BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14/05/2008
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE P. MURGESEN
WRIT APPEAL (MD) Nos.685 to 687 OF 2007
and
W.P.(MD) NOs.7657, 9711 to 9715 OF 2006 & 9639 OF 2007 M.P.Nos.1 & 2 in respective W.As and W.Ps.
W.A.No.685 of 2007
1. The Management of
Bharat Heavy Electricals Limited,
Rep. by its Chairman and Managing
Director, BHEL Corporate Office,
Siri Fort, New Delhi 110 049.
2. The General Manager,
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014.
3. The Senior Manager / HR
(Recruitment & Systems),
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014. .. Appellants
Vs.
1. S. Srinivasalu
S/o.D. Sriramalu
2. C. Selvaraj
S/o.C. Chinnaiyan
3. K. Jyothikumar
S/o.N. Karunakaran Pillai
4. P. Karunakaran
S/o. Pitchai
5. T. Dhanasekar
S/o.S. Thayumanalingam
6. G. Suriyarao,
S/o.G. Dalayaa
7. K. Rajkumar
S/o.P. Krishnan
8. K. Venkatesan,
S/o.S. Kantharajan
9. V.K. Sureshkumar
S/o.V.G. Krishnamurthy .. Respondents
W.A.No.686 of 2007
#1. The Management of
Bharat Heavy Electricals Limited,
Rep. by its Chairman and Managing
Director, BHEL Corporate Office,
Siri Fort, New Delhi 110 049.
2. The General Manager,
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014.
3. The Senior Manager / HR
(Recruitment & Systems),
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014. .. Appellants
Vs.
$1. A. Ravindran
S/o.A. Alagarswamy
2. A. Kuppuswamy
S/o.Alagappa Chettiar .. Respondents
W.A.No.687 of 2007
#1. The Management of
Bharat Heavy Electricals Limited,
Rep. by its Chairman and Managing
Director, BHEL Corporate Office,
Siri Fort, New Delhi 110 049.
2. The General Manager,
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014.
3. The Senior Manager / HR
(Recruitment & Systems),
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014. .. Appellants
Vs.
$1. V. Pradeep Nalankilli
S/o. Velanganni
2. K. Vijayakumaran
S/o. Krishnasamy .. Respondents
W.P.(MD)No.7657 of 2006
#1. A. Thanupillai
2. S. Mohamed
3. A. Dharmalingam
4. C. James Raj
5. V. Palaniswamy
6. R. Sambu
7. A. Perumal
8. K. Balasubramanian
9. A. Joseph Peter
10. G. Parthiban
11. S.R. Kumar
12. S. Stephen
13. M. Pichaimuthu
14. S. Dhanaraj William
15. M. Thiruvengadam
16. A. Joseph Irudaya Raj
17. V. Edwin .. Petitioners
Vs.
$1. The Personnel Manager,
Bharat Heavy Electricals Limited,
Thiruchirappalli 620 014.
2. The Secretary to Government of India,
Ministry of Labour,
New Delhi. .. Respondents
W.P.(MD)Nos.9711 to 9715 of 2006
#M. Angamuthu
S/o.K. Muthusamy .. Petitioner in WP.9711/2006
M. Shanmugavelku
S/o.A. Maruthiyan .. Petitioner in WP.9712/2006
P. Murugesan
S/o.K. Palaniyandi .. Petitioner in WP.9713/2006
T. Dayalan
S/o.V. Thiyagarajan .. Petitioner in WP.9714/2006 S. Kumaravelu
S/o.V. Sellakannu .. Petitioner in WP.9715/2006 Vs.
$1. The Personnel Manager,
Bharat Heavy Electricals Limited,
Thiruchirappalli 620 014.
2. The Secretary to Government of India,
Ministry of Labour,
New Delhi. .. Respondents in WP.Nos.9711
to 9715 of 2006
W.P.(MD)No.9639 of 2007
#Bharat Heavy Electricals Limited -
Ex Apprentice Association, Trichy
Rep. by its Vice President
V. Balasubramanian .. Petitioner
Vs.
