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La Gazette de L' État de Poudouchéry

The Gazette of Puducherry

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23 {

No.

Poudouchéry

Mardi

Mai

2017 (2 Jyaistha 1939)

No.

Puducherry

Tuesday

23rd

May

2017



SOMMAIRES

CONTENTS



Page

.. 470

Sentence arbitral du travail

.. 470

Award of the Labour Court .. 470

de tribunal.



.. 490

Notifications du Gouvernement

.. 490

Government Notifications .. 490



.. 500

Avis d’Adjudications

.. 500

Tender notices

.. 500



.. 501

Etablissements dangereux

.. 501

Dangerous Establishments

.. 501



.. 505

Annonces

.. 505

Announcements

.. 505

[ 469 ]

Registered with the Registrar

of Newspapers for India under

No. 10410

Registered No. SSP/PY/44/2015-17

WPP No. TN/PMG(CCR)/WPP-88/2015-17

Dated : 23-5-2017

Price : ` 30-00

470

LA GAZETTE DE L’ETAT

[23 May 2017

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 61/Lab./AIL/T/2017,

Puducherry, dated 13th July 2017)

NOTIFICATION

Whereas, the Award in I.D.(L)No.40/2013, dated

27-3-2017 of the Industrial Tribunal-cum-Labour Court,

Puducherry in respect of the industrial dispute between

Thiru D. Baskar, S/o. Dhandapani, Puducherry against the

management of M/s. MRF Limited, Eripakkam Village,

Puducherry over to reinstate the petitioner with back wages,

continuity of service and all other attendant benefits has been

received.

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947) read with

the notification issued in Labour Department’s G.O. Ms.

No. 20/9/Lab./L, dated 23-5-1991, it is hereby directed

by Secretary to Government (Labour), that the said

Award shall be published in the Official Gazette,

Puducherry.

(By order)

E. VALLAVAN,

Commissioner of Labour-cum-

Additional Secretary to Government (Labour).

————

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present : Thiru G. THANENDRAN, B.COM, M.L.,

Presiding Officer,

Monday, the 27th day of March 2017

I.D. (L) No. 40/2013

D. Baskar,

S/o Dhandapani,

Bharathidasan Street,

Puducherry.

. . Petitioner

Versus

The Management of MRF Limited,

Eripakkam Village,

Nettapakkam Commune,

Puducherry.

. . Respondent.

This industrial dispute coming on 21-2-2017 before

me for final hearing in the presence of Thiru P. Chandrasekar,

Counsel for the petitioner and Thiruvalargal K. Babu

and C. Arivajagne, Advocates for the respondent, upon

hearing both sides, upon perusing the case records,

after having stood over for consideration till this day,

this Court passed the following:

AWARD

1. This is a petition filed by the petitioner under

section 2-A(2) of the Industrial Disputes Act praying

to direct the Respondent/Management to reinstate the

petitioner with backwages, continuity of service and all

other attendant benefits.

2. The averments in the claim statement of the

petitioner, in brief, are as follows:

(i) The petitioner is constrained to raise this

dispute against the illegal termination of his service

by the respondent management with effect from

17-10-2001. He was a workman, employed by the

respondent management and the said management is

a company registered under the Companies Act and

engaged in the business of manufacture and sale of

car and truck and redial tyres and the Pondicherry

factory commenced the production activity in the

year 1998, apart from its factory in Pondicherry, the

respondent management also having its factories at

Thiruvottriyur, Arakonam, Medak, Goa and Kottayam

and the petitioner joined the service of the respondent

management vide an apprenticeship dated 1-5-2000

and in the above order, it was stated that his

apprenticeship period was for six months. Though

he was appointed as an “Apprentice” no training was

imparted to him and he was directed to work, which

involved in production activities of the respondent

factory and the respondent management again issued

order dated 1-11-2000, appointing the petitioner as

“ Apprentice” and his so-called apprenticeship period

was for six months and as per order of apprenticeship,

dated 1-5-2001, the petitioner so called apprenticeship

period came to an end with effect from 17-10-2001,

and even after the expiry of the said period, the

respondent management continued to engage the

petitioner in the production activities, he had been

rendering services continuously and to the utmost

satisfaction of his superior officer.

(ii) The workers engaged in regular manufacturing

activity were designated as Apprentices and

probationer and many of them without any designation

but said to be 'under observation' and the respondent

management adopted such a practice in a bid to evade

the application of the Labour Welfare Legislations

and was in fact not complying with the Labour Laws

and since the workers were denied various benefits

under labour welfare legislations, they decided to

471

23 May 2017]

LA GAZETTE DE L’ETAT

form a trade union to raise voice for their grievances.

In the above circumstances, majority workers of the

respondent management formed a trade union namely

“MRF Thozhilalar Sangam” and the petitioner was

an active member of the said union and the

respondent management was duly informed about the

information of the aforesaid trade union vide its

communication dated 29-9-2001 and immediately

after knowing about the information of the trade

union, the respondent got furious and commenced

its victimization program against the workers

belonging to the “MRF Thozhilalar Sangam” and the

management terminated all the 218 members of the

trade union without following any procedures laid

down under the Industrial Disputes Act and the

petitioner was issued an order of termination dated

17-10-2001, alleging that his apprenticeship period

come to automatic end by efflux of time and his

apprenticeship stand declared as ceased with effect

from close of work on 17-10-2001.

(iii) The “MRF Thozhilalar Sangam’’ filed W.P.

No.20591 of 2001 before the Hon’ble High Court,

Madras and in the meanwhile, the respondent

management started engaging outsiders to do the

work hitherto done by the petitioner and other

terminated workers and on behalf of the petitioner

and other terminated workers, his union filed another

writ petition viz., W.P. No.19 of 2002 before the

Hon'ble High Court, Madras seeking direction to the

respondent management not to engage outsiders

without providing employment to the members of

the petitioner's union and in the meanwhile, with an

ulterior motive, the respondent started its own puppet

union under the name “MRF Employees Union”

which closely resembled the petitioner union

namely “MRF Thozhilalar Sangam" and that while

this being so, the Hon'ble High Court was pleased to

pass common order in W.P. No. 20561 of 2001 and 19

of 2002, in which, it was observed that situation

created by the management was most unconscionable,

monstrous and deplorable and the Hon’ble High

Court was further pleased to hold that the fact of

there not being single permanent worker on rolls of

the factory betrays the glaring unfair labour practices

of the respondent management and the Hon'ble High

Court was further pleased to hold that it is the

formation of the union that had triggered the spree

of terminations. Both the writ petitions filed by his

union viz., W.P. No. 20591 of 2001 allowed by the

Hon'ble High Court and directed the respondent

management to reinstated the workmen with full

backwages. As against the said order, the respondent

management, preferred W.A. Nos. 2043 and 2044 of

2002 and during the pendency of the aforesaid appeal,

the management had reinstated 49 workers including

the petitioner in service.

(iv) It is further stated that in W.A. No. 2043 of

2002 the management had taken a stand that on

reconsideration, out of 49 workers who were terminated

from service, the management agreed for taking 10

persons who can be reinstated as probationer for one

year but the respondent had not preferred to reinstate

the petitioner and 38 workmen in service and

on 4-1-2008, the Hon'ble High Court was pleased

to pass orders in W.A. No. 2043 and 2044 of 2002

and W.A.M.P. No. 3454 of 2002 and W.P. Nos. 24183

of 2005 and W.P.M.P. No. 26395 of 2005 and in that

order, the Division Bench of the Hon'ble High Court

was pleased to state that the management has been

allowed to reinstate the aforesaid ten workmen as

probationers for one year and they may confirm them

after one year, if there are vacancies and their

performance is satisfactory and so far as rest of 39

workers, including petitioner, they raise an industrial

disputes in respect of termination of their services,

which may be adjudicated before the Labour Court/

Industrial Tribunal Court and hence, the petitioner

is raising this industrial dispute against the termination

of his services by the respondent management with

effect from 17-10-2001.

(v) The termination of his services by the respondent

management is unsustainable in law. The termination

of petitioner service is unfair, unreasonable and

unfair labour practice on the part of respondent

management. The petitioner submits that from the

date of his appointment in service, he had been

performing his work, which is that of a permanent

and perennial nature. Though the petitioner was

designated as an apprentice, he was not given any

training at all and was doing the same work as

performed by the permanent workman. Hence the

petitioner is not an Apprentice as defined in section

2(aa) of the apprentices Act. The petitioner is

a workman within the meaning of section 2(s) of the

Industrial Dispute Act 1947 and the termination of

the petitioner without following procedures laid

down under the Industrial Dispute Act, 1947 is

unsustainable in law. The petitioner and other

workers were victimized for their formation of the

genuine trade union namely “MRF Thozhilalar

Sangam”. Though the petitioner and other workers

were engaged in the manufacturing process in the

factory of the respondent management by designating

them as Apprentice and probationers, they were very

472

LA GAZETTE DE L’ETAT

[23 May 2017

sincere and hard workers and they have contributed

more for the respondent management for higher

production. The act on the part of the respondent

management in terminating the petitioner’s services

is vindictive and the colourable exercise of powers

on the part of the respondent management. The

attitude for the respondent management in terminating

the petitioner's service is unjust and unfair labour

practice adopted by the management.

(vi) The termination of his service by the

respondent / management is “retrenchment” within

the meaning of section 2 (aa) of the Industrial

Disputes Act. The termination of the petitioner's

services by the respondent management without

following the provisions laid down under section 25 N

of the Industrial Dispute Act and in any event section

25F of the Industrial Dispute Act, 1947 is unfair and

unsustainable in law. Hence the impugned order of

termination is void in law. There was no valid

contract of apprenticeship between the petitioner and

respondent management. The petitioner had been

working under the respondent management continuously

without any break from the date of his appointment

in service and had worked continuously for about

1½ year. By virtue of his permanent and perennial

nature of work the petitioner was entitled to be

appointed as permanent workman. The petitioner is the

sole breadwinner of his family and due to his

termination from service, the petitioner and his

family have been facing undue mental and economic

hardship.

(vii) It is further stated that the petitioner was

terminated from service vide order of the respondent

dated 17-10-2001, he did not raise any industrial

dispute immediately due to the reasons that on behalf

of him and other terminated workers, his union had

taken up the issue by way of filing writ petitions

before the Hon'ble High Court, Madras and against

the order passed in the writ petition, the respondent

management preferred writ appeal and after the

disposal of the above writ appeal, the petitioner union

preferred Special Leave petition before the Hon'ble

Supreme Court and the same was dismissed on

22-5-2009 and that thereafter petitioner union

dispute and subsequently on legal advice, the

petitioner raised dispute under section 2-A of the

Industrial Dispute Act on 30-4-2012 against the

termination of his services and the conciliation

proceedings ended in failure on 24-6-2013 hence

some delay has been caused in raising the dispute

and such delay are neither willful nor wanton.

