1 to M.44.

6. The Tribunal by the impugned order

considering the material on record held that the

petitioners are not the workmen being the company

trainees and the termination order issued by the

respondent - management as per the training letter is

legal one and dismissed the claim applications filed by

the petitioners under Section 10(4A) of the ID Act.

Aggrieved by which, the present petition by the

petitioners - workmen.

7. Heard Sri A.V. Amaranathan, learned

counsel for the petitioners and Sri C.K. Subramanya for

Sri B.C.Prabhakar, learned counsel for the respondent -

management.

8. The issue involved in this petition is,

whether the petitioners who were appointed as the

company trainees comes under the meaning of

workmen as defined under Section 2(s) of the ID Act.

9. This Court has carefully considered the rival

contentions urged by learned counsel for the parties

and perused the material on record.

10. The definition of "workman" as envisaged

under Section 2(s) of the ID Act needs to be considered

in the present facts.

Ingredients of definition of "workman" is,

(i) any person employed, but does not include any such person

(ii) "Apprentice"

     (iii)   Employed in an industry
     (iv)    For hire or reward
     (v)     Relationship of employment


     11.     The expression "apprentice"     has not been

defined in the ID Act. In the shorter Oxford Dictionary,

an "apprentice" has been defined as a "learner of a

craft"; one who is bound by a legal agreement to serve

an employer for a period of years, with a view to learn

some handicrafts, trade etc., in which employer is

reciprocally bound to instruct him. In the Chambers

Dictionary, to serve apprenticeship means, to undergo

training of apprentice.

12. Thus, the contract of apprenticeship

accentuates teaching on part of the master and

learning on the part of the apprentice as a primary

object of "contract of apprentice". In Section 2(s) of

the ID Act, an apprentice has specifically been included

in the definition of workman, but in the subsequent

legislation, the Apprentice Act, 1961 (Act 52 of 1961),

Section 2(s)(aa) defines the term "apprentice" to mean

"a person who is undergoing apprenticeship" training is

designated trade in pursuance of a contract of

apprenticeship and Section 18 of the Apprentices Act

further provides that the apprentices are trainees and

not workers.

13. The issue whether a trainee is a workman or

not is a matter of evidence and the Court while dealing

with such an issue has to consider the factors such as

ratio of deployment of a person in the guise of trainees

to permanent employees, the kind of work extracted

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from such persons record of training maintained by the

employer, factor of training payment of overtime.

14. The undisputed fact is that the petitioners

were appointed as company trainee as is evident from

Company Training Scheme Ex.W-4 which is one such

document of the petitioners. WW.1 in his cross-

examination has clearly admitted that petitioner No.1

had joined as a trainee on 23.11.2009 and the training

was for 24 months. The management had issued

trainee appointment order and they have accepted the

terms and joined the training. The relevant portion of

the cross-examination of WW.1 in ID 30/2013 is as

under:

"17. It is true to suggest that I have jointed as a trainee on 23.11.2009. Training was for 24 months. The management has issued trainee appointment order. I have accepted the terms and joined as a Trainee. I was posted to take training in Road Machinery Frames Fabrication. The II party management is in the business of production of construction

- 11 -

equipments. It is true to suggest that the management has introduced Excavator Manufacturing activities in 2010-2011 in the place where Road Machinery Frames Fabrication manufacture. It is true to suggest that on 17.06.2011 my training period was terminated by issuing a letter. It is true to suggest that thereafter fresh trainee order was issued for Excavator Manufacturing activities. I gave willingness for this. I was taking training in the Excavator Manufacturing activities.

18. It is true to suggest that in the month of June 2013 due to lack of orders there is a reduction in the work of Excavator Manufacturing activities. It is true to suggest that the situation continued subsequent to June 2013. It is true to suggest that permanent workers were also not having sufficient work.

Management has gave the reason for terminating the trainee workers in 2014. As per Ext.W-8 and Ext.W-9 termination order were issued my account is also settled. 32 to 35 trainees were terminated, witness states that they have been appointed in another department. Arun Kumar, Gangadhar and 5 persons were reappointed. It is not true to

- 12 -

suggest that I am telling false and no trainee is appointed after my termination."

