The Management ofAudco India Ltd v. The Presiding Officer & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.03.2009CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.17328 of 1999The Management ofAudco India Ltd.,P.B.No.2, B-8,M.M.D.A. Industrial Area,Maraimalai Nagar,Chengelput District...Petitionervs.1. The Presiding Officer, Principal Labour Court, High Court Compound, Chennai.2. M.Ravi..RespondentsPetition praying to issue Writ of Certiorari to call for therecords of the first respondent in I.D.No.8 of 1996 and quash theaward passed therein dated 13.7.1999.For Petitioner :Mr.DwarakanathFor Respondents :Mr.S.Ravi for R-2O R D E RThe petitioner is the management. Aggrieved by the awardpassed by the first respondent/Labour Court in I.D.No.8 of 1996dated 13.7.1999, the present writ petition has been filed. By theimpugned award, the labour Court directed reinstatement of thesecond respondent with service continuity and backwages togetherwith all other attendant benefits.2.The writ petition was admitted on 27.10.1999 and an interimorder was granted. On 11.01.2001, when the matter came up forfurther orders, this Court directed the petitioner management topay a sum of Rs.1,000/- in terms of Section 17-B of the IndustrialDisputes Act (for short 'the I.D. Act') from 25.10.1999 andcontinue to make monthly payments till the disposal of the writ https://hcservices.ecourts.gov.in/hcservices/ petition. Subsequently, the interim stay was made absolute withthe above condition by a further order dated 30.12.2002.3.It is the case of the second respondent that he joined theservices of the petitioner management on 4.6.1993 as anapprentice. His services were abruptly terminated on 7.7.1995without assigning any reasons. Therefore, he raised an industrialdispute before the Assistant Labour Commissioner, Chennai. Sincethe officer could not bring about the mediation he submitted hisfailure report on 8.12.1995. On the strength of the failurereport, the petitioner filed his claim statement and it was takenon file by the first respondent as I.D.No.8 of 1996. On noticefrom the labour Court, the petitioner management filed a counterstatement dated Nil (October 1996). The contention raised by thepetitioner was that the second respondent, being an apprentice, isnot a workman within the meaning of Section 2(s) of the I.D. Actand therefore, the dispute was not maintainable. It is alsostated that the second respondent's appointment is based on theapprentice agreement signed by him and it comes to an end on itsown after the period stated in the said agreement. 4.Before the first respondent/Labour Court, on behalf of thesecond respondent, he examined himself as W.W.1 and marked 5documents as Exs.W.1 to W.5. On the side of the petitionermanagement, two witnesses were examined as M.W.1 and M.W.2 and 16documents were filed and they were marked as Exs.M.1 to M.16. Thelabour Court, on the basis of the evidence (both oral anddocumentary) held that since the second respondent was not an'apprentice' in terms of the Apprentice Scheme conceived under theApprentices Act, 1961, he cannot be non-suited by the Court. He isthe workman within the meaning of Section 2(s) of the I.D. Act.It also disbelieved the evidence of M.W.2, who said that since thesecond respondent's service were not satisfactory, he was not madepermanent. Though an attempt was made to show that the secondrespondent, during his apprenticeship period, was given in-housetraining by M/s.Sivasubramaniam and Umapathy, but those personshave not given any report regarding the unsatisfactory nature ofthe second respondent's work. The labour Court also found thatUmapathy, though was very much in company's service, was notexamined. Even the so-called short fall in the work of the secondrespondent was not intimated to him. Therefore, in that view ofthe matter, the labour Court held that there was an infraction ofSection 25-F of the I.D. Act and as the management had notcomplied with the mandatory condition precedent, the terminationof the second respondent was illegal and opposed to the principlesof natural justice. It is in that view of the matter, it hadordered reinstatement with all consequential benefits. https://hcservices.ecourts.gov.in/hcservices/

5.Mr.Dwarakanath, learned counsel for the petitionermanagement contended that the Company's certified standing orderin para 3.5 provides for engagement of apprentice for the purposeof learning a trade on the terms of training as may be fixed bythe Company for a period not exceeding three years. Therefore,they have a right to bring about the termination if the work wasnot satisfactory. He also attempted to state that persons, whowere engaged similarly, have left the services on completion oftheir training period and gave a list of 11 workers. Suchcontentions cannot be entertained at this stage and the petitionershould have convinced the labour Court about the true nature oftheir contract and also the kind of training they have imparted tothe workmen. 6.The learned counsel relied upon the judgment of this Courtin Mgt., TI Diamond Chain Ltd. v. Presiding Officer reported inVol.101 (2002) FJR 775 and placed reliance upon the followingpassage found in the said judgment:-" A perusal of clause 2 of the certified standing ordersshows that there are five categories of workmen andapprentice being the last, casual worker is just abovethe apprentice and temporary workmen is above the casualworkman and probationer is above the temporary workmanand permanent workmen is to the highest of the cadre.Therefore, merely because, the certified standing ordersapply to apprentice, the apprentices do notautomatically get the status of permanent employee."7.The learned counsel also submitted that the Supreme Courtin National Small Inds. Corpn. Ltd. v. V.Lakshminarayananreported in 2006 (4) L.L.N. 590 dealt with a case of an apprenticecovered by the Apprentices Act and in terms of Section 18 of theAct, such a person cannot be held to be a 'workman' within themeaning under the Industrial Disputes Act.8.Per contra, Mr.Ravi, learned counsel for the secondrespondent/workman brought to the notice of this Court thejudgment of the Supreme Court in D.P.Banerjee v. S.N.BoseNational Centre for Basic Sciences, Calcutta & Others reported in1999 (1) L.L.J. 1054. In the light of the said judgment, hesubmitted that an order of termination will have to be construedin each case. The language or words employed in the order oftermination will determine whether it was stigmatic or not. Thelearned counsel for the workman also placed reliance upon theobservation made in paragraph 7 of the judgment of the SupremeCourt in V.P.Ahuja vs. State of Punjab reported in 2000 (2)L.L.N. 47, which reads as follows:-"7. A probationer, like a temporary servant, is also https://hcservices.ecourts.gov.in/hcservices/ entitled to certain protection and his services cannotbe terminated arbitrarily, nor can those services beterminated in a punitive manner without complying withthe principles of natural justice."9.Though in this case, this Court is inclined to accept thefinding of the labour Court with reference to the status of thesecond respondent as a 'workman' within the meaning of theIndustrial Disputes Act, it is significant to refer to para 21 ofthe judgment in National Small Inds. Corpn. Ltd. v.V.Lakshminarayanan's case, (cited supra), which may be usefullyextracted below:-"21.Even if it is accepted that the respondent was aworkman within the meaning of the 1947 Act, on accountof his contractual tenure, his case would come withinthe exception of C1. (bb) of S.2 (oo) thereof. In sucha case also, the provisions of S. 25F of the said Actwould have no application to the respondent's case."10.The above aspect has not been gone into by the labourCourt and it has totally misdirected itself on the question ofconstruing the term of apprenticeship given to the secondrespondent as well as the effect of Section 2(oo)(bb) of the I.D.Act.11.In the light of the decision of the Supreme Court inNational Small Inds. Corpn. Ltd., v. V.Lakshminarayanan's case,cited supra, the impugned Award will have to be set aside andaccordingly, it is set aside. The writ petition is allowed.However, there is no order as to costs. SraSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Presiding Officer,Principal Labour Court, High Court Compound, Chennai.SGL(CO)SR/12.3.2009 order inW.P.No.17328 of 1999