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CASE NO.: Appeal (civil)  1262-63 of 2003

PETITIONER: Dhampur Sugar Mills Ltd.                                         

RESPONDENT: Bhola Singh                                                              

DATE OF JUDGMENT: 08/02/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The Respondent herein was appointed as a trainee/apprentice  in the  year 1986 purported to be in terms of a scheme sponsored by the State  Government for training the cane growers.  According to the Appellant, in  the year 1986, 45 such trainees had been interviewed and 11 of the them  having been found fit were absorbed in its regular service.  The Respondent  herein allegedly did not qualify therefor. He along with remaining trainees  continued to perform their duties as  trainees/apprentices.  The scheme  sponsored by the State Government having come to an end on 16.11.1987  and no fund therefor having been made available, the services of all the  remaining 34 trainees were terminated. The Respondent was paid due  compensation as envisaged under Section 6N of the U.P. Industrial Disputes  Act.   He, however, raised an industrial dispute pursuant whereto and in  furtherance whereof a notification was issued on or about 13.12.1991 by the  Appropriate Government referring the following dispute for adjudication   before the Presiding Officer, Labour Court, U.P. Rampur :

"Whether the separation/deprivation of Mr. Bhole  Singh S/o Shri Sukhdev Singh from the service  w.e.f. 16.11.1987 is unjustified and illegal?  If yes,  then the concerned workman would be entitled to  get what relief/benefit and with what details."

       Before the Labour Court a contention was raised by the Respondent  herein  that his services were terminated by the Appellant by way of unfair  labour practice as he had raised a purported demand for his regularization in  services as also non-payment of minimum wages.  He contended that the  Appellant had regularized the services of 11 Field Supervisors but he was  not.  According to him, he was called for interview along with others by a  letter dated 7.11.1987.  He contended that he had not been absenting with  effect from 1.6.1987 as was alleged in the said letter dated 7.11.1987, but  despite the same, his services were terminated on 2.6.1987.

       The case of the Appellant, on the other hand, is that the services of the  Respondent along with the persons similarly situated had been terminated as  the scheme sponsored by the State Government had come to an end.   

Before the Labour Court the principal contention appears to have been  raised by the Respondent herein was non-compliance of the requirements of  Section 6N of the U.P. Industrial Disputes Act, which was rejected.

The Labour Court in its award held :

"\005On the contrary, the version of the employer is  that Mr. Bhole Singh was engaged as trainee in the

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cane development department.  During training  period the workman was getting stipend.  That in  the year 1986 all the candidates were interviewed  by the employer all 11 trainees were selected and  they were appointed.  Thereafter the training  scheme came to an end.  After the end of the  training scheme, requiring trainees were not  required.  The trainees who could qualify the  interview, their arrangement was dispensed with  by paying one month’s notice pay and 15 days  stipend for every completed year of service  through cheque on dated 16.11.1987 by way of  retrenchment.  But workman refused to receive the  cheque.  Consequently, the cheque of retrenchment  compensation was sent by Registered post to  workman, which was received by him on dated  23.11.1987.  Hence, the services of the workman  were terminated as per rules.  In addition, it was  also stated that workman was never engaged on  seasonal a permanent post and he is a trainee, as  such he does not fall within the ambit of definition  of workman.  That there are four trade unions in  the industry but no union is interested in the  dispute.     

       Both the parties admit the fact that workman  has worked for more than 240 days and it is also  admitted that his service  was terminated w.e.f.  16.11.1987 and at the time of termination of the  service, he was paid one month’s notice pay and  retrenchment compensation @ 15 days stipend for  every completed year of service.  It has not been  objected from the workman side that Employer has  not complied with the provisions of sec. 6N only it  has been stated that the action has been initiated  dramatically and the provision of sec. 6 of the  Industrial Dispute Act, has been complied with.   But it has not been stated that which provision of  sec. 6 has not been complied with.  Since the  workman has been paid one month’s notice pay in  lieu of notice and retrenchment compensation, as  such the provisions of said section were fully  complied with."   