$1. The Management of
Bharat Heavy Electricals Limited,
Rep. by its Chairman and Managing
Director, BHEL Corporate Office,
Siri Fort, New Delhi 110 049.
2. The Executive Director,
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014.
3. The Senior Manager / HR
(Recruitment & Systems),
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014.
4. The General Manager,
Bharat Heavy Electrical Limited,
Tiruchirapalli 620 014. .. Respondents
Appeals filed under Clause 15 of the Letters Patent against the common order dated 12.10.2007 in W.P.(MD)Nos.8675 and 11160 of 2006 and 2655 of 2007.
W.P.Nos.9711 to 9715 of 2006 have been filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus directing the respondents to appoint the petitioners in the post of Fitter / Machinist / Welder trade as Artisan Grade IV in the 1st Respondent Company or in alternative to absorb the petitioners in any other sister concern of the 1st respondent unit.
W.P.No.9639 of 2007 filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus to call for the records relating to the Employment Notice No.280 issued by Bharath Heavy Electricals Limited, Unit Tiruchirapalli and published in Daily Thanthi dated 3.11.2007 and quash the same and consequently direct the respondents to grant appointment to the members of the Petitioner Society in the permanent regular services of the respondent company in the post of Artisans notified under Employment No.280 issued by Bharath Heavy Electricals Limited, Unit Tiruchirapalli and published in Daily Thanthi dated 3.11.2007.
!For Appellants and ... Mr.K. Jayaraman
Respondents in WPs
^For Respondents ... Mr.V. Prakash
in WAs Senior Counsel for
Mrs. Lakshmi Gopinathan
For Petitioners ... Mr.G.R. Swaminathan
:COMMON JUDGMENT
These writ appeals are directed against the common order passed by the learned single Judge in several writ petitions. Such writ petitions were filed seeking for issuance of writ of certiorarified Mandamus / Mandamus directing the present appellant Bharat Heavy Electricals Limited, hereinafter referred to as "BHEL" for convenience, to grant appointment to the writ petitioners on regular basis.
1.1 Some writ petitions have been tagged along with such appeals as the questions raised in the writ petitions appear to be similar to those raised in the writ appeals. All such writ petitions have been filed either by the individuals or by the Association.
2. The basic averments in the writ petitions are to the effect that the Apprentices had obtained National Trade Certificate under various trades and undergone Apprenticeship training under BHEL and had also been given casual employment on daily wages basis from time to time. Since BHEL was making efforts to recruit various persons as Fitter, Welder, etc., without regularly employing the apprentices, the writ petitions were filed. In all such writ petitions it has been emphasised that under BHEL there used to be a long followed practice of absorbing the apprentices as regular employees and BHEL had considered the previous batches and had given employment and, therefore, there is no justification to deny such employment to the duly qualified persons, who have already completed the apprenticeship training in the BHEL. It was contended in such writ petition that BHEL had given employment to similarly placed persons in the office at Ranipet, but BHEL was not giving such employment to the apprentices in the office at Tiruchirapalli. Even though some of the workers had made complaint before the Assistant Commissioner of Labour, Tiruchirapalli, there was no improvement in the situation.
3. In the counter affidavit filed on behalf of the BHEL, it was indicated that the petitioners had merely undergone the Apprenticeship training, but there was no contract that they would be given employment and, therefore, the cases of such persons would be considered along with other eligible candidates when recruitment are made and only preference would be given to those who had completed Apprenticeship training, if other things are equal.