He has not been gainfully employed anywhere and

prayed this court to direct the respondent/

management to reinstate the petitioner with

backwages, continuity of service and all other

attendant benefits and award costs.

3. The brief averments in the counter filed by the

respondent are as follows :

(i) The claim of the petitioner are baseless,

vexatious, devoid of merits and is not maintainable

either in law or on facts and hence liable to be

dismissed in limini and the petitioner has no locus

standi to raise any industrial dispute as against this

respondent, since he was only a trainee and not a

workman of the respondent management and the

extraordinary delay in approaching this Court by the

petitioner cannot be condoned as the reason given

by him is not a satisfying or substantial reason for

not approaching this Hon'ble Court or the

Conciliation Authority at the right time and that even

the previous petition filed by the "MRF Thozhilalar

Sangam" before the Conciliation Authority was filed

at a highly belated stage and knowing well that they

cannot succeed in the said dispute, they had

withdrawn the same and the contention rose by the

petitioner before the Hon'ble court are devoid of

merit and concocted with reference to the facts

alleged and that the factory at Puducherry commenced

trial production in the year 1998 and manufactures

various radial tyres which is highly technical and is

a complicated one and uses logistic control and the

workers are given in-depth training on various

machines, so that each workman is able to operate

all machines and is not merely specializing on a

particular machine. Besides that the technology

involved is totally indigenous and it takes for the

workmen time in learn the various skills on each

machine and the workers have been inducted in a

pleased manner over the past years and that the

practice followed in the factory in Puducherry is of

recruiting persons from nearby villages of Puducherry

who mostly do not posses qualification beyond 12th

standard, this has been done, so that people of the

local villages would be able to benefit from the new

factory that has come up in their vicinity and there

are no Trade Apprentices for Tyre Industry and these

individuals were taken as apprentices to examine

their suitability to learn and assimilate the highly

skilled process of manufacture of radial tyres and

as a policy in all the factories only raw hands are

recruited and the present factory started with 12

numbers of machines and now the number of

473

23 May 2017]

LA GAZETTE DE L’ETAT

machines installed slowly progressed and the

numbers of apprentices taken were also gradually

increased keeping pace with the number of machines

that were newly installed and that these types of

machine are the most advanced version which was

not used in any other factory of the respondent

management and therefore that was an added reason

as to why the training had to be imparted carefully

and meticulously over a period of time in a phased

manner.

(ii) It is further stated that in order to impart

training to these persons, the respondent company

had engaged about 79 supervisors, drawn from its

other factories as they had experience, under whose

immediate supervision the apprentices learn how to

work on various machines installed and obviously

conscious of the need to learn how to operate all

these highly sophisticated technically advanced

machines that involved electronic operations as well,

the apprentices had no objection whatsoever to learn

the trade and that the petitioner is not a workman/

employee of the respondent management and he was

an Apprentice, as stated above who was given training

under the Company's scheme on and from 1-5-2000

and was paid stipend during the period of his training

as per the terms and conditions of apprenticeship

order issued to him and his apprenticeship was

discontinued in accordance with the said contract

vide order, dated 17-10-2001 and that from the date

of his joining he had been rendering his service

continuously and to the utmost satisfaction of his

superior officer is vehemently denied. The MRF

Thozhilalar Sangam (with whom the petitioner

alleges to be a member) in order to gain support,

instigated the workmen and Apprentices to go slow

and also had created a serious industrial unrest in

the factory and from 3-10-2001 the workmen and

Apprentices including the petitioner had started to

involve in go slow activities and they had also

boycotted the canteen facilities and refused to have

lunch and indulged in anti-management activities.

Therefore, a notice was issued on 10-10-2001 that

the preparation of food would be stopped on and from

13-10-2001 if such an attitude continued and as they

refused to cooperate, the management stopped

preparing food and the production of tyres at the rate

of 1877 as on 30-9-2001 had become reduced day

by day, ultimately coming down to 112 tyres as on

20-10-2001. The apprenticeship of 43 Apprentices

including the petitioner were discontinued in

accordance with the contract, as there was no work

and therefore consequently no training could be

imparted to them as production had totally stopped

from 22-10-2001 and besides, as there was no work,

the casuals were also dispensed with and in the

meantime, there had been various acts of indiscipline

and unlawful activities indulged by the workmen and

they also indulged in atrocities creating law and

order situation and caused loss and damage to the

properties of the company and on 9-10-2001 they

prevented the movement of a loaded lorry and

on 24-10-2001 they came to the factory gate

shouting slogans and threatened the management

staff and blocked and management staff from leaving

after the first shift and on the intervention by the

police they were let out and on 25-10-2001 they

entered in to the canteen and thrown the plates and

upset the Bain marie system and on 27-10-2001 they

entered the Godown where the finished products

were stored and pulled down the shutters in the

Godown Supervision and Production Supervisor and

on 11-10-2001 they refused to leave the premises

and only after the intervention of Police, the

workmen left the premises.

(iii) The contentions of the petitioner that 218

members of the MRF Thozhilalar Sangam without

following any procedures laid down under the

Industrial Disputes Act and that the respondent

management is having the practice of victimizing its

own workmen if they indulge in trade union activities

and that the respondent is having the practice of

evading application of labour welfare legislations

are total falsehood and are vehemently denied by the

respondent. As the trial production was a time

consuming process, after commissioning of the

factory, only persons who have been trained and

found suitable can be absorbed into permanent post

and therefore the formation of union had nothing to

do with terminating the workers and as such it is

stoutly denied that the workers were victimized for

the formation of trade union and as admitted by the

petitioner, the respondent has factories in other

places where there are unions and there can be no

accusation of the management trying to curtail the

legitimate union activities.

(iv) It is further stated that the respondent started

engaging outsider to do the work hitherto done by

the petitioner and other terminated workers and that

the respondent started its own puppet union under

the name “MRF Employees Union” with ulterior

motive and that the respondent has reinstated 49

workers including the petitioner during the pendency

of Writ Appeal before the Hon'ble High Court are

474

LA GAZETTE DE L’ETAT

[23 May 2017

emphatically denied by this respondent and submits

that there is no iota of truth in the same and only 10

persons were taken back as probationers vide

Probation orders dated 22-2-2008 and were subsequently

confirmed in service as per the judgment passed by

the Hon’ble High Court of judicature at Madras in

Writ Appeal Nos. 2043 and 2044 of 2002 modifying

the orders in W.P. No. 20591 of 2001 and W.P. No.19

of 2002 and as per the said judgment in the said writ

appeals the Hon’ble High Court has observed that

‘on behalf of the rest of the 39 workmen the union

may raise an industrial dispute in regard to their

dismissal/termination’ but had not specifically stated

that the individuals may prefer industrial dispute as

they were not workmen but were only Apprentices

and though the petitioner has admitted that the union

has raised an industrial dispute with reference to the

said 39 persons, later it had withdrawn the said

dispute for the reasons best known to the petitioner

and further the petitioner has not given any clear

reason as to why the union has withdrawn the

industrial dispute raised earlier on behalf of 39

persons and why the petitioner is now again belatedly

preferring this dispute individually as against the

order of the Hon'ble High Court and further in the

same judgment the Hon'ble High Court has directed

the MRF Thozhilalar Sangam to approach the

appropriate forum for appropriate relief in respect

of genuineness of the union and as on date the union

has not done anything with reference to the same.

(v) It is further stated that the respondent

management had not involved/indulged in any sort

of unfair labour practice, much less and alleged by

the petitioner at any point of time and further as the

petitioner was only an Apprentice, hence section 25

F and 25 N of the Industrial Dispute Act will not

attract and further, the appointment of the petitioner

as an Apprentice cannot be termed as unfair labour

practice under Schedule V of the Industrial Dispute

Act and the discontinuance of the apprenticeship of

the petitioner is as per the terms of the apprentice

order issued to him and the terms and conditions of

which was admitted and accepted by him and hence

the said discontinuance is fair, just and proper and

that this is a case of discontinuance of apprenticeship

governed by the terms and conditions of his

apprenticeship order and hence the petitioner's claim

of alleged non-employment does not arise and are

devoid of merits and prayed for dismissal of the

petition.

4. In the course of enquiry PW. l was examined and

Ex. P1 to Ex. P 11 were marked and on the side of the

respondent RW. 1 was examined and Ex.Rl was marked.

5. The point for consideration is:

Whether the petitioner is entitled for the order

of reinstatement with backwages, continuity of

service and all other attendant benefits or not ?

6. Both side arguments were heard.

Written

arguments were filed by both sides. In support of his

case, the learned counsel for the petitioner has relied

upon the Judgment reported in 2006 (1) L.L.N. Ps.

No. 554, Telecom District Manager, Valsad

Vs.

Namlabai Ranchhodbhai Patel, Wherein, the Hon'ble

High Court, Gujarat has held as follows:

“4. Industrial Disputes Act, 1947, S.25-F, Non-

compliance with effect - held, where pre-requisite

for valid retrenchment as laid down in section 25-F

has not been complied with retrenchment bringing

about termination of service is ab-initio void-

Workman is entitled to reinstatement”

7. On the other hand, the learned counsel for the

respondent relied upon the following citations in

support of his case:-

(i) National Small Industries Corporationn Vs.

Lakshminarayanan (Supreme Court dated 10-11-2006)

(ii) Vijayalakshmi Insecticides and Pesticides

Ltd., Hyderabad Vs. Chairman, Industrial Tribunal-

cum-Labour Court, Visakapatnam and others (2004

L1R 387-A.P. High Court).

(iii) Ram Babu Gupta Vs. Presiding Officer,

Labour Court, Allahabad and another (2005 LLR 241-

Alahabad High Court).

(iv) Management of Otis Elevator Co.

Vs.

Presiding Officer, Industrial (Delhi High Court dated

22-4-2003).

(v) Kamal Kumar Vs. J.P.S Malik Presiding

Officer, Labour Officer (Delhi High Court dated 18-5-1998).

(vi) Kartik Ramachandran. R. Vs. P.O. Labour

Court and Anr. (Delhi High Court dated 19-10-2006).