       Before the Labour Court it was stated by the Respondent himself that  no appointment letter was issued in his favour and at the end of the scheme  his services were terminated but his contention was that as  no appointment  letter was issued, his services could not have been terminated,  but the same  was not accepted by the Labour Court.  Another contention which was raised  by the Respondent before the Labour Court was that as 11 other trainees had  been regularized in services, the impugned order of termination was bad in  law as it would come within the purview of definition of ’retrenchment’.    The Labour Court in its Award held that  the termination of the  services of the Respondent was carried out in compliance of the provisions  of Section 6N of the U.P. Industrial Disputes Act, observing :

       "Hence in my opinion, the said provision  has been fully complied with, which has been held  by the Honourable Court in the above case.  In  brief disputed workman was a Trainee and  remained in the employment for more than 240  days.  He could not qualify the interview.  The  scheme, under which he was imparting training,  was closed.  Hence his work was not required.  

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The disputed worker comes within the definition  of workman.  Since there was no requirement of  work for him, the Employer retrenchment has  complying in the provisions of Sec. 6N of the said  Act.  It is the simple matter of retrenchment in  which the employer has fully complied with the  related provisions.  Hence in my opinion, the  service of the worker is terminated as per rules and  legally."  

       A learned Single Judge of the High Court, however, in the Writ  Petition filed by the Respondent herein questioning the said Award, by  reason of the impugned judgment dated 27.9.2001 relying on or on the basis  of a decision of the Division Bench of the said Court in Smt. Shipra Ghoshal  and Others vs. Secretary, Department of Cane, Civil Secretariat, Lucknow  and Others [1990 (60) FLR 870] came to the conclusion that the Appellant  adopted unfair labour practice in view of the fact that the Respondent  demanded wages of the Supervisory grade and furthermore there could not  be any justification for not employing him as others had been absorbed.  

       The learned counsel appearing on behalf of  the Appellant would  submit that the High Court committed a serious error in passing the  impugned judgment insofar as it failed to take into consideration the finding  of fact arrived at by the Labour Court that the interview in question had been  held in the year 1986 when 45 trainees were interviewed and out of them  only eleven were taken in service and services of no other trainee had been  regularized after the scheme came to an end.

       Drawing our attention to the letter dated  7.11.1987, the learned  counsel would contend that from a perusal thereof,  it would appear that the  Respondent was asked to present himself for duty as he had been absenting  himself w.e.f. 1.6.1987 and not for the purpose of  appearing before any  selection committee.  Our attention was also drawn to the letter of  termination dated 16.11.1987 wherein the absence of the Respondent was  reiterated and the order of termination was issued on the ground that the  training scheme had been withdrawn by the State Government.     The learned  counsel would urge that a trainee/apprentice has no legal right to be  absorbed in regular service of the employer.   

       The learned counsel appearing on behalf of  the Respondent, on the  other hand, would support the judgment of the High Court contending that  from a perusal of the Award passed by the Labour Court itself it would  appear that a contention as regard unfair labour practice on the part of the  Appellant herein was raised on the premise that the services of 11 other  trainees/apprentices had been regularized whereas the services of the  Respondent had not been and, thus, he had been discriminated against.

       The Respondent herein admittedly was appointed as a trainee in the  Cane Department of the Appellant.  From a perusal of the  Award of the  Labour Court, as has been noticed hereinbefore, it is evident that one of the  contentions raised before it was that although his services were terminated at  the end of the scheme but as no appointment letter was issued, such  termination was illegal.  A decision of the Allahabad High Court  Shipra  Ghoshal (supra) also appears to have been cited wherein it was held that the  factum of such termination having been made as the scheme came to end  should be mentioned in the order of termination itself.  From a bare perusal  of the said letter dated 16.11.1987, it would appear that the fact as regard  withdrawal of the training scheme indeed had been mentioned therein; the  reason for such termination being the withdrawal of the scheme by the State  Government.  So far as the purported regularization of services of other 11  other trainees by the Appellant is concerned, it is manifest that a plea was  raised to the effect by the Appellant herein that it was only in the year 1986,  that they, out of 45 trainees, were appointed after an interview was held for  that purpose and having been found fit therefor.    In the letter dated

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7.11.1987 issued to the Respondent by the Appellant, it is stated :

"You have been absent since 1.6.87.  You are  notified that on receiving this intimation you must  present yourself immediately or by 16th November,  1987 failing which disciplinary steps will be taken  against you."