4. Learned single Judge while noticing the difference between Section 22(1) and 22(2) of the Apprentices Act, 1957, concluded as follows:- "12. In the present case, the policy for recruitment makes the Departmental candidate possessing specific requirements as a source of recruitment and also paragraphs 4.4 and 4.5 provide for induction to candidates having satisfactorily completed their apprenticeship training. Further, in the Ranipet Unit, similarly placed apprentices have been taken for employment. The respondents, being the same company, cannot make a distinction between the two units. Some of the petitioners have also been employed as casuals after their apprenticeship training. Therefore, the decision referred to by the learned counsel for the respondents has no application to the facts of the cases on hand. On the other hand, the issue raised in these petitions has been squarely answered by this Court in G. Ravikumar's case (cited supra).
13. In the light of the above, the writ petitions shall stand allowed and the respondents are directed to implement the order within a period of the four weeks from the date of receipt of a copy of this order. ..."
5. Learned counsel for the BHEL (appellant in various appeals and the respondent in the pending writ petitions) has contended that while considering such aspects, the basic difference between Section 22(1) and Section 22(2) of the Apprentices Act has to be borne in mind. He has invited our attention to several decisions on such aspect.
6. The learned counsels appearing for the respondent in the writ appealsd and the petitioners in the connected undisposed of writ petitions have supported the order of the learned single Judge.
7. Section 22(1) and 22(2) of the Apprentices Act being relevant, are quoted hereunder :-
22. Offer and acceptance of employment - (1) It shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer.
(2) Notwithstanding anything in sub-section (1), where there is a condition in a contract of apprenticeship that the apprentice shall, after the successful completion of the apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract."
8. In (1985) 1 SCC 130 (NARENDER KUMAR AND OTHERS v. STATE OF PUNJAB AND OTHERS), the appellants were engaged as apprentices. However, when employment notice was issued, such apprentices claimed that they should be absorbed in accordance with the instruction in respect of 50% of the vacancies relating to direct recruitment. Such writ petition was dismissed on the ground that letters of appointment issued to such persons did not contain any assurance or undertaking that they will be absorbed in the Punjab State Electricity Board. While considering the appeal, the Supreme Court observed :- "4.This sub-section leaves no doubt that, despite the provision contained in sub-section (1), the employer is under an obligation to offer suitable employment to the apprentice if the contract of apprenticeship contains a condition that the apprentice shall serve the employer after the successful completion of the training. Indeed, when such an offer is made, the apprentice on his part is bound to serve the employer in the capacity in which he was working as an apprentice.
. . .
5. The question which, therefore, arises for consideration is whether there is a condition in the contract of apprenticeship of the appellants that they shall serve the employer after the successful completion of their apprenticeship training. In this behalf, para 2 of the letters of appointment under which the appellants were appointed as apprentices is important. It reads thus:
"It should be clearly understood that you shall be on stipendary training for a period of one year and on successful completion of this training, you shall be absorbed in the department if there are vacancies, without any commitment subject to the stipulation that during the waiting period after one year's apprenticeship, you will not be paid any remuneration." . . .
"9. We are also of the opinion that, apart from the implications arising out of Section 22(2) of the Apprentices Act, para 2 of the letters of appointment creates a binding obligation upon the employer to absorb the apprentices in the department on the successful completion of the training period, provided there is a vacancy in which the apprentices can be appointed. It would be contrary both to the letter and spirit of para 2 of the letters of appointment to hold that, even if there is a vacancy in which an apprentice can be appointed after the successful completion of his training, the employer is free not to appoint the apprentice and fill that vacancy by appointing an outsider. Such a reading of the assurance contained in para 2 will also frustrate the very object of the provision made by the Legislature in Section 22(2) of the Act. The object of that provision is to guarantee, to the extent of the existence of vacancies, that the apprentices will not be rendered jobless after they complete their training."
9. In AIR 1995 SC 1115 (U.P. STATE ROAD TRANSPORT CORPORATION AND ANOTHER v. U.P. PARIVAHAN NIGAM SHISHUKHS BEROZGAR SANGH AND OTHERS), it was observed :- "11. The aforesaid being the position, it would not be just and proper to go merely by what has been stated in Section 22(1) of the Act, or for that matter, in the model contract form. What is indeed required is to see that the nation gets the benefit of time, money and energy spent on the trainees, which would be so when they are employed in preference to non-trained direct recruits. This would also meet the legitimate expectations of the trainees.