(vii) Raj Kumar Rastogi Vs. P.O. Labour Court-X

and Anr (Delhi High Court, dated 18-5-2015).

(viii) Gujarat Electricity Board

Vs. Balkhan

D. Joya (Gujarat High Court, dated 29-2-2000).

8. This application is filed against the termination

of the petitioner from service by the respondent

management seeking an award directing the respondent

to reinstate the petitioner into service and all other

attendant benefits.

9. It is the evidence of PW. l that the petitioner joined

in the service of the respondent management as an

Apprentice as per the order issued by the respondent

475

23 May 2017]

LA GAZETTE DE L’ETAT

on 1-5-2000 and after the apprentice period of six

months the petitioner was appointed for the production

activities of the respondent factory and again apprentice

order was issued on 1-11-2000 and apprentice period

came to an end with effect from 30-4-2001 and even

after the expiry of the said period the respondent

management engaged the petitioner in the production

activities and the petitioner was designated as an

“Apprentice” and he was engaged directly for the

manufacturing activities of the respondent management

and many of the apprentice and probationers were not

given any designation and the respondent management

adopted such a practice to evade the application of the

Labour Welfare Legislations and avoid the Labour Laws

and the union workers were denied various benefits

under Labour Welfare Legislations and that therefore

the trade union namely MRF Thozhilalar Sangam was

formed by the workers and the respondent management

was also informed about the formation of the trade

union under their communication dated 29-9-2001 and

therefore the respondent management has got furious

and commenced its victimization program against the

workers belonging to the union and the management

terminated all the 218 members of the trade union

without following any procedures laid down under the

Industrial Disputes Act and this petitioner was issued

an order of termination on 17-10.2001 alleging -that

the apprenticeship period comes to an end and on behalf

of the terminated workers MRF Thozhilalar Sangam has

filed a writ petition in W.P. No. 20591 of 2001 and on

behalf of the petitioner and other terminated workers

the union has filed a writ petition in W.P. No. 19 of

2002 seeking the direction against the respondent not

to engage out siders without first providing employment

to the members of the petitioner's union and that

respondent started its own puppet union in the name of

MRF Employees Union and the Hon'ble High Court was

pleased to pass common order in W.P. No. 20591 of

2001 and 19 of 2002 allowing the writ petition and

directed the respondent management to reinstate the

workmen with full backwages and against the said order

the respondent management preferred Writ Appeal

No.2043 and 2044 of 2002 and during the pendency of

the Appeal, the Court has directed the management to

reinstate the 49 workers including the petitioner in

service and in the Appeal the management had taken

stand that on consideration out of 49 workers who were

terminated from service, the management has agreed

for taking 10 persons and reinstated as probationers

for one year but the respondent had not preferred to

reinstate the petitioner and 38 workmen in service and

on 4-1-2008, the Hon'ble High Court was pleased to

pass order to reinstate the above said 10 workmen as

probationers for one year and they may confirm them

after one year, if there are vacancies and their

performance is satisfactory and therefore the rest of

39 workers including the petitioner raised an industrial

dispute in respect of termination of the service and the

petitioner is raising the industrial dispute against the

termination of his service by the respondent

management with effect from 17-10-2001.

10. In support of his claim statement and evidence,

the petitioner has exhibited the copy of the

Apprenticeship order issued by the respondent on

1-5-2000 as Ex. P1, the copy of another Apprenticeship order

issued by the respondent on 1-11-2000 as Ex. P2, the copy

of another Apprenticeship order issued by the respondent

on 1-5-2001 as Ex.P3, the copy of the advance notice

dated 29-9-2001 given by the petitioner union to the

respondent as Ex. P4, the copy of the memo. dated 9-10-2001

issued by the respondent as Ex. P5, the copy of the

order passed in W.P. No. 20270, 20591 and 19/2002

on 10-6-2002 as Ex. P6, the copy of the order

passed in W.P. No. 2043/02 and 2044/02 on 4-1-2008

as Ex. P7, the copy of the 2-A petition filed by the

petitioner on 30-4-2012 as Ex.P8, the copy of the

counter statement of the respondent dated 16-7-2012 as

Ex. P9, the copy of the rejoinder filed by the petitioner, dated

22-8-2012 as Ex. P10, the copy of the conciliation

failure report dated 24-6-2013 as Ex. P11. The above

documents and oral evidence of PW 1 would go to show

that

petitioner

has

joined

the

respondent

establishment on 1-5-2000 as an apprentice and he has

served till 17-10-2001 and thereafter, he was terminated

from service in the year on 17-10-2001 against which

the union has filed the writ petition before the Hon'ble

High Court in W.P. No. 20591/2001 and another writ

petition was filed in W.P. No. 19/2002 and the Hon'ble

High Court was pleased to direct the respondent to

reinstate 218 workmen against which the respondent

management filed writ Appeal in W.A. No. 2043 and 2044/

2002 in which the Hon'ble High Court was pleased to

direct the respondent to reinstate the 49 workmen but

the respondent management has only reinstated 10

workmen and including the petitioner 39 workmen have

been denied employment and on 4-1-2008 an Appeal was

ordered by the Hon'ble High Court and directed the

respondent management to confirm the appointment of

the 10 workmen and directed the petitioner and other

38 employees to raise industrial dispute before the

Conciliation Officer and at the Conciliation all the

other labourers have been settled by the respondent

management and this petitioner had been denied

employment and that therefore he has filed this

application for reinstatement.

476

LA GAZETTE DE L’ETAT

[23 May 2017

11. It is the evidence of the respondent RW 1 that

the petitioner has no locus standi to raise industrial

dispute as against the respondent since he was only

a Trainee/Apprentice and not a workman of the

respondent management and that the petitioner has

raised this industrial dispute with the extraordinary

delay before this court and before the Conciliation

authority and the respondent factory commenced

production in the year 1998 and manufactures various

radial tyres which is highly technical and is a

complicated one and uses logistic control and that the

workmen are given in-depth training on various

machines so that each workmen is able to operate all

machines and is not merely specializing on a particular

machine and to give benefit to the people of the local

villages the persons who are having qualification of

12th standard were appointed as Apprentices and

examine their suitability to learn and assimilate the

highly skilled process of manufacture of radial tyres

and the present factory started with 12 number of

machines and number of apprentices taken were also

gradually increased keeping pace with the number of

machines that were newly installed and the training had

to be imparted carefully and meticulously over a period

of time in a phased manner and that in order to impart

training to these persons the respondent management

had engaged about 79 supervisors appointed from its

other factories as they had experience, under whose

immediate supervision the apprentices learn how to

work on various machines installed and the apprentices

who were appointed on 1-5-2000 and the petitioner who

are appointed as apprentice was paid stipend during the

period of his training as per the terms and conditions

of Apprenticeship order issued to him and his

apprenticeship was discontinued in accordance with the

said contract vide order, dated 17-10-2001 and that

therefore the petitioner was not a workmen employed

by the respondent management and no training was

imparted to him.

12. It is the further evidence of the respondent that

the workmen by way of go-slow working, boycotting

canteen facilities, preventing movement of the

management staffs, raising slogans against the

management staffs and threatened them from 3-1-2001

and therefore the production of the factory was

seriously diminished and this industrial unrest scenario,

the probationary period of about 6 probationers were

brought to an end as the same had come to an end by

efflux of time and the apprenticeship of 43 apprentices

including the

petitioner were

discontinued in

accordance with the contract, as there was no work and

therefore consequently no training could be imparted

to them as production had totally stopped from 22-10-2001

and that they have not having any practice of

victimization of workmen since indulged in trade union

activities and that only the persons who have been

trained and found suitable can be absorbed into

permanent post and that therefore formation of union

had nothing to do with the termination, of the workers

and the respondent management never tried to curtail

the legitimate union activities.

13. It is the further evidence of the respondent RW.1

that they have never reinstated 49 workers at any time

and only 10 persons were taken back as probationers

vide Probation Order dated 22-2-2008 and subsequently

they were confirmed as per the Judgment passed by the

Hon'ble High Court of Judicature at Madras in Writ

Appeal Nos.2043 and 2044 of 2002 modifying the

orders in W.P. No .20591 of 2001 and W.P. No. 19 of

2002 and in the Writ Appeals the Hon'ble High Court

was observed that the rest of the workmen of the union

may raise the industrial dispute in regard to their

dismissal/ termination and that petitioner was not clear

why the union has withdrawn the industrial dispute

raised on behalf of the 39 persons and that the

respondent management has not indulged in any sort of

unfair labour practice as alleged by the petitioner and

since the petitioner is not a workmen and only he is an

apprentice, Section 25 F and 25 N of the Industrial

Dispute Act would not attract and in support of his case,

the respondent has exhibited Ex.R1 Apprenticeship

order issued to the petitioner by the respondent

management on 1-5-2000.

14. From the evidence of the petitioner and the

respondent, it is found that the following factors are

admitted by both the parties that the petitioner has

joined as an Apprentice in the respondent factory on

1-5-2000 and he had served till 9-10-2001 as an

apprentice and against which the petitioner union has

filed writ petition before the Hon'ble High Court in W.P.

No. 20591 of 2001 and 19 of 2002 in which the

Hon'ble High Court was pleased to direct the

respondent management to reinstate the petitioner and

other employees against which the respondent

management has filed a Writ Appeal in W.A. No. 2043

and 2044 of 2002 in which the Hon’ble High Court was

pleased to set aside the order of the Hon’ble High Court

and directed to confirm the appointment of the 10

employees as permanent employees and directed the

39 employees including the petitioner to raise the

industrial dispute before the Conciliation authority and

the petitioner and his union raised the industrial dispute

before the Conciliation Officer and subsequently the

477

23 May 2017]

LA GAZETTE DE L’ETAT

union has withdrawn the industrial dispute raised before

the Conciliation officer and since the dispute raised

by the petitioner before the Conciliation officer was

failed, he filed this application before this court under

section 2-A (2) of the Industrial Disputes Act for

reinstatement with backwages, continuity of service and

all other attendant benefits.

15. The main contention of the respondent

management is that the petitioner is not a workmen and

he was working only as an Apprentice and the workers

in the respondent factory requires skill and the

petitioner has only served as an apprentice and never

worked as an workmen, he was only a trainee. On the

other hand, it is denied by the petitioner that he is only

the trainee apprentice and not the workmen of the

respondent factory and only as he involved in union

activities, he and other employees has been victimized

by the respondent management and that he is entitled

for order of reinstatement as a workmen of the factory.

