M/S. BIESSE MANUFACTURING COMPANY LTD v. SRI OMKARAMURTHY T.G

the services of Sri Omkaramurthy, son of Gangadharaiah with effect from 25.09.2013?

2. If not what relief the workman is entitled to?”

3. Respondent filed claim statement seeking to set aside the order of termination and grant him the relief of reinstatement along with all benefits. The petitioner- management filed objections/counter statement resisting the claim of the respondent, the Labour Court by the impugned order set aside the order of termination and directed the management to reinstate the respondent with continuity of service and all other consequential benefits for the purpose of terminal benefits, however, the Labour Court held that the respondent is not entitled for backwages.

4. Heard Sri C.K. Subrahmanya, learned counsel for Sri B.C. Prabhakar, learned counsel for the petitioner - 4 - NC: 2024:KHC:5581 WP No. 42746 of 2018 and Sri H.V. Bhanuprakash, learned counsel for the respondent-workman. .

5. Learned counsel the petitioner would contend that the respondent was appointed as a ITI Technician trainee and it is crystal clear that the respondent has consciously accepted the post of trainee for the fixed period and the respondent was fully aware of the consequences after the fixed period of training is over. Learned counsel for the petitioner would contend that the termination of a trainee on the expiry of the prescribed period will not amount to termination since such termination is excluded under Clause (bb) of Section 2(oo) of the Industrial Disputes Act, 1947 (‘the ID Act’ for short) and hence, the Labour Court could not have granted relief when the trainee challenges his termination. Learned counsel would contend that the Labour Court lacks the jurisdiction to entertain the claim statement as the respondent does not fall under the definition of the ‘workman’ as envisaged under Section 2(s) of the ID Act. - 5 - NC: 2024:KHC:5581 WP No. 42746 of 2018

6. Per contra, learned counsel for the respondent would justify the order of the Labour Court and would contend that the respondent has rendered services as an ITI Technician and was performing the clerical functions and as such, he was covered under Section 2(s) of the ID Act. Learned counsel, while justifying the order of the Labour Court, would contend that the Labour Court has rightly held that the respondent is a workman and that the respondent has worked for 240 days and the termination of his service is contrary to the provisions of Section 25F of the ID Act, the Labour Court has rightly directed reinstatement of the workman and the same does not warrant any interference.

7. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.

8. The question that falls for consideration before this Court is: - 6 - NC: 2024:KHC:5581 WP No. 42746 of 2018 “Whether an “ITI Technician Trainee” would be covered under the definition of ‘workman’ under Section 2(s) of the ID Act and whether the services of the said trainee could not be terminated without compliance of Section 25F of the ID Act and whether the termination of the trainee after the expiry of the prescribed period will not amount to termination and would exclude under Clause (bb) of Section 2(oo) of the ID Act?”

9. The standing orders of the petitioner-company was certified by the Certifying Officer under the Industrial Employment (Standing Orders) Act, 1946 on 15.04.2011 and while certifying the standing orders, the fixed term category employees was deleted. In addition to engaging regular employees in various categories the petitioner’s management is also having the training scheme called “Trainees Deployment and Development Procedure”. The objective of the Trainee Development Procedure is to ensure effective development of trainees of the petitioner- company and development of skill sets out to obtain suitable jobs within and outside the company. The - 7 - NC: 2024:KHC:5581 WP No. 42746 of 2018 following types of trainees has to be engaged as per the procedure adopted by the company: a) ITI Trainees; b) Diploma Trainees; c) Technical Graduation Trainees; d) Graduate Trainees

10. The minimum training period is 12 months and maximum period is 36 months. It is submitted that ITI candidates were deputed to training in machine shop, assembly and warehouse. As per Clause 13 of the Engagement Order, the engagement will automatically come to an end at the termination of contractual period of fixed term and Clause 14 of the order stipulates that in case, the terms and conditions of the trainee engagement are acceptable to the respondent, the respondent has to return the copy of the engagement letter after affixing the signature. The respondent has accepted all the terms and conditions of the engagement letter and gave a clear declaration and acceptance. Thereafter, respondent was - 8 - NC: 2024:KHC:5581 WP No. 42746 of 2018 issued with the ITI Technician Trainee appointment by issuing the Engagement Letter dated 09.09.2010 for the period of 12 months.

11. The respondent was unable learn or effectively perform in the subsequent training modules in spite of extension given to him until September 2013 and since the performance of the trainee between March 2013 and September, 2013 was not satisfactory and he has failed to complete the training module even after the extended period, the management took a decision to put an end to his training in September, 2013 and his training was not extended beyond September, 2013.