12. In the background of what has been noted above, we state that the following would be kept in mind while dealing with the claim of trainees to get employment after successful completion of their training: (1) Other things being equal, a trained apprentice should be given preference over direct recruits.
(2) For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India v. N. Hargopal1 would permit this.
(3) If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the service rule concerned. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given.
(4) The training institute concerned would maintain a list of the persons trained yearwise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior."
10. Subsequently, in 2007(5) MLJ 862 (G. RAVIKUMAR v. CHAIRMAN AND D.G.O.F., ORDNANCE FACTORY BOARD, KOLKATTA AND OTHERS) , the learned single Judge by referring to the above two decisions of the Supreme Court had occasion to observe as follows:-
"7. The issue decided by the Hon'ble Supreme Court both in U.P. State Road Transport Corporation and Tamil Nadu Electricity Board's case (supra) arose out of the situation where Section 22(1) will come into operation and where there is no guarantee for any employment. If there is a guarantee for employment after the training period, then certainly to the exclusion of any outsider, the trained apprentices can be preferred. ..."
11. Learned counsel appearing for the appellants has placed particular reliance upon the decision reported in (2005) 2 SCC 396 = 2005(1) LLJ 870 (CHAIRMAN/M.D., MAHANADI COAL FIELDS LTD. AND OTHERS v. SADASHIP BEHERA AND OTHERS), wherein it was observed :-
"6. There is another aspect of the matter which deserves consideration. The whole stand of the writ petitioner (Respondent 1 in this appeal) was that he had undergone apprenticeship training with Mahanadi Coalfields Ltd. and, therefore, he was entitled to be appointed on the post of welder. The Apprentices Act was enacted in the year 1961 and as the preamble shows that it is an Act to provide for the regulation and control of training of apprentices and for matters connected therewith. Section 2(aa) defines an "apprentice" and it means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship. Section 2(aaa) defines "apprenticeship training" and it means a course of training in any industry or establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices. Section 4 provides that no person shall be engaged as an apprentice to undergo apprenticeship training unless he has entered into a contract of apprenticeship with the employer and the training shall be deemed to have commenced on the date on which the contract of apprenticeship has been entered into. It further provides that every such contract shall be sent by the employer to the Apprenticeship Adviser for registration. Sections 6 and 7 lay down that the period of apprenticeship training shall be specified in the contract of apprenticeship and the same shall terminate on the expiry of the period of apprenticeship. Rule 6 of the Apprenticeship Rules, 1991 (hereinafter referred to as "the Rules") mandates that the contract shall be sent by the employer for registration within three months of date on which it was signed. Sub-rule (3) of Rule 6 provides that the obligation of the employer and that of the trade apprentice shall be as specified in Schedule V or VI, as the case may be. Clause (10) of Schedule V which relates to the obligation of the employer reads as follows:
"(10) It shall not be obligatory on the part of the employer to offer any employment to the apprentice on completion of period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer."
7. These provisions show that apprentice is a person who is undergoing a training in pursuance of a contract of apprenticeship duly registered with the Apprenticeship Adviser and the employer who is imparting training is under no obligation to offer any employment to such a person. The legislature has made the aforesaid position clear by making a specific provision in this regard namely Section 22 of the Act and sub-section (1) thereof lays down that it shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training. Sub- section (2) however provides that notwithstanding anything in sub-section (1) where there is a condition in a contract of apprenticeship that an apprentice shall, after successful completion of apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract. Thus the provisions of the Act and the Rules made thereunder show that in absence of any condition in the contract which is entered into between the employer and the apprentice at the time of commencement of his apprenticeship training and which is registered with the Apprenticeship Adviser to the effect that the apprentice shall serve the employer, an apprentice cannot claim any right to get an employment on successful completion of his training. It is not the case of Respondent 1 that in the contract of apprenticeship there was any condition that after completion of training he would serve the employer and in absence of such a condition, the employer namely the appellants are not bound to offer any employment to them. In the absence of any legal right inhering in the writ petitioner (Respondent 1 herein) no writ of mandamus could be issued commanding the appellants to give an appointment to him on the post of welder."