16. On this aspect, the evidence and pleadings of

both the parties are carefully considered. The evidence

of PW.1 runs as follows;

“









ExR1 









MRF

Company 

MRF Company



tyre 

 MRF

Companytyre 

MRF Company

















MRF 

















EX. P5







Stipend 



From the above evidence, it is clear that the

petitioner has admitted the fact that he has joined in

the respondent factory as a apprentice trainee along

with the others from 1-5-2000 till 2001 and the

documents produced by the petitioner also disclose that

he has joined as an apprentice on 1-5-2000 and subject

to the terms and conditions mentioned in the

Apprentice order which would reveal the fact that the

respondent, management does not grant any automatic

confirmation in service at the end of the apprenticeship

period. Though the petitioner has stated in the evidence

that he has served in the respondent factory after

completion of training till 17-10-2001 in the

production activities, nothing is before this court to

prove the said contention of the petitioner. On the other

hand, it is stated by the petitioner that he was terminated

from service on 17-10-2001 and therefore the

contention raised by the petitioner that he was utilized

for production activities by the respondent management

till 17-10-2001 is not established by him and except

the oral evidence of the petitioner, no piece of paper is

before this court that he was utilized for production

activities by the respondent management till 17-10-2001.

17. On this aspect, the Learned Counsel for the

respondent relied upon the following decisions :

(i) National Small Industries Corporation.

Vs. Lakshminarayanan (Supreme Court dated

10-11-2006) Wherein,it has been held that,

“from the aforesaid documents it would be evident

that even if the respondent had been working on a

daily-wage basis prior to his appointment as

Apprentice Trainee (Shop Assistant), at least from

3rd May, 1990 till 2nd May, 1992, he was working

as an apprentice on a consolidated salary and the

respondent himself was conscious of such fact since

he had requested the corporation and its authorities

to absorb his services on a permanent basis

purportedly on the basis of a promise held out at the

time when he was interviewed for appointment to the

post of Apprentice Trainee (Shop Assistant). Other

478

LA GAZETTE DE L’ETAT

[23 May 2017

than the assertion made on behalf of the respondent

that the appellant had agreed to absorb the respondent

in Group 'D' Category as Peon/Shop Assistant after

completion of apprenticeship and the recommendation

said to have been made by the General Manager

indicating that the respondent could be appointed and

taken as a permanent worker, there is no other,

material on record to support the case made out by

the respondent. In the absence of any such material,

it is difficult to understand the reasoning of the

Labour Court that the respondent was not an

“apprentice trainee” but a “workman” who was made

to perform a full-time job under the guise of an

Apprentice Trainee. The High Court appears to have

been impressed by the reasoning of the Labour Court

with regard to the finding that although designated

as an apprentice, the respondent was not undergoing

training, but was an employee doing full time work

in the establishment. Such a view, in our judgment,

is not supported by the materials on record and. is

completely contrary to the appointment letter issued

to the respondent on 26th April, 1990 and the

respondent's own letter dated 29th April, 1992, in

admission of such fact. Had such a letter of

appointment not been available, the Labour Court

and/or the High Court could justifiably have

embarked on an exercise as to whether the respondent

was in effect a “trainee” under the Apprentices Act, 1961,

or a “workman” within the meaning of Section 2 (s)

of the 1947 Act. There is nothing on record to

indicate that the respondent's services had ever been

regularised or that he was brought on the rolls of

the permanent establishment”.

(ii) Vijayalakshmi Insecticides and Pesticides

Ltd., Hyderabad Vs. Chairman, Industrial Tribunal

- cum - Labour Court, Visakapatnam and others

(2004 L1R 387-A.P. High Court) wherein, it has

been held that,

“A.

Trainee-Termination

made

for

his

unsatisfactory work even during extended period

of training - Industrial Tribunal held, it illegal and

passed awards for reinstatement - Management

being aggrieved, have filed these petitions -

Challenging awards - High Court set aside the

award - The termination of a trainee not being a

workman under the Industrial Dispute Act, 1947

is neither retrenchment, nor illegal.

B. Industrial Dispute Act, 1947 - Sections 2A,

2(s) - Workman - Trainees terminated for

unsatisfactory work even during extended period

of training - Held that trainee not a workman under

2A of the Act - Dispute not maintainable - Award

being illegal, quashed.

A trainee will not be a workman under the

Industrial Disputes Act and, as such, he cannot

challenge his termination as made by the employer

for his unsatisfactory work even during the

extended period of training.

Termination of a trainee, who is not a workman,

will neither be retrenchment nor illegal.

(iii) (Ram Babu Gupta Vs. Presiding Officer,

Labour Court, Allahabad & another (2005 LLR 241

- Alahabad High Court) wherein, it has been held

that

“High Court will not interfere with the finding

of facts by the Labour Court holding that the

petitioner being an apprentice and not a workman

was not entitled to any relief since his termination

did not amount to retrenchment under the purview

of Industrial Disputes Act.

Merely because an agreement for apprenticeship,

though entered between the parties, has not been

registered under the Apprentices Act, it will not

change the status of the apprentice to a ‘workman’

under the Industrial Disputes Act and his

termination sans retrenchment compensation will

not be illegal”.

(iv) Management of Otis Elevator Co. Vs.

Presiding Officer, Industrial (Delhi High Court

dated 22-4-2003) wherein, it has been held that

“Similar contention of the petitioner that a

trainee cannot be called a workman as envisaged

under Section 2(s) of the Industrial Disputes Act

was also urged- in Kamal Kumar. V, J.P.S. Malih,

P.O., Labour Court and Ors. In the said decision it

was held that although Section 2(s) of the Act uses

the expression 'apprentice', but merely using the

word 'apprentice' within the definition of

'workman' would not confer a right on a trainee to

be called a 'workman' within the meaning of

Section 2(s) of the Industrial Disputes Act, The

said decision also related to a person who was

similarly engaged as that of the respondent No. 2

herein. There the petitioner was appointed by the

company as a trade trainee and the relationship of

the petitioner therein and the management was also

governed by similar terms and conditions as

stipulated in the present contract between the

petitioner and the respondent No.2. Considering

the various cases this court held that as the

petitioner therein had failed to prove and establish

that he was employed in the respondent company

479

23 May 2017]

LA GAZETTE DE L’ETAT

to do any skilled or unskilled manual, supervisory

or clerical work for hire or reward, therefore he

was a trainee and not a workman and the writ

petition was disposed of in terms of the aforesaid

observations".

(v) Kamal Kumar Vs. J.P.S Malik Presiding

Officer Labour Officer (Delhi High Court, dated

18-5-1998) wherein, it has been held that

“Admittedly in the present case the provisions

of Apprenticeship Act is not applicable. During

the period of training the petitioner was given a

stipend of ` 350 A close examination of the terms

and conditions of the contract entered into

between the petitioner and the respondents leads

to the conclusion that the principal object with

which the parties entered into the agreement of

training was an offer by the employer to the

petitioner to have an opportunity to learn trade or

craft to acquire such knowledge that may be

obtained in the course of training. From the

aforesaid terms of the agreement, it is clear that

the petitioner was a mere trainee for a particular

period and for a distinct purpose and the

respondent was not bound to employ him in their

works after the period of training is over.

It, therefore, cannot be said that the petitioner was

a workman of the respondent company, in as much

as, the purpose of engagement of the petitioner

was only to offer him training under the terms and

conditions stipulated above. No wage was paid to

the petitioner as defined within the meaning of

wages under the Industrial Disputes Act. Merely

because some amount was paid to the petitioner

as Provident Fund, it cannot be said that he had

become a workman of the Respondent Company”.

From the above observations of the Hon’ble

High Court and the Hon’ble Supreme Court, it is

clear that an apprentice or trainee cannot fall

under definition of workmen and that therefore

the petitioner being the trainee apprentice cannot

raise any industrial, dispute and therefore he is

not entitled for the relief of reinstatement.

18. Furthermore, though the petitioner has received

a stipend from the respondent management even if it is

termed as daily wages, he is also failed to establish that

he had been in service continuously for 240 days in the

respondent management as a workmen. In the light of

the Judgment reported in 2015-III-LLJ-337 (P&H),

LNIND 2015 PNH 8216, Wherein it has been held that

“Daily Wager - Reinstatement - Industrial

Disputes Act, 1947 (Act 1947), Sections 25-G and

25-H -Industrial Tribunal ordered reinstatement of

respondent No. 2 - petitioner contends respondent

daily wager cannot be reinstated for failing to

complete requisite number of working days -

Whether Sunday can also be included to calculate

days of employment in case of daily-wager and

whether daily-wager is entitled to reinstatement-

Held, in a case of a daily-wager, Sunday and other

holidays arc not to be counted because he is not paid

any salary for that day - Workman has not worked

for requisite days and his service is terminated in

violation of Section 25-G and 25-H of Act 1947 -

Since workman/respondent No. 2 has not completed

requisite days, therefore, he is not entitled to any

compensation as well as reinstatement - Petition

allowed’’.

From the above observation of the Hon’ble High

Court, it is clear that the petitioner has not established

that he has completed requisite number of working days

and therefore he is not entitled to any order of

reinstatement as claimed by the petitioner and

therefore it is held that the petitioner has failed to

establish his case and he is not entitled for any relief

as prayed for and therefore, the application filed by

the petitioner is liable to be dismissed.

19. In the result, the petition is dismissed. No cost.

Dictated to the stenographer, transcribed by her,

corrected and pronounced by me in the open court on

this the 27th day of March, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Pondicherry.

————

List of petitioner’s witnesses:

PW.1 — 3-11-2014

D. Baskar

List of petitioner’s exhibits:

Ex.P1 —

1-5-2000

Copy of the Apprenticeship

order.

Ex.P2 — 1-11-2000

Copy of the Apprenticeship

order.

Ex.P3 —

1-5-2001

Copy of the Apprenticeship

order.

Ex. P4 — 29-9-2001

Copy of the advocate notice

Ex. P5 —17-10-2001

Copy of the memo issued to

pettitioner.

Ex. P6 — 10-6-2002

Copy of the order passed in

W.P. No. 20270, 20591 and

19/2002.

480

LA GAZETTE DE L’ETAT

[23 May 2017

Ex. P7 —

4-1-2008

Copy of the order passed in

W.P. No.2043/02 & 2044/02.

Ex. P8 — 30-4-2012

Copy of the 2-A petition

field by the petitioner.

Ex. P9 — 16-7-2012

Copy of the counter statement

of the repondent.