15. The perusal of the cross-examination of the

trainee employee would make it evident that the

petitioners had joined the respondent - company as the

trainees were issued with trainee appointment order

and were posted to take training in road machinery

fabrication and during the period of training their

services were terminated by issuing a letter.

16. It is settled proposition of law that the

designation of an employee is not of importance, what

is to be considered is ,the real nature of duties being

performed by the employees which would decide as to

whether an employee is a workman under Section 2(s)

of the ID Act. Therefore, Section 2(s) of the ID Act

envisages the determinative factor in the work/duties

performed by the employees depending upon the facts

of the case. The management has specifically asserted

to the effect that there is no relationship of employer

- 13 -

and employee between the management and the

petitioners and the work assigned to the petitioners

herein was in the nature of trainee and not as a

workman and there existed no relationship of employer

and the employee between the parties. The essential

condition of a person being a workman within the terms

of definition under Section 2(s) of the ID Act is that he

should be employed to do the work in the industry and

there should be, in other words, an employment by his

employer and that there should be a relationship of an

employer and employee or the master and servant

unless a person is, thus, employed there can be no

question of his being a workman within the definition of

term as contained in the Act as held by the Apex Court

in Dhrangadhara Chemical Works Ltd., vs. State of

Saurashtra [(1957) I LLJ 4477 (Dhrangadhara

Chemical Works Ltd.).

17. Learned counsel for the respondent has

relied upon the judgment of the Division Bench of this

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Court in the case of Tungabhadra Sugar Works (P)

Limited vs. Labour Court, Mangalore & others

[1983 (1) LLJ 465 (Kant), wherein the Division

Bench of this Court has held at para No.6 as under:

"6. This takes us to the definition of the expression "workman" occurring in S.2(s) of the Act which reads as follows:

" 'Workman' means any person (inclosing an apprentice) employed in any industry to do any skilled or unskilled manual, Supervisory, technical or 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 retrenched in connection with or as to 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 the Army Act, 1950, or the Air Force Act, 1950 or the Navy (Discipline) Act, 1934; or

- 15 -

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

(iii) who is employed mainly in a 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 is clear from the definition of the word "workman" that any person including an apprentice can be regarded as a workman if he is employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. In other word the existence of relationship of an employer and an employee is of the essence of the matter. The employment has necessarily to be in respect of an industry. Any person, whether he is an apprentice or not, can be regarded as a workman only if he is employed in an industry to do any skilled or unskilled manual, Supervisory, technical or electrical work for hire or reward,

- 16 -

whether the terms of employment be expressed or implied. It is; therefore, clear that it is not enough to establish that the person claiming such a status is an apprentice. Whether the person claiming status as a workman is an apprentice or any other person, it has to be established that he is employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be expressed or implied. The view which we are inclined to take in this behalf receives support from the observations of the Supreme Court in Dhrangadhara Chemical Works Ltd. v. State of Saurashtra [1957 I LLJ 4477], wherein the Supreme Court has observed as follows:

"The essential condition of a person being a workman within the terms of this definition (in S. 2(s)) is that he should be employed to do the work in that industry, that there should be, in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be no question of his

- 17 -

being a workman within the definition of the term as contained in the Act."

It is thus clear that the appellant Management would be justified in contending that Srinivasa Murthy is not a workman on the ground that there is no relation of an employer and an employee between the parties. It is not disputed that the appellant is an industry. The question for consideration is as to whether a finding has been recorded on the vital dispute between the parties in regard to the existence of relationship between the parties of employer and employee."