12. In W.A.(MD) No.316 of 2007 dated 14.12. 2007 (M. SABARINATHAN v. THE GENERAL MANAGER, ORDNANCE FACTORY, MINISTRY OF DEFENCE & 2 OTHERS) the writ petitioner, who was an apprentice, has sought for a direction that without publishing any public advertisement, apprentices should be given employment, which was rejected by the learned single Judge. While dealing with the appeal, the Division Bench observed :-
"13. On a careful reading of the decisions of the Apex Court, cited by both the counsel, and also the records, we deem it appropriate to follow the principles laid down in U.P. State Road Transport Corporation and another v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and others, 1995 (2) SCC 1, and Excise Superintendent, Malkapatnam, v. K.B.N. Visweswara Rao, 1996(6) Supreme Court cases 216, and hold that the requisitioning department should call for the list of eligible candidates from employment exchange and the apprentice department or undertaking or establishment shall invite candidates by publication in newspapers and other media, and then consider the cases of all the candidates, who have applied, and, in the selection process, other things being equal, trained apprentices shall be given preference. The said procedure shall be adopted on future occasions and the appointments made hitherto shall stand unchanged."
It is obvious that the Division Bench proceeded on the footing that Section 22(1) of the Apprentices Act was applicable rather than Section 22(2) and on that basis the Division Bench concluded that the names of the eligible candidates should be called for from the Employment Exchange, an advertisement should be published in the newspaper and other things being equal, the apprentices shall be given preference as envisaged under Section 22(1).
13. In view of the above decisions regarding the scope of Section 22 of the Apprentices Act, 1957, the law is now well settled that in the absence of any special contract, the provisions of Section 22(1) would be applicable which means that even if a person has completed the apprenticeship training under a particular organisation, he has got no right to claim employment. However, as and when the selection takes place, he is entitled to get a preference, other things being equal. On the other hand, if there is a contract, Section 22(2) would be applicable and the person who has completed apprenticeship training under a particular organisation has right to be employed if and when the vacancy arises and similarly he has also a corresponding obligation to join if and when the organisation calls upon such apprentices to join.
14. In the light of the above position of law, the facts are to be examined.
15. Learned counsel appearing for the writ petitioners have submitted that in view of the fact that all these years the BHEL had been following the practice of employing the apprentices and has also entered into a settlement in respect of BHEL at Ranipet, it must be taken that apprentices are required to be employed as and when the vacancies arise.
16. Learned counsel for the respondent - Management, on the other hand, brought to our notice a model contract of apprenticeship training and contended that in such contract it has been made clear that only a training is offered and there is no guarantee of employment after such training. These contentions raised by both the parties, require careful consideration.
17. The respondents in the appeals and the petitioners in the writ petitions had completed their apprenticeship long back (at least a decade and a half and even earlier). The Management has produced before this Court in its typed set a model form of contract of Apprenticeship training to bolster his claim that Section 22(1) of the Apprentices Act is applicable rather than Section 22(2). The model form, which has been produced by the Management, also contains an enclosure where there is a reference to the main provisions of the apprenticeship rules relating to contract of apprentices with training. Clause 4 of the Annexures, which is part of the contract of apprenticeship training (available at Page No.5 to 8 of the typed set produced in the appeal) indicates that it shall not be obligatory on the part of the employer to offer any employment in his establishment nor shall it be obligatory on the part of the Apprentice to accept an employment under the employer. If this model form could be considered as the contract of apprenticeship training, obviously the Management would be justified in its challenge to the order of the learned single Judge inasmuch clause 4 of the document clearly excludes any special contract and makes it clear that it shall not be obligatory on the part of the employer to offer any employment.