Ex. P10 — 22-8-2012

Copy of the rejointer statement

of the petitioner..

Ex. P11—24-6-2013

Copy of the concilation

failure report issued to

petitioner.

List of Respondent’s witness:

RW1

—

6-1-2016

C. Rajadurai

List of Respondent’s exhibits:

Ex.R1 —

1-5-2000

Apprenticeship order

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Pondicherry.

————

GOVERNMENT OF PUDUCHERRY

LABOUR DEPARTMENT

(G.O. Rt. No. 62/Lab./AIL/T/2017,

Puducherry, dated 24th April 2017)

NOTIFICATION

Whereas, the Award in I.D.(L) No. 41/2013, dated

27-3-2017 of the Industrial Tribunal-cum-Labour

Court, Puducherry in respect of the industrial dispute

between Thiru K.S. Karthikeyan S/o.V. Subramanian,

Puducherry against the management of M/s. MRF

Limited, Eripakkam Village, Puduchcrry over to

reinstate the petitioner with back wages, continuity of

service and all other attendant benefits has been

received;

Now, therefore, in exercise of the powers conferred

by sub-section (1) of section 17 of the Industrial

Disputes Act, 1947 (Central Act XIV of 1947) read

with the Notification issued in Labour Department’s

G. O. Ms. No. 20/9/Lab./L, dated 23-5-91, it is hereby

directed by Secretary to Government (Labour) that the

said Award shall be published in the Official Gazette,

Puducherry.

(By order)

E. VALLAVAN,

Commissioner of Labour-cum-Additional

Secretary to Government (Labour).

BEFORE THE INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT AT PUDUCHERRY

Present :Thiru G. THANENDRAN, B.COM., M.L.,

Presiding Officer.

Monday, the 27th day of March 2017.

I.D. (L) No. 41/2013

K.S. Karthikeyan,

. . Petitioner

S/o. V. Subramanian,

Pillayarkoil Street,

Kariamanikkam,

Puducherry.

Versus

The Management of MRF Limited,

Eripakkam Village,

Nettapakkam Commune,

Puducherry-605 106.

. . Respondent

This industrial dispute coming on 21-2-2017 before

m e f o r f i n a l h e a r i n g i n t h e p r e s e n c e o f

Thiru P. Chandrasekar, Counsel for the petitioner and

Thiruvalargal K. Babu and C. Arivajagne, Advocates for

the respondent, upon hearing both sides, upon perusing

the case records, after having stood over for

consideration till this day, this Court passed the

following:

AWARD

1. This is a petition filed by the petitioner under

section 2-A(2) of the Industrial Disputes Act praying

to, direct the respondent/Management to reinstate the

petitioner with back wages, continuity of service and

all other attendant benefits.

2. The averments in the claim statement of the

petitioner, in brief, are as follows:-

(i) The petitioner is constrained to raise this

dispute against the illegal termination of his service

by the respondent management with effect from

9-10-2001. He was a workman, employed by the

respondent management and the said management is

a company registered under the Companies Act and

engaged in the business of manufacture and sale of car

and truck and redial tyres and the Pondicherry factory

commenced the production activity in the year 1998,

apart from its factory in Puducherry, the respondent

management also having its factories at Thiruvottriyur,

Arakonam, Medak, Goa and Kottayam and the

petitioner joined the service of the respondent

481

23 May 2017]

LA GAZETTE DE L’ETAT

management vide an apprenticeship order, dated

1-5-2000 and in the above order, it was stated that his

apprenticeship period was for six months. Though, he

was appointed as an “Apprentice” no training was

imparted to him and he was directed to work, which

involved in production activities of the respondent

factory and the respondent management again issued

order, dated 1-11-2000, appointing the petitioner as

“Apprentice” and his so-called apprenticeship period

was for six months and as per order of apprenticeship,

dated 1-11-2001, petitioner so called apprenticeship

period came to an end with effect from 30-4-2001, and

even after the expiry of the said period, the respondent

management continued to engage the petitioner in the

production activities and from the date of his joining

in service, he had been rendering service continuously

and to the utmost satisfaction of his superior officer.

(ii) The

workers

engaged

regular

manufacturing activity were designated as Apprentices

and probationer and many of them without any

designation but said to be 'under observation' and the

respondent management adopted such a practice in a

bid to evade the application of the Labour Welfare

Legislations and was in fact not complying with the

Labour Laws and since the workers were denied various

benefits under labour welfare legislations, they decided

to form a trade union to raise voice for their

grievances and in the above circumstances, majority

workers of the respondent management formed a trade

union namely “MRF Thozhilalar Sangam” and the

petitioner was an active member of the said union and

the respondent management was duly informed about

the information of the aforesaid trade union vide its

communication, dated 29-9-2001 and immediately

after knowing about the information of the trade union,

the respondent got furious and commenced its

victimization program against the workers belonging

to the “MRF Thozhilalar Sangam” and the management

terminated all the 218 members of the trade union

without following any procedures laid down under the

Industrial Disputes Act and the petitioner was issued

an order of termination, dated 9-10-2001, alleging that

his apprenticeship period come to automatic end by

efflux of time and his apprenticeship stand declared as

ceased with effect from close of work on 9-10-2001.

(iii) The “MRF Thozhilalar Sangam” filed

W.P. No. 20591 of 2001 before the Hon'ble High

Court, Madras and in the meanwhile, the respondent

management started engaging outsiders to do the work

hitherto done by the petitioner and other terminated

workers and on behalf of the petitioner and other

terminated workers, his union filed another writ

petition viz., W.P. No. 19 of 2002 before the Hon’ble

High Court, Madras seeking direction to the

respondent management net to engage outsiders

without providing employment to the members of the

petitioner’s union and in the meanwhile, with an

ulterior motive, the respondent started its own puppet

union under the name “MRF Employees Union” which

closely resembled the petitioner union namely “MRF

Thozhilalar Sangam” and that while this being so, the

Hon’ble High Court was pleased to pass common order

in W.P.No.20591 of 2001 and 19 of 2002, in which,

it was observed that situation created by the

management was most unconscionable, monstrous and

deplorable and the Hon'ble High Court was further

pleased to hold that the fact of there not being single

permanent worker on rolls of the factory betrays the

glaring unfair labour practices of the respondent

management and the Hon’ble High Court was further

pleased to hold that it is the formation of the union

that had triggered the spree of terminations and both

the writ petitions filed by his union viz., W.P. No.

20591 of 2001 allowed by the Hon'ble High Court and

directed the respondent management to reinstated the

workmen with full back wages and as against the said

order, the respondent management, preferred W.A.

Nos. 2043 and 2044 of 2002 and during the pendency

of the aforesaid appeal, the management had reinstated

49 workers including the petitioner in service.

(iv) It is further stated that in W.A. No. 2043 of

2002 the management had taken a stand that on

reconsideration, out of 49 workers who were

terminated from service, the management agreed for

taking 10 persons who can be reinstated as probationer

for one year but the respondent had not preferred to

reinstate the petitioner and 38 workmen in service and

on 4-1-2008, the Hon’ble High Court was pleased to

pass orders in W.A. No. 2043 and 2044 of 2002 and

W.A. M.P. No. 3454 of 2002 and W.P. Nos. 24183 of

2005 and W.P. M.P. No. 26395 of 2005 and in that

order, the Division Bench of the Hon’ble High Court

was pleased to state that the management has been

allowed to reinstate the aforesaid ten workmen as

probationers for one year and they may confirm them

after one year, if there are vacancies and their

performance is satisfactory and so far as rest of 39

workers, including petitioner, they raise an industrial

disputes in respect of termination of their services,

which may be adjudicated before the Labour Court/

Industrial Tribunal Court and hence, the petitioner is

raising this industrial dispute against the termination

of his services by the respondent management with

effect from 9-10-2001.

482

LA GAZETTE DE L’ETAT

[23 May 2017

(v) The termination

of his services by the

respondent management is unsustainable in law. The

termination

petitioner

service

unfair,

unreasonable and unfair labour practice on the part of

respondent management. The petitioner submits that

from the date of his appointment in service, he had

been performing his work, which is that of a permanent

and perennial nature. Though the petitioner was

designated as an apprentice he was not given any

training at all and was doing the same work as

performed by the permanent workman. Hence, the

petitioner is not an Apprentice as defined in section

2(aa) of the Apprentices Act. The petitioner is a

workman within the meaning of section 2(s) of the

Industrial Dispute Act, 1947 and the termination of the

petitioner without following procedures laid down

under the Industrial Dispute Act, 1947 is unsustainable

in law. The petitioner and other workers were

victimized for their formation of the genuine trade

union namely “MRF Thozhilalar Sangam”. Though the

petitioner and other workers were engaged in the

manufacturing process in the\factory of the respondent

management by designating them as Apprentice and

probationers, they were very sincere and hard workers

and they have contributed more for the respondent

management for higher production. The act on the part

of the respondent management in terminating the

petitioner’s services is vindictive and the colourable

excercise of powers on the part of the respondent

management.

The

attitude

of the

respondent

management in terminating the petitioner’s service is

unjust and unfair labour practice adopted by the

management.

(vi) The termination of his service by the

respondent/ management is 'retrenchment' within the

meaning of section 2(aa) of the Industrial Disputes

Act. The termination of the petitioner's services by the

respondent management without following the

provisions laid down under section 25 N of the

Industrial Dispute Act and in any event section 25F of

the Industrial Disputes Act, 1947 is unfair and

unsustainable in law. Hence the impugned order of

termination is void in law. There was no valid contract

of apprenticeship between the petitioner and

respondent management. The petitioner had been

working

under

the

respondent

management

continuously without any break from the date of his

appointment in service and had worked continuously

for about 1½ year. By virtue of his permanent and

perennial nature of work the petitioner was entitled to

be appointed as permanent workman. The petitioner is

the sole breadwinner of his family and due to his

termination from service, the petitioner and his family

have been facing undue mental and economic hardship.

(vii) The petitioner was terminated from service

vide order of the respondent, dated 9-10-2001, he did

not raise any industrial dispute immediately due to the

reasons that on behalf of him and other terminated

workers, his union had taken up the issue by way of

filing writ petitions before the Hon’ble High Court,

Madras and against the order passed in the writ petition,

the respondent management preferred Writ Appeal and

after the disposal of the above writ appeal, the

petitioner union preferred Special Leave petition

before the Hon’ble Supreme Court and the same was

dismissed on 22-5-2009 and thereafter petitioner

union dispute and subsequently on legal advice, the

petitioner raised dispute under section 2-A of the

Industrial Dispute Act on 30-4-2012 against the

termination of his services and the conciliation

proceedings ended in failure on 24-6-2013 hence,

some delay has been caused in raising his dispute and

such delay are neither willful nor wanton. He has not

been gainfully employed anywhere and prayed this

Court to direct the respondent/management to reinstate

the petitioner with back wages, continuity of service

and all other attendant benefits.