       The Respondent herein,  therefore, was not asked to appear before the  Interview Board on 16.11.1987 as alleged by him.  The positive case of the  Respondent before the Labour Court was that on receipt of the said letter, he  appeared before the competent authority on 16.11.1987, when he contended  that he had not been absenting from duty but had been prevented from  joining his duties.  From the Award of the Labour Court it also does not  appear that any statement was made before it by the Respondent to the effect  that he had appeared before an Interview Board.  Even such a contention  does not appear to have been raised at the time of raising the industrial  dispute as no reference as regard non-regularization of his services by the  Appellant was made.     

       If the Respondent was appointed in terms of the Apprentices Act,  1961, he will not be a workman, as has been held by this Court in Mukesh  K. Tripathi vs. Senior Divisional Manager, LIC and Others [(2004) 8 SCC  387] and U.P. State Electricity Board vs. Shiv Mohan Singh and Another  [(2004) 8 SCC 402].

       In terms of the provisions of the Apprentices Act, 1961, a trainee or  an apprentice has no right to be absorbed in services.  It is trite that if  the  provisions of the Apprentices Act applies, the provisions of the Labour   Laws would have no application.

       The Respondent advisedly raised the question of applicability of the   U.P. Industrial Disputes Act having regard to the provisions of the  Apprentices Act but even assuming that he was a workman within the  meaning of the provisions thereof, the Labour Court had unhesitatingly came  to the conclusion that the statutory requirements for effecting a valid  retrenchment in terms thereof had been complied with.  A finding of fact has  also been arrived at by the Labour Court that the scheme  sponsored by the  State Government had come to an end.   The High Court, thus, in our opinion committed a manifest error in  coming to the conclusion that the Appellant is guilty of commission of  unfair labour practice only on the premise that the services of 11 similarly  situated had been regularized without taking into consideration the materials  placed on records as also the finding of fact arrived at by the Labour Court  that the services of such persons had been regularized in the year 1986.  The  High Court further failed to take notice of the fact that according to the  Appellant, the Respondent herein did not qualify for his absorption at that  time and, thus, his services continued as apprentice with several other  trainees and it was only when the scheme came to an end, the services of all  the trainees had been terminated.

       When a workman is appointed in terms of a scheme on daily wages,  he does not derive any legal right to be regularized in his service.  It is now  well known that completion of 240 days of continuous service in a year may  not by itself be a ground for directing regularization particularly in a case  when the workman had not been appointed in accordance with the extant  rules.                   In Executive Engineer, ZP Engg. Divn. and Another vs. Digambara  Rao and Others [(2004 ) 8 SCC 262],  this Court held : : "It may not be out of place to mention that  completion of  240 days of continuous service in a  year may not by itself be a ground for directing an  order of regularization.  It is also not the case of the

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Respondents that they were appointed in accordance  with the extant rules.  No direction for regularization  of their services, therefore, could be issued. [See A.  Umarani vs. Registrar, Cooperative Societies (2004)  7 SCC 112]  and Pankaj Gupta vs. State of Jammu  & Kashmir [(2004) 8 SCC 353]  Submission of Mr.  Maruthi Rao to the effect that keeping in view the  fact that the Respondents are diploma-holders and  they have crossed the age of 40 by now, this Court  should not interfere with the impugned judgment is  stated to be rejected.

       [See also Mahendra L. Jain and Others vs. Indore Development  Authority and Others \026 JT 2004 (10) SC 1]

The decision of the Allahabad High Court in Shipra Ghoshal (supra)  stands entirely on a different footing.  In that case, a finding of fact as regard  factual discrimination against similarly situated persons was arrived at.  It  was further noticed that the petitioners therein were not appointed for a  particular scheme and they had been transferred from one place to another  and on that ground it was opined that those who were not appointed in a  particular scheme could not be axed out on the ground that their  appointments were made in a particular scheme, particularly when there was  nothing in their appointment letters to show the same..  The said decision of  the Allahabad High Court does not advance the case of the Respondent.     

       It is now well-settled that even in a case where the services of a  workman have been terminated without complying with the provisions of   Section 6N of the Industrial Disputes Act, a direction for reinstatement shall  not ordinarily be issued, in the event, the termination of services becomes  co-terminus with the scheme.

       For the reasons aforementioned, the impugned judgment cannot be  sustained, which is set aside accordingly.  The appeal is allowed.  However,  in the facts and circumstances of this case, there shall be no order as to costs.