18. It is to be noted that the Management has not bothered to file the actual contract of apprenticeship training entered with the concerned candidate. It is of course true that the writ petitioners have also not produced the copy of the contract relating to their apprenticeship training. However, between the two, BHEL being a Public Sector Corporation is expected to maintain its registers and documents in a more organised manner as compared to an artisan, who had completed his apprenticeship long back. Moreover, certain genuine doubts crop up relating to applicability of such model form of Apprenticeship Training during the relevant period. This is so because, in the first page of such contract of Apprenticeship Training produced by the Management, it has been indicated in Serial No.5 that the date of execution of the contract is 12th October, 2006. Similarly, there is a reference to the Apprenticeship Rules, 1992 regarding payment of stipend. It is therefore extremely doubtful whether such a form was at all applicable before 1992. Since the Management was in a better position to produce the original contract relating to apprenticeship training, an adverse inference is liable to be drawn against such management. At any rate, from such document it is difficult to accept the contention of the Management that Section 22(1) was applicable rather than Section 22(2). For coming to any such conclusion as to whether Section 22(1) or 22(2) is to be applied, one has to fall back upon other surrounding circumstances to find out the real nature of the contract.
19. For the aforesaid purpose, the writ petitioners have referred to the employment policy of the BHEL which has been extracted by the learned single Judge in the judgment under challenge. In paragraph 6 of the judgment, learned single Judge has extracted para 4.4 and 4.5 as well as 5 of the recruitment policy. Paras 4.4 and 4.5 indicate that "Induction in grade B-III is normally by absorption of Commercial Apprentices on satisfactory completion of their apprenticeship under the Apprentices Act".
19.1 The above, to some extent, indicates that Section 22(2) of the Apprentices Act would be applicable rather than Section 22(1). If one reads the reply of the Management regarding the representation made by the temporary workmen for regularisation of their services, it is apparent that hitherto (by the date of such reply) the apprentices of 26th batch had been absorbed and the apprentices in 27th batch had to wait for their turn. It is also apparent that some apprentices of 27th batch had also been employed on regular basis. These materials also go to a large extent to support the claim of the petitioners. From the policy of employment as well as the procedure hitherto followed, it is apparent that the employment was being given to those apprentices who had obtained their apprenticeship certificate under BHEL.
20. In addition to the above, the importance of the settlement under Section 12 of the Industrial Disputes Act between BHEL and the workmen at Ranipet, which supports the conclusion that the apprentices had a right of being employed against the vacancies occurring, cannot be minimized. It is of course true, as contended by the learned counsel for the appellants, that the establishment at Ranipet is different from the establishment at Tiruchirapalli. However, the very fact that the very same public sector organisation had entered into a settlement in respect of similarly situated persons at Ranipet is clearly indicative of the fact that after completion of the apprenticeship, such persons had a right of getting employment or at least legitimate expectation of employment.
21. Apparently to contradict the contents of the employment policy regarding the employment of apprentices, the Management has produced in the typed set of papers a new recruitment policy, which indicates that as per the mode of recruitment as contained in paragraph 5, advertisement has to be made. This document containing such policy, which was issued only on 14.8.2007, much after the impugned employment notice was issued in June, 2006, cannot have the effect of denying the right of apprentices.
21. For the aforesaid reasons, we do not find any perceptible error to interfere with the order passed by the learned single Judge. The writ appeals are accordingly dismissed. Since the questions raised in the writ petitions are covered by the decision of the learned single Judge, such writ petitions are ordered in the same terms as in W.P.(MD)Nos.8675 & 11160 of 2006 and 2655 of 2007 disposed of on 12.10.2007, which is confirmed by this judgment. No costs. Consequently, the connected miscellaneous petitions are closed.