3. The brief averments in the counter filed by the

respondent are as follows :

(i) The claim of the petition are baseless,

vexatious, devoid of merits and is not maintainable

either in law or on facts and the petitioner has no

locus standi to raise any industrial dispute as against

this respondent, since he was only a trainee and not a

workman of the respondent management and the

extraordinary delay in approaching this Court cannot

be condoned as the reason given by him is not a

satisfying or substantial reason for not approaching

this court or the Conciliation Authority at the right

time and that even the previous petition filed by the

“MRF Thozhilalar Sangam” before the Conciliation

Authority was filed at a highly belated stage and

knowing well that they cannot succeed in the said

dispute, they had withdrawn the same and the

contention rose by the petitioner before the Hon’ble

Court are devoid of merit and concocted with

reference to the facts alleged and that the factory at

Puducherry commenced trial production in the year

1998 and manufactures various radial tyres which is

highly technical and is a complicated one and uses

logistic control and the workers are given in-depth

training on various machines, so that each workman is

able to operate all machines and is not merely

specializing on a particular machine. Besides that the

technology involved is totally indigenous and it takes

483

23 May 2017]

LA GAZETTE DE L’ETAT

for the workmen time in learn the various skills on each

machine and the workers have been inducted in a

pleased manner over the past years and that the practice

followed in the factory in Puducherry is of recruiting

persons from nearby villages of Puducherry who

mostly do not-posses qualification beyond 12th

standard, this has been done, so that people of the

local villages would be able to benefit from the new

factory that has come up in their vicinity and there are

no Trade Apprentices for Tyre industry and these

individuals were taken as apprentices to examine their

suitability to learn and assimilate the highly skilled

process of manufacture of radial tyres and as a policy

in all the factories only raw hands are recruited and

the present factory started with 12 numbers of

machines and now the number of machines installed

slowly progressed and The numbers of apprentices

taken were also gradually increased keeping pace with

the number of machines that were newly installed and

that these types of machine are the most advanced

version which were not used in any other factory of

the respondent management and therefore that was an

added reason as to why the training had to be imparted

carefully and meticulously over a period of time in a

phased manner.

(ii) It is further stated that in order to impart

training to these persons, the respondent company had

engaged about 79 supervisors, drawn from its other

factories as they had experience, under whose

immediate supervision the apprentices learn how to

work on various machines installed and obviously

conscious of the need to learn how to operate all these

highly sophisticated technically advanced machines

that involved electronic operations as well, the

apprentices had no objection whatsoever to learn the

trade and that the petitioner is not a workman/

employee of the respondent management and he was

an Apprentice, as stated above who was given training

under the Company’s scheme on and from 1-5-2000

and was paid stipend during the period of his training

as per the terms and conditions of apprenticeship

order issued to him and his apprenticeship was

discontinued in accordance with the said contract vide

order, dated 9-10-2001 and that from the date of hie

joining the petitioner had been rendering his service

continuously and to the utmost satisfaction of his

superior officer is vehemently denied. The MRF

Thozhilalar Sangam (with whom the petitioner alleges

to be a member) in order to gain support, instigated

the workmen and Apprentices to go slow and also had

created a serious industrial unrest in the factory and

from 3-10-2001 the workmen and Apprentices

including the petitioner had started to involve in go

slow activities and they had also boycotted the canteen

facilities and refused to have lunch and indulged in

anti-management activities. Therefore, a notice was

issued on 10-10-2001 that the preparation of food

would be stopped on and from 13-10-2001 if such an

attitude continued and as they refused to cooperate, the

management stopped preparing food and the production

of tyres at the rate of 1877 as on 30-9-2001 had

become reduced day by day, ultimately coming down

to 112 tyres as on 20-10-2001. The apprenticeship of

43 Apprentices including the petitioner were

discontinued in accordance with the contract, as there

was no work and therefore consequently no training

could be imparted to them as production had totally

stopped from 22-10-2001 and besides, as there was no

work, the casuals were also dispensed with and in the

meantime, there had been various acts of indiscipline

and unlawful activities indulged by the workmen and

they also indulged in atrocities creating law and order

situation and caused loss and damage to the properties

of the company and on 9-10-2001 they prevented the

movement of a loaded lorry and on 24-10-2001 they

came to the factory gate shouting slogans and

threatened the management staff and blocked and

management staff from leaving after the first shift and

on the intervention by the police they were let out and

on 25-10-2001 they entered in to the canteen and

thrown the plates and upset the Bain marie system and

on 27-10-2001 they entered the Godown where the

finished products were stored and pulled down the

shutters in the Godown Supervision and Production

Supervisor and on 11-10-2001 they refused to leave

the premises and only after the intervention of Police,

the workmen left the premises.

(iii) The contentions of the petitioner that 218

members of the MRF Thozhilalar Sangam without

following any procedures laid down under the

Industrial Disputes Act and that the respondent

management is having the practice of victimizing its

own workmen if they indulge in trade union activities

and that the respondent is having the practice of

evading application of labour welfare legislations are

total falsehood and are vehemently denied by the

respondent. As the trial production was a time

consuming process, after commissioning of the

factory, only persons who have been trained and found

suitable can be absorbed into permanent post and

therefore the formation of union had nothing to do

with terminating the workers and as such it is stoutly

denied that the workers were victimized for the

formation of trade union and as admitted by the

484

LA GAZETTE DE L’ETAT

[23 May 2017

petitioner, the respondent has factories in other places

where there are unions and there can be no accusation

of the management trying to curtail the legitimate

union activities.

(iv) It is further stated that the allegation of the

petitioner that the respondent started engaging

outsiders to do the work hitherto done by the

petitioner and other terminated workers and that the

respondent started its own puppet union under the name

“MRF Employees Union” with ulterior motive and that

the respondent has reinstated 49 workers including the

petitioner during the pendency of Writ Appeal before

the Hon’ble High Court are emphatically denied by this

respondent and submits that there is no iota of truth

in the same and only 10 persons were taken back as

probationers vide Probation Orders dated 22-2-2008

and were subsequently confirmed in service as per the

judgment passed by the Hon'ble High Court of

judicature at Madras in Writ Appeal Nos.2043 and 2044

of 2002 modifying the orders in W.P. No. 20591 of

2001 and W.P. No. 19 of 2002 and as per the said

judgment in the said writ appeals the Hon’ble High

Court has observed that 'on behalf of the rest of the

39 workmen the union may raise an industrial dispute

in regard to their dismissal/termination but had not

specifically stated that the individuals may prefer

industrial dispute as they were not workmen but were

only Apprentices and though the petitioner has

admitted that the union has raised an industrial dispute

with reference to the said 39 persons, later it had

withdrawn the said dispute for the reasons best known

to the petitioner and further the petitioner has not

given any clear reason as to why the union has

withdrawn the industrial dispute raised earlier on

behalf of 39 persons and why the petitioner is now

again belatedly preferring this dispute individually as

against the order of the Hon’ble High Court and

further in the same judgment the Hon’ble High Court

has directed the MRF Thozhilalar Sangam to approach

the appropriate forum for appropriate relief in respect

of genuineness of the union and as on date the union

has not done anything with reference to the same.

(v) It

further

stated

that

respondent

management had not involved/indulged in any sort of

unfair labour practice, much less and alleged by the

petitioner at any point of time and further as the

petitioner was only an Apprentice, hence, section 25

F and 25 N of the Industrial Dispute Act will not attract

and that the appointment of the petitioner as an

Apprentice cannot be termed as unfair labour practice

under schedule V of the Industrial Disputes Act and the

discontinuance of the apprenticeship of the petitioner

is as per the terms of the apprentice order issued to

him and the terms and conditions of which was

admitted and accepted by him and hence the said

discontinuance is fair, just and proper and that this is

a case of discontinuance of apprenticeship governed

by the terms and conditions of his apprenticeship

order and hence the petitioner's claim of alleged non-

employment does not arise and are devoid of merits

and prayed for dismissal of the petition.

4. In the course of enquiry PWl. was examined and

Ex.PI to Ex.P9 were marked and on the side of the

respondent RW.l was examined and Ex.Rl was marked.

5. The point for consideration is:

Whether the petitioner is entitled for the order of

reinstatement with back wages, continuity of service

and all other attendant benefits or not ?

6. Both side arguments were heard.

Written

arguments were filed by both sides. In support of his

case, the learned counsel for the petitioner has relied

upon Judgment reported in 2006 (1) L.L.N.

PS.No.554, Telecom District Manager, Valsad Vs.

Namlabai Ranchhodbhai Patel. Wherein, the Hon’ble

High Court, Gujarat has held as follows:

“4. Industrial Disputes Act, 1 94 7, S.2 5-F,

Non-compliance with Effect - Held, where pre-

requisite for valid retrenchment as laid down in section

25-F has not been complied with, retrenchment

bringing about termination of service is ab-initio void

- Workman is entitled to reinstatement”.

7. On the other hand, the learned Counsel for the

respondent relied upon the following citations in

support of his case:-

i. National

Small

Industries

Corpn.

Vs.

Lakshminarayanan (Supreme Court, dated 10-11-2006)

ii. Vijayalakshmi Insecticides and Pesticides

Limited, Hyderabad Vs. Chairman, Industrial Tribunal-

cum-Labour Court, Visakapatnam and others (2004

L1R 387-A.P. High Court).

iii. Ram Babu Gupta Vs. Presiding Officer,

Labour Court, Allahabad and another (2005 LLR 241-

Alahabad High Court).

iv. Management of Otis Elevator Co. Vs.

Presiding Officer, Industrial (Delhi High Court, dated

22-4-2003) .

V. Kamal Kumar Vs. J.P.S Malik, Presiding

Officer Labour Officer (Delhi High Court, dated

18-5-1998).