18. Thus, from the law declared by the Division

Bench of this Court, it can be envisaged that the law

declared is that, when a person claiming status as a

workman is an apprentice or any other person, it has to

establish that he was employed in an industry to do any

skilled or unskilled manual, supervisory, technical or

clerical work for hire or trade, whether the terms of

employment are expressed or implied. In the instant

case, the letter of appointment is that of a trainee, the

work assigned is a training period and there was no

- 18 -

guarantee of employment after the successful

completion of training. Mere completion of the training

conferred no right on the petitioners to claim

appointment. The categorical admission of the

petitioners in their claim petition states that they were

asked to take training in the road machinery frame

fabrication and the management is in the business of

production of construction equipments and the

petitioners have admitted that the company also had

permanent workers who were also having sufficient

work. The Tribunal on consideration of material, has

come to the conclusion that the petitioners are not the

workmen as defined under Section 2(s) of the ID Act,

when the terms and conditions of the trainee

categorically provided that there will be no guarantee in

absorbing the trainee after the completion of his

training as a regular employee such a trainee cannot

seek employment after the termination of the training

arrangement. The perusal of Ex.M.11 the Company

- 19 -

Training Scheme in respect of one of the petitioners -

P. Karthik at page No.89 reads as under:

"In the event of you being deputed for training abroad or in India at the expense of the Company, the termination/notice clause contained herein stands modified to the extent that your services may be terminated at any time by four calendar months' notice in writing either side. You shall serve this four months' notice period to enable the Company to make alternate arrangements to impart knowledge/skills obtained by you during the training. In case you leave our employment within the said two years after the completion of such training, the Company shall have the right to deduct as liquidated damages amounts equivalent to all expenses incurred by the Company in deputing you for the said training."

19. This having been categorically mentioned,

the terms and conditions were accepted by the

trainees, the termination of the trainees that too after

the completion of the training period will not be illegal

particularly when such a workman under the Industrial

disputes Act and a trainee cannot agitate alleging that

- 20 -

compliance of Section 25F of the ID Act has not been

made.

20. Learned counsel for the petitioners relied

upon the judgment of the Co-ordinate Bench of this

Court in the case of The Management of M/s.

Recipharm Pharma Services Pvt. Ltd., vs.

G.Vasanthkumar & others [W.P.No.1481/2020

and connected matters disposed on 08.05.2020]

(The Management of M/s. Recipharm Pharma

Services Pvt. Ltd.) to contend that in similar matters

the Co-ordinate Bench of this Court has held that the

workman joining the position of trainee production and

the same was in issue therein and confirmed in

W.A.No.330/2020 and connected matters disposed of

on 23.07.2021. The facts in the said case are clearly

distinguishable since in the case of The Management

of M/s. Recipharm Pharma Services Pvt. Ltd.,

there was no evidence forthcoming to show that there

was a trainer for the respondent and period of

- 21 -

evaluation of the so called training and the parties

therein failed to let-in evidence to establish the

relationship of employer and employee between the

petitioners and the respondent and in the absence of

any material to show that any training was imparted to

the respondents under the training scheme the Co-

ordinate Bench of this Court held that the petitioner

therein is to be defined as workman under Section 2(s)

of the Act and the termination by the Corporation is in

violation of Section 25F of the ID Act. It is relevant to

note that the Co-ordinate Bench of this Court in the

case of The Management of M/s. Recipharm

Pharma Services Pvt. Ltd., held at para No.30 as

under:

"30. It is well settled that designation of an employee is not of importance and it is the real nature of the duties being performed by the employee which would decide as to whether an employee is a workman under Section 2(s) of the Act. The determinative factor is the work/duties performed by the employee which

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depends upon the facts of the case. The nomenclature and the period of the appointment are immaterial."

(Emphasis supplied)

21. The Co-Ordinate Bench of this Court in the

said judgment also held that the designation of an

employee is not of importance, but the real nature

of duty that is being performed by the employee

has to be considered to term the employee as a

workman under Section 2(s) of the ID Act. As stated

supra, the material on record are sufficient to hold that

the petitioners were appointed as company trainees,

the terms and conditions were mentioned in the

contract between the petitioners and the respondent-

management was that there is no guarantee of

absorbing the company trainee after the completion of

his training period as a regular employee and the

categorical admission of the petitioner about the

training being conducted by the management in the

road fabrication and the duties performed by the

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employee with that of a trainee. The perusal of the

order of the Labour Court and the manner in which the

Labour Court has considered the proposition of law and

facts of the case, this court is of the considered view

that the order of the Labour Court does not call for any

interference.

22. For the reasons stated supra, the point

framed for consideration is answered accordingly and

this Court pass the following:

ORDER

(i) Writ petition is dismissed.

(ii) The impugned order dated 03.04.2018 in

ID.Nos.29/2014, 30/2014, 31/2014 and

32/2014, on the file of II Addl. Labour Court,

Bangalore stands confirmed.

SD/-

JUDGE S*