12. The dispute that was referred for adjudication was whether the termination of service of the petitioner was justified. Learned counsel appearing for the petitioner would urge that the respondent does not come under the definition of the ‘workman’ under Section 2 (s) of the ID Act as the respondent being a trainee. Learned counsel appearing for the respondent would contend that the - 9 - NC: 2024:KHC:5581 WP No. 42746 of 2018 respondent has worked for more than 240 days and as such, the termination of his service is contrary to the provisions of Section 25F of the ID Act, the order of employment clearly sets out the terms therein, which make it clear that the facility of providing training to the respondent would come to an end at the expiry of 12 months from the date of reporting for duty and it also further mentions that if the respondent is found guilty of the misconduct, he is liable to be dismissed without notice or payment in lieu of notice. The standing order of the company states at clause No.3.3, which reads as under: “3.3 TRAINEE: A trainee is one to whom training is imparted (not under the Apprentices Act 1961). The trainee shall have no claim for employment after completion of the period of training. The Management shall decide the period of training. The period of training shall not exceed maximum Two years in all and the trainee is bound by the rules framed by the Management for that purpose notwithstanding anything contrary contained in these standing orders. A trainee shall not be a workman merely because ‘Trainee’ is defined under - 10 - NC: 2024:KHC:5581 WP No. 42746 of 2018 classification of workmen. It is not obligatory by the Company to employ a trainee on completion of his period of training. The Management at its sole discretion can appoint suitable trainee as a probationer on completion of his training period. A stipend will be paid during the training period.”

13. The said clause refers to the fact that the period of training shall not exceed the maximum period of two years in all and the trainee is bound by the rules framed by the company for that purpose, notwithstanding anything contrary contained in the standing orders. A trainee shall have no claim for employment after completion of period of training. It is clear that the petitioner was not satisfied with the work of the respondent and as such, notice intimating the completion of training period was issued which clearly states that the management has reviewed his performance during the work period and found that his performance is not satisfactory and refused to extend further period of training and the training period stands ceased from

13.09.2013. - 11 - NC: 2024:KHC:5581 WP No. 42746 of 2018

14. Thus, the respondent’s service was terminated and has not extended further. In such a case, question of issuance of notice before terminating the service as claimed by the respondent does not arise and the respondent cannot claim that the termination of his service is contrary to the provisions of Section 25F of the ID Act.

15. Insofar as the arguments advanced by the petitioner to the effect that the respondent does not come under the definition of ‘workman’ as defined under Section 2(s) of the ID Act, it is relevant to observe the definition of Section 2(s) as below: “2. Definitions.—In this Act, unless there is anything repugnant in the subject or context,— (s) “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory 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 - 12 - NC: 2024:KHC:5581 WP No. 42746 of 2018 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 the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (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 ten thousand 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 of a managerial nature.”

16. The determinative factor is the main duties performing by the employee and not some work done incidentally. The nature of the duties performed by the workman is a question of fact and the same sets up by pleading, evidence thereof. - 13 - NC: 2024:KHC:5581 WP No. 42746 of 2018

17. The work undertaken by the respondent is that of an ITI Technician trainee and though the trainee is doing clerical work, the facility of training given to him is only for the purpose of carrying out the assignment during the said period and it does not confer any right on the respondent to claim employment. The trainee gets a stipend, not wages. The person who gets a stipend does not come under the purview of ‘workman’ under Section 2(s) of the ID Act.

18. Insofar as termination of the respondent is concerned, the order of employment itself clearly sets out the terms therein, which makes it clear that the facility of providing training to the respondent could be put to an end at any time without assigning any reason whatsoever and his services could be regularized only on satisfactory completion of the training period. When the terms and conditions of training categorically state that there is no guarantee in absolving the trainee after completion of his - 14 - NC: 2024:KHC:5581 WP No. 42746 of 2018 training as a regular employee, such a trainee cannot seek employment after termination of the training arrangement.

19. Mere completion of the training conferred no right on the respondent to claim appointment. The employment was accepted fully knowing the nature of the work and the consequences flowing it, even otherwise, while accepting the employment, the person concerned knows the nature of his employment and it is not an appointment to a post in the real sense of the term, since the appointment of the petitioner was for a temporary period and petitioner notices engagement as contractual or casual workman as per the terms of the engagement.

20. The termination of service of the respondent after the expiry of the training period agreed upon or such appointment being terminated would fall under Exception to clause (bb) of Section 2(oo) of the ID Act. The termination of an employee on expiry of the prescribed period will not amount to termination since such - 15 - NC: 2024:KHC:5581 WP No. 42746 of 2018 termination is excluded under Clause (bb) of Section 2(oo) of the ID Act, for the foregoing reasons, the point framed for consideration is answered accordingly and this Court pass the following: ORDER i. Writ Petition is allowed. ii. Impugned order passed by the Labour court dated 24.07.2018 in Ref. No.15/2014 is hereby set aside. Sd/- JUDGE MBM