485

23 May 2017]

LA GAZETTE DE L’ETAT

vi. Kartik Ramachandran R. Vs. P.O. Labour

Court and Anr. (Delhi High Court, dated 19-10-2006).

vii. Raj Kumar Rastogi Vs. P.O. Labour Court-X

and Anr (Delhi High Court, dated 18-5-2015).

viii. Gujarat Electricity Board Vs. Balkhan

D. Joya (Gujarat High Court, dated 29-2-2000).

8. This application is filed against the termination

of the petitioner from service by the respondent

management seeking an award directing the respondent

to reinstate the petitioner into service and all other

attendant benefits. It is the evidence of PW.l that the

petitioner joined in the service of the respondent

management as an Apprentice as per the order issued

by the respondent on 1-5-2000 and after the apprentice

period of six months the petitioner was appointed for

the production activities of the respondent factory and

again apprentice order was issued on 1-11-2000 and

apprentice period came to an end with effect from

30-4-2001 and even after the expiry of the said period

the respondent management engaged the petitioner in

the production activities and the petitioner was

designated as an “apprentice” and he was engaged

directly for the manufacturing activities of the

respondent management and many of the apprentice

and probationers were not given any designation and

the respondent management adopted such a practice to

evade the application of the Labour Welfare

Legislations and avoid the Labour Laws and the union

workers were denied various benefits under Labour

Welfare Legislations and that therefore the trade union

namely MRF Thozhilalar Sangam was formed by the

workers and the respondent management was also

informed about the formation of the trade union under

their communication, dated 29-9-2001 and therefore

the respondent management has got furious and

commenced its victimization program against the

workers belonging to the union and the management

terminated all the 218 members of the trade union

without following any procedures laid down under the

Industrial Disputes Act and this petitioner was issued

an order of termination on 9-10-2001 alleging that the

apprenticeship period comes to an end and on behalf

of the terminated workers MRF Thozhilalar Sangam

has filed a writ petition in W.P. No. 20591 of 2001 and

on behalf of the petitioner and other terminated

workers the union has filed a writ petition in W.P. No.

19 of 2002 seeking the direction against the respondent

not to engage out siders without first providing

employment to the members of the petitioner’s union

and that respondent started its own puppet union in the

name of MRF Employees Union and the Hon’ble High

Court was pleased to pass common order in W.P. No.

20591 of 2001 and 19 of 2002 allowing the writ

petition and directed the respondent management to

reinstate the workmen with full back wages and against

the said order the respondent management preferred

Writ Appeal No. 2043 and 2044 of 2002 and during

the pendency of the Appeal, the Court has directed the

management to reinstate the 49 workers including the

petitioner in service and in the Appeal the management

had taken stand that on consideration out of 49

workers who were terminated from service, the

management has agreed for taking 10 persons and

reinstated as probationers for one year but the

respondent had not preferred to reinstate the petitioner

and 38 workmen in service and on 4-1-2008, the

Hon’ble High Court was pleased to pass order to

reinstate the abovesaid 10 workmen as probationers for

one year and they may confirm them after one year, if

there are vacancies and their performance is

satisfactory and therefore the rest of 39 workers

including the petitioner raised an industrial dispute in

respect of termination of the service and the

petitioner is raising the industrial dispute against the

termination of his service by the respondent

management with effect from 9-10-2001.

9. In support of his claim statement and evidence,

the petitioner has exhibited the copy of the

Apprenticeship order issued by the respondent on

1-5-2000 as Ex.Pl, the copy of another Apprenticeship

order issued by the respondent on 1-11-2000 as Ex.P2,

the copy of the advance notice, dated 29-9-2001 given

by the petitioner union to the respondent as Ex.P3, the

copy of the Memo, dated 9-10-2001 issued by the

respondent as Ex.P4, the copy of the order passed in

W.P. No. 20270, 20591 and 19/2002 on 10-6-2002 as

Ex.P5, the copy of the order passed in W.P. No. 2043/02

and 2044/02 on 4-1-2008 as Ex.P6, the copy of the

2-A petition filed by the petitioner on 30-4-2012 as

Ex.P7, the copy of the rejoinder filed by the petitioner,

dated 22-8-2012 as Ex.P8, the copy of the conciliation

failure report, dated 24-6-2013 as Ex.P9.

10. The above documents and oral evidence of

PW.1 would go to show that petitioner has joined in

the respondent establishment on 1-5-2000 as an

apprentice and he has served till 2001 and thereafter

he was terminated from service in the year on 17-10-2001

against which the union has filed the writ petition

before the Hon’ble High Court in W.P. No. 20591/2001

and another writ petition was filed in W.P. No. 19/2002

and the Hon’sble High Court was pleased to direct the

respondent to reinstate 218 workmen against which

the respondent management filed writ Appeal in

486

LA GAZETTE DE L’ETAT

[23 May 2017

W.A. No. 2043 and 2044/2002 in which the

Hon’ble High Court was pleased to direct the

respondent to reinstate the 49 workmen but the

respondent management has only reinstated 10

workmen and including the petitioner 39 workmen

have been denied employment and on 4-1-2008 an

Appeal was ordered by the Hon'ble High Court and

directed the respondent management to confirm the

appointment of the 10 workmen and directed the

petitioner and other 38 employees to raise industrial

dispute before the Conciliation Officer and at the

Conciliation all the other labourers have been settled

by the respondent management and this petitioner had

been denied employment and that therefore he has

filed this application for reinstatement.

11. It is the evidence of the respondent RW.l that

the petitioner has no locus standi to raise industrial

dispute as against the respondent since he was only a

Trainee/Apprentice and not a workman of the

respondent management and that the petitioner has

raised this industrial dispute with the extraordinary

delay before this court and before the Conciliation

authority and the respondent factory commenced

production in the year 1998 and manufactures various

radial tyres which is highly technical and is a

complicated one and uses logistic control and that the

workmen, are given in depth training on various

machines so that each workmen is able to operate all

machines and is not merely specializing on a particular

machine and to give benefit to the people of the local

villages the persons who are having qualification of

12th standard were appointed as Apprentices and

examine their suitability to learn and assimilate the

highly skilled process of manufacture of radial tyres

and the present factory started with 12 number of

machines and number of apprentices taken were also

gradually increased keeping pace with the number of

machines that were newly installed and the training had

to be imparted carefully and meticulously over a

period of time in a phased manner and that in order to

impart training to these persons the respondent

management had engaged about 79 supervisors

appointed from its other factories as they had

experience, under whose immediate supervision the

apprentices learn how to work on various machines

installed and the apprentices who were appointed on

1-5-2000 and the petitioner who are appointed as

apprentice was paid stipend during the period of his

training as per the terms and conditions of

Apprenticeship Order issued to him and his

apprenticeship was discontinued in accordance with the

said contract vide order dated 9-10-2001 and that

therefore the petitioner was not a workmen employed

by the respondent management and no training was

imparted to him.

12. It is the further evidence of the respondent that

the workmen by way of go-slow working, boycotting

canteen facilities, preventing movement of the

management staffs, raising slogans against the

management staffs and threatened them from 3-10-2001

and therefore the production of the factory was

seriously diminished and this industrial unrest

scenario, the probationary period of about 6

probationers were brought to an end as the same had

come to an end by efflux of time and the

apprenticeship of 43 apprentices including the

petitioner were discontinued in accordance with the

contract, as there was no work and therefore

consequently no training could be imparted to them as

production had totally stopped from 22-10-2001 and

that they have not having any practice of victimization

of workmen since indulged in trade union activities and

that only the persons who have been trained and found

suitable can be absorbed into permanent post and that

therefore formation of union had nothing to do with

the termination of the workers and the respondent

management never tried to curtail the legitimate union

activities.

13. It is the further evidence of the respondent RW.1

that they have never reinstated 49 workers at any time

and only 10 persons were taken back as probationers

vide

Probation

Order

dated

22-2-2008

and

subsequently they were confirmed as per the Judgment

passed by the Hon’ble High Court of Judicature at

Madras in Writ Appeal Nos. 2043 and 2044 of 2002

modifying the orders in W.P. No. 20591 of 2001 and

W.P. No. 19 of 2002 and in the Writ Appeals the

Hon'ble High Court was observed that the rest of the

workmen of the union may raise the industrial dispute

in regard to their dismissal/termination and that

petitioner was not clear why the union has withdrawn

the industrial dispute raised on behalf of the 39

persons and that the respondent management has not

indulged in any sort of unfair labour practice as alleged

by the petitioner and since the petitioner is not a

workmen and only he is an apprentice, section 25 F

and 25 N of the Industrial Dispute Act would not attract

and in support of his case, the respondent has

exhibited Ex.Rl Apprenticeship order issued to the

petitioner by the respondent management on 1-5-2000.

14. From the evidence of the petitioner and the

respondent, it is found that the following factors are

admitted by both the parties that the petitioner has

joined as an Apprentice in the respondent factory on

1-5-2000 and he had served till 9-10-2001 as an

apprentice and against which the petitioner union has

487

23 May 2017]

LA GAZETTE DE L’ETAT

filed writ petition before the Hon’ble High Court in

W.P. No. 20591 of 2001 and 19 of 2002 in which the

Hon'ble High Court was pleased to direct the

respondent management to reinstate the petitioner and

other employees against which the respondent

management has filed a Writ Appeal in W.A. No. 2043

and 2044 of 2002 in which the Hon’ble High Court was

pleased to set aside the order of the Hon'ble High

Court and directed to confirm the appointment of

the 10 employees as permanent employees and

directed the 39 employees including the petitioner to

raise the industrial dispute before the Conciliation

authority and the petitioner and his union raised the

industrial dispute before the Conciliation Officer and

subsequently the union has withdrawn the industrial

dispute raised before the Conciliation officer and

since the dispute raised by the petitioner before the

Conciliation officer was failed, he filed this

application before this Court under section 2-A (2) of

the Industrial Disputes Act for reinstatement with back

wages, continuity of service and all other attendant

benefits.

15. The main contention of the respondent

management is that the petitioner is not a workmen and

he was working only as an Apprentice and the workers

in the respondent factory requires skill and the

petitioner has only served as an apprentice and never

worked as an workmen, he was only a trainee. On the

other hand, it is denied by the petitioner that he is only

the trainee apprentice and not the workmen of the

respondent factory and only as he involved in union

activities, he and other employees has been victimized

by the respondent management and that he is entitled

for order of reinstatement as a workmen of the

factory.

16. On this aspect, the evidence and pleadings of

both the parties are carefully considered. The evidence

of PW.1 runs as follows:

“



















MRF Company 

MRF Company



tyre 





 MRF Companytyre 

MRF Company









Write Appeal

Probation









Write Appeal









Write Appeal













From the above evidence, it is clear that the

petitioner has admitted the fact that he has joined in

the respondent factory as a apprentice trainee along

with the others from 1-5-2000 till 2001 and the

documents produced by the petitioner also disclose

that he has joined as an apprentice on 1-5-2000 and

subject to the terms and conditions mentioned in the

Apprentice order which would reveal the fact that the

respondent management does not grant any automatic

confirmation in service at the end of the apprenticeship

period. Though the petitioner has stated in the evidence

that he has served in the respondent factory after

completion of training till 17-10-2001 in the

production activities, nothing is before this Court to

prove the said contention of the petitioner. On the

other hand, it is stated by the petitioner that he was

terminated from service on 17-10-2001 and therefore

the contention raised by the petitioner that he was

utilized for production activities by the respondent

management till 17-10-2001 is not established by him

and except the oral evidence of the petitioner, no piece

of paper is before this Court that he was utilized for

production activities by the respondent management

till 17-10-2001.

17. On this aspect, the Learned Counsel for the

respondent relied upon the following decisions :

(i) National

Small

Industries

Corpn.

Vs.

Lakshminarayanan

(Supreme

Court,

dated

10-11-2006) Wherein, it has been held that,

488

LA GAZETTE DE L’ETAT

[23 May 2017

“from the aforesaid documents it would be

evident that even if the respondent had been

working on a daily-wage basis prior to his

appointment as Apprentice Trainee (Shop Assistant),

at least from 3rd May, 1990 till 2nd May, 1992, he

was working as an apprentice on a consolidated

salary and the respondent himself was conscious of

such fact since he had requested the corporation and

its authorities to absorb his services on a permanent

basis purportedly on the basis of a promise held out

at the time when he was interviewed for appointment

to the post of Apprentice Trainee (Shop Assistant).

Other than the assertion made on behalf of the

respondent that the appellant had agreed to absorb

the respondent in Group ‘D’ Category as Peon/Shop

Assistant after completion of apprenticeship and the

recommendation said to have been made by the

General Manager indicating that the respondent

could be appointed and taken as a permanent worker,

there is no other material on record to support the

case made out by the respondent. In the absence of

any such material, it is difficult to understand the

reasoning of the Labour Court that the respondent

was not an “apprentice trainee” but a “workman”

who was made to perform a full-time job under the

guise of an Apprentice Trainee. The High Court

appears to have been impressed by the reasoning of

the Labour Court with regard to the finding that

although designated, as an apprentice, the

respondent was not undergoing training, but was an

employee doing full time work in the establishment.

Such a view in our judgment, is not supported by the

materials on record and is completely contrary to

the appointment letter issued to the respondent on

26th April, 1990 and the respondent’s own letter

dated 29th April, 1992, in admission of such fact.

Had such a letter of appointment not been available,

the Labour Court, and/or the High Court could

justifiably have embarked on an exercise as to

whether the respondent was in effect a “trainee”

under the Apprentices Act, 1961, or a-“workman”

within the meaning of section 2 (s) of the 1947 Act.

There is nothing on record to indicate that the

respondent's services had ever been regularized or

that he was brought on the rolls of the permanent

establishment”.

(ii) Vijayalakshmi Insecticides and Pesticides

Limited, Hyderabad Vs. Chairman, Industrial

Tribunal-cum- Labour Court, Visakapatnam and

others (2004 L1R 387-A.P. High Court) wherein,

it has been held that,

“A. TRAINEE-Termination

made

for

his

unsatisfactory work even during extended period of

training-Industrial Tribunal held it illegal and passed

awards

for

reinstatement-Management

being

aggrieved, have filed these petitions-Challenging

awards-High Court set aside the award-The

termination of a trainee not being a workman under

the Industrial Dispute Act, 1947 is neither

retrenchment, nor illegal.

B. INDUSTRIAL DISPUTES ACT, 1947-sections

2A,

2(s)-Workman-Trainees

terminated

for

unsatisfactory work even during extended period of

training-Held that trainee not a workman under 2A

of the Act-Dispute not maintainable - Award being

illegal, quashed. A trainee will not be a workman

under the Industrial Disputes Act and, as such, he

cannot challenge his termination as made by the

employer for his unsatisfactory work even during

the extended period of training. Termination of a

trainee, who is not a workman, will neither be

retrenchment nor illegal.

(iii) (Ram Babu Gupta Vs. Presiding Officer,

Labour Court. Allahabad and another (2005 LLR

241- Alahabad High Court) wherein, it has been

held that

“High Court will not interfere with the finding of

facts by the Labour Court holding that the petitioner

being an apprentice and not a workman was not

entitled to any relief since his termination did not

amount to retrenchment under the purview of

Industrial Disputes Act. Merely because an

agreement for apprenticeship, though entered

between the parties, has not been registered under

the Apprentices Act, it will not change the status of

the apprentice to a “workman” under the Industrial

Disputes Act and his termination sans retrenchment

compensation will not be illegal”.

(iv) Management of Otis Elevator Co. Vs.

Presiding Officer, Industrial (Delhi High Court,

dated 22-4-2003) wherein, it has been held that

“Similar contention of the petitioner that a

trainee cannot be called a workman as envisaged

under section 2(s) of the Industrial Disputes Act was

also urged in Kamal Kumar Vs. J.P.S. Malik, P.O.,

Labour Court and Ors., . In the said decision it was

held that although section 2(s) of the Act uses the

expression ‘apprentice’, but merely using the word

‘apprentice’ within the definition of ‘workman’

would not confer a right on a trainee to be called a

489

23 May 2017]

LA GAZETTE DE L’ETAT

'workman' within the meaning of section 2(s) of the

Industrial Disputes Act. The said decision also

related to a person who was similarly engaged as

that of the respondent No.2 herein. There the

petitioner was appointed by the company as a trade

trainee and the relationship of the petitioner therein

and the management was also governed by similar

terms and conditions as stipulated in the present

contract between the petitioner and the respondent

No.2. Considering the various cases this Court held

that as the petitioner therein had failed to prove and

establish that he was employed in the respondent

company to do any skilled or unskilled manual,

supervisory or clerical work for hire or reward,

therefore he was a trainee and not a workman and

the writ petition was disposed of in terms of the

aforesaid observations”.

(v) Kamal Kumar Vs. J.P.S Malik Presiding

Officer Labour Officer (Delhi High Court, dated

18-5-1998) wherein, it has been held that

“Admittedly in the present case the provisions

of Apprenticeship Act is not applicable. During the

period of training the petitioner was given a stipend

of ` 350. A close examination of the terms and

conditions of the contract entered into between the

petitioner and the respondents leads to the

conclusion that the principal object with which the

parties entered into the agreement of training was

an offer by the employer to the petitioner to have

an opportunity to learn trade or craft to acquire such

knowledge that may be obtained in the course of

training. From the aforesaid terms of the agreement,

it is clear that the petitioner was a mere trainee for

a particular period and for a distinct purpose and the

respondent was not bound to employ him in their

works after the period of training is over.

It, therefore, cannot be said that the petitioner was

a workman of the respondent company, in as much

as, the purpose of engagement of the petitioner was

only to offer him training under the terms and

conditions stipulated above. No wage was paid to the

petitioner as defined within the meaning of wages

under the Industrial Disputes Act. Merely because

some amount was paid to the petitioner as Provident

Fund, it cannot be said that he had become a

workman of the Respondent Company”.

From the above observations of the Hon’ble

High Court and the Hon'ble Supreme Court, it is clear

that an apprentice or trainee cannot fall under

definition of workmen and that therefore the petitioner

being the trainee apprentice cannot raise any industrial

dispute and therefore, he is not entitled for the relief

of reinstatement.

18. Furthermore,

though

the

petitioner

has

received a stipend from the respondent management

even if it is termed as daily wages, he is also failed to

establish that he had been in service continuously for

240 days in the respondent management as a workmen.

In the light of the Judgment reported in 2015-III-LLJ-

337 (P&H), LNIND 2015 PNH 8216, Wherein it has

been held that “Daily Wager-Reinstatement-Industrial

Disputes Act, 1947 (Act 1947), sections 25-G and

25-H-Industrial Tribunal ordered reinstatement of

respondent No. 2-petitioner contends respondent daily

wager cannot be reinstated for failing to complete

requisite number of working days-Whether Sunday can

also be included to calculate days of employment in

case of daily-wager and whether daily-wager is entitled

to reinstatement-Held., in a case of a daily-wager,

Sunday and other holidays are not to be counted

because he is not paid any salary for that day-Workman

has not worked for requisite days and his service is

terminated in violation of section 25-G and 25-H of

Act 1947- Since workman/respondent No. 2 has not

completed requisite days, therefore, he is not entitled

to any compensation as well as reinstatement-Petition

allowed.”

From the above observation of the Hon’ble

High Court, it is clear that the petitioner has not

established that he has completed requisite number of

working days and therefore he is not entitled to any

order of reinstatement as claimed by the petitioner and

therefore it is held that the petitioner has failed to

establish his case and he is not entitled for any relief

as prayed for and therefore, the application filed by the

petitioner is liable to be dismissed.

19. In the result, the petition is dismissed. No cost.

Dictated to the stenographer, transcribed by her,

corrected and pronounced by me in the open Court on

this the 27th day of March, 2017.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Puducherry.

————

List of

petitioner’s witness:

PW.1 — 3-11-2014—K.S. Karthikeyan

List of petitioner’s exhibits:

Ex.Pl—1-5-2000

— Copy of the Apprenticeship

Order.

Ex.P2—1-11-2000 — Copy of the Apprenticeship

Order.

490

LA GAZETTE DE L’ETAT

[23 May 2017

Ex.P3—29-9-2001 — Copy of the advocate

notice.

Ex.P4—9-10-2001 — Copy of the memo issued

to petitioner.

Ex.P5—10-6-2002 — Copy of the order passed

W.P.

No.

20270,

20591 and 19/2002.

Ex.P6—4-1-2008 —

Copy of the order passed

in W.P. No. 2043/2002

and 2044/2002.

Ex.P7—30-4-2012 — Copy of the 2-A petition

filed by the petitioner.

Ex.P8—22-8-2012— Copy of the rejoinder

filed by the petitioner.

Ex.P9—24-6-2013 — Copy of the conciliation

failure report.

List of

respondent’s witness:

RW.1 — 6-1-2016—C. Rajadurai

List of respondent’s exhibit:

Ex.R1 — 1-5-2000—Apprenticeship Order.

G. THANENDRAN,

Presiding Officer,

Industrial Tribunal-cum-Labour Court,

Puducherry.



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