R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner Rama Kant Dwivedi seeks a writ, order or direction in the nature of certiorari calling for the record of the case and to quash the award dated 26th February, 1998, passed by the Industrial Tribunal (I), U.P., Allahabad, respondent No. 1, said to have been communicated to the petitioner vide letter dated 28th August, 1998, filed as Annexure-6 to the writ petition, and other consequential reliefs.
2. Briefly stated, the facts giving rise to the present writ petition are as follows :
The petitioner claims to have been appointed as a Stenographer in the establishment of the G.E.C. Alsthom India Limited, Naini, Allahabad, respondent No. 2, on 22nd March, 1992. His services came to be terminated vide letter dated 9th May, 1995, with effect from 13th May, 1995. According to him, one Arshad Ali was appointed as a Welder (Trainee) by the respondent No. 2 whose services were also terminated on 20th December, 1994. Arshad Ali raised an industrial dispute which was referred to the Industrial Tribunal, Allahabad, respondent No. 1, and registered as Adjudication Case No. 93 of 1994. The petitioner also raised an industrial dispute which has been referred to the Industrial Tribunal, Allahabad and registered as Adjudication Case No. 57 of 1996. Before the Industrial Tribunal, both the parties filed the written statement. Documentary evidence was also filed by the parties. The Industrial Tribunal, on appreciation of evidence and material on record, came to the conclusion that the petitioner was appointed as a trainee and he did not come within the purview of 'workman' and, therefore, the provisions of Section 6N of the U. P. Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") are not applicable and the retrenchment is not illegal. However, in the case of Arshad Ali, the Tribunal had held the termination to be illegal and had directed for reinstatement with all consequential benefits which has been upheld by this Court.
3. I have heard Sri Suresh Singh, learned counsel holding the brief of Sri Sanjay Sharma, on behalf of the petitioner, and Sri V. R. Agrawal, learned senior counsel, assisted by Sri Vivek Ratan, on behalf of the respondent No. 2.
4. The learned counsel for the petitioner submitted that even though in the appointment letter the respondent No. 2 had mentioned the appointment of the petitioner as a Trainee but the nature of work which the petitioner was required to do, clearly made him fall under the category of the workman and therefore, the provision of the Act was applicable. He further submitted that the petitioner was covered under the Employees State Insurance Act, 1948, as also under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, as the amount of his contribution towards the Employees State Insurance and the Provident Fund was being deducted by the respondent No. 2. He submitted that the nature of employment of a person is the determinative factor for considering as to whether such a person is a workman or not and mere label or wording in the appointment letter issued by the employer would not have any effect. In support thereof, he relied upon the following decisions :
(i) Dharangadhara Chemical Works Ltd. v. State of Saurashtra and Ors., AIR 1957 SC 264 ;
(ii) Workmen of the Food Corporation of India v. Food Corporation of India, AIR 1985 SC 670 ;
(iii) S.K. Maini v. Corona Sahu Company Limited and Ors., AIR 1994 SC 1824 ; and
(iv) Reptakos Brett and Co. v. Labour Court (Vth), Kanpur, and Ors., 1999 (81) FLR 222.
5. He further submitted that even an apprentice is covered under the provisions of the 'workman', as defined in the Act and, therefore, the provisions of Section 6N of the Act ought to have been complied with before retrenching the petitioner. In support of his submission, he relied upon the following decisions :
(ii) Karuna Shankar Tripathi and Ors. v. State of U. P. and Ors., 1992 (65) FLR 203 ;
(iii) Ram Dular Paswan and Ors. v. P.O., Labour Court, Bokaro Steel City and Ors., 1998 (80) FLR 399 ; and
(iv) U. P. State Electricity Board and Anr. v. Presiding Officer, Labour Court, IVth, U. P., Kanpur and Anr., Civil Misc. Writ Petition No. 13481 of 1999, decided on 15th July, 2003.
6. He further submitted that the Industrial Tribunal ought to have confined itself to the dispute referred to it for adjudication and could not have gone beyond the reference. According to him, in the present case the dispute which was referred for adjudication to the Industrial Tribunal, was as to whether the termination of the services of the petitioner with effect from 13th May, 1995, is illegal or not and the relief, if any, which he is entitled? According to him, the Industrial Tribunal had gone beyond the scope of the reference by holding that the petitioner is a trainee and the employers cannot be asked to create a post or keep a person unless they require such person. There should be a post and the requirement of a trainee who had taken the training in the organisation, and he cannot compel the establishment to employ him as a regular workman. In support of the aforesaid submission, he relied upon the following decisions :
(ii) Factory Mazdoor Panchayat v. Perfect Pottery Co. Ltd. and Anr., AIR 1979 SC 1356 ; and
(iii) M/s. Firestone Tyre and Rubber Co. of India (P.) Ltd. v. Workmen Employed represented by Firestone Tyre Employees' Union, AIR 1981 SC 1626.
7. Sri Singh further submitted that in the case of Arshad Ali who was appointed as a Welder (Trainee) by the respondent No. 2 and whose services was terminated on 20th December, 1994, the Industrial Tribunal, Allahabad, had held him to be a workman and had further held that the retrenchment is illegal. Against the said award, the respondent No. 2, i.e., the employer, approached this Court by filing Civil Misc. Writ Petition No. 34469 of 1998 which had been dismissed by this Court vide judgment and order dated 3rd July, 2003. He, thus, submitted that the Industrial Tribunal had committed a manifest error in holding the petitioner to be a trainee and not a workman and the retrenchment to be legal. According to him, similar treatment ought to have been given to the petitioner.
8. Sri Vijay Ratan Agrawal, learned senior counsel, on the other hand, submitted that the petitioner, as established clearly from the letter of appointment dated 22nd March. 1992, was appointed as a trainee in the establishment of the respondent No. 2. His term was extended from time to time on his request and vide order dated 9th May, 1995, when his term was going to expire on 12th May, 1995, he was informed that he may collect his dues as he will be completing his training on 12th May. 1995. According to him, there was no retrenchment in the present case and the petitioner ceased to be under training after the expiry of his term on 12th May. 1995. He further submitted that the petitioner was not appointed under the provisions of the Apprentice Act, 1961, or under any scheme sponsored or approved by the State Government and, therefore, by any stretch of imagination he cannot be treated to be a workman falling under the provisions of the Act. According to him, merely because the provident fund and the employees state insurance contribution had been deducted from the emolument paid to the petitioner, he would not become a workman under the provisions of the Act. In support of his submission, he relied upon the following decisions :
(i)M/s. U. P. State Spinning Mills Co. (No. II) Ltd. v. Labour Court, Allahabad and Anr., 1997 (75) FLR 237 ;
(ii) U. P. State Electricity Board, Kanpur v. Smt. Suman and Anr., Civil Misc. Writ Petition No. 3574 of 1997, decided on 13th March, 1997 ;
(iii) Factory Manager, CIMMCO Wagon Factor etc. v. Virendra Kumar Sharma and Anr., etc., JT 2000 (8) SC 229 ;
(iv) U. P. State Electricity Board v. Ashok Kumar Shukla and Anr., 2003 (3) AWC 2266 : 2003 (97) FLR 822 ;
(v) M/s. G.E.C. of India Ltd., Naini, Allahabad v. Its Workman, Prakash Narain Pandey, 1991 (62) FLR 554 (Industrial Tribunal, I, U. P., Allahabad).
9. Having heard the learned counsel for the parties, I find that the petitioner was appointed as a trainee. In the appointment letter dated 22nd March, 1992, issued by the respondent No. 2, it has been specifically provided that they are pleased to offer training to him for a period of six months with effect from 26th March. 1992, on an all inclusive stipend of Rs. 750.00 p.m. during the period of training, which was to be subject to the provisions of the certified standing orders of the company. The term of the training period was extended from time to time, the last being upto 12th May, 1995. He was undergoing training as a Typist/Stenographer (Hindi and English). Even though it is claimed that the officers of the respondent No. 2 had recommended for granting a permanent appointment in the pay scale of Rs. 190.00 p.m. Staff Grade III plus dearness allowances, there is nothing on record to show that the petitioner was given any permanent appointment.
10. In the case of Dharangadhara Chemical Works Ltd. (supra), the Hon'ble Supreme Court has held as follows :
"14. The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work, or to borrow the words of Lord Uthwatt at page 23 in Mersey Docks and Harbour Board v. Coggins and Griffith (Leverpool) Ltd. and Anr., (1947) 1 AC 1, 23. "The proper lest is whether or not the hirer had authority to control the manner of execution of the act in question".
16. The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer or to use the words of Fletcher Moulton, L.J., at page 549 in Simmons v. Health Laundry Co., (1910) 1 KB 543, 549, 550 :
"In my opinion it is impossible to lay down any rule of law distinguishing the one from the other. It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the ground for holding it to be a contract of service and similarly, the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service."
11. In the case of the Food Corporation of India (supra), the Hon'ble Supreme Court has held as follows :
"The expression 'employed' has at least two known connotations but as used in the definition, the context would indicate that it is used in the sense of a relationship brought about by express or implied contract of service for which he is engaged by the employer and the latter agrees to pay him in cash or kind as agreed between them or statutorily prescribed. It discloses a relationship of command and obedience. The essential condition of a person being a workman within the terms of the definition is that he should be employed to do the work in that industry and that there should be, in other words, an employment of his by the employer and that there should be a relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed there can be no question of his being a 'workman' within the definition of the term as contained in the Act."
12. In the case of S. K. Maini (supra) the Hon'ble Supreme Court has held as follows :
"It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the nature of duties of the concerned employee and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do."
13. In the case of M/s. Reptakos Brett and Co. (supra) this Court has held as follows :
"The nature of employment is not judged by the terms of the letter issued by the employer but by the nature of duty performed and if contractual employment is resorted to as a mechanism to frustrate the claim of the workman to become regular or permanent against a job which was continuous or the nature of duty is such that colour of contractual agreement is given to take it out from the provisions of the Act, such an agreement cannot be regarded as fair or bona fide. The periodical renewals if are made to avoid regular status to workman they are to be ignored as such. A practice which has been adopted as a camouflage to circumvent the provisions of the Act which confers the benefit of permanency of workers who worked continuously for a period of more than 240 days cannot be allowed to be availed of by the employers."
14. Thus, it is well established that the nature of employment has to be seen for determining as to whether a person is a workman or not and not the wordings mentioned in the appointment letter, yet, in the present case, I find that the petitioner has failed to establish the duties which he was assigned and the work which he was doing was that of a regular workman. From the record it is absolutely clear that the petitioner was only appointed as a trainee or, in other words, as an apprentice. The Hon'ble Supreme Court in the case of Employees' State Insurance Corporation (supra) has held that in ordinary acceptation of the term 'apprentice', a relationship of master and servant is not established under the law. It has held as follows :
"5. The word 'apprentice' is not defined in the Act, nor is it specifically referred to in the definition of 'employee' by either inclusion or exclusion. We are unable to hold that in ordinary acceptation of the term apprentice a relationship of master and servant is established under the law. Even etymologically, as a matter of pure English, "to serve apprenticeship means to undergo the training of an apprentice" (Chamber's Dictionary). According to the Shorter Oxford English Dictionary apprentice is "a learner of a craft ; one who is bound by legal agreement to serve an employer for a period of years, with a view' to learn some handicraft, trade, etc. in which the employer is reciprocally bound to instruct him." Stroud's Judicial Dictionary puts it thus:
"In legal acceptation, an apprentice is a person bound to another for the purpose of learning his trade, or calling ; the contract being of that nature that the master teaches and the other serves the master with the intention of learning."
While dealing with the nature of the relationship of master and servant in comparison with other relationships in Halsbury's Laws of England, Third Edition, Volume 25, the following passage appears at para 877, pages 451-452 :
"By a contract of apprenticeship a person is bound to another for the purpose of learning a trade or calling, the apprentice undertaking to service the master for the purpose of being taught, and the master undertaking to teach the apprentice. Where teaching on the part of the master or learning on the part of the other person is not the primary but only an incidental object, the contract is one of service rather than of apprenticeship ; but, if the right of receiving instruction exists, a contract does not become one of service because, to some extent, the person to whom it refers does the kind of work, that is done by a servant or because he receives pecuniary remuneration for his work."
6. The heart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer. Such a person remains a learner and is not an employee. An examination of the provisions of the entire agreement leads us to the conclusion that the principal object with which the parties enter into an agreement of apprenticeship was offering by the employer an opportunity to learn the trade or craft and the other person to acquire such theoretical or practical knowledge that may be obtained in the course of the training. This is the primary feature that is obvious in the agreement."
15. Thus, the petitioner who was appointed as a trainee only, as has been established from the record, cannot be treated as a workman as no relationship of master and servant exists.
16. So far as the question as to whether the apprentice comes within the definition of 'workman' under the Act is concerned, it may be mentioned here that Section 2 (a) of the Act defines 'apprentice' to mean a person employed in an industry for the purpose of training therein in accordance with a scheme prepared in that behalf and approved by the State Government. Under Section 2 (z) of the Act, the word 'workman' has been defined to include an apprentice also.
17. Sections 2 (a) and 2 (z) of the Act are reproduced below :
"2. Definitions.--(a) 'Apprentice' means a person employed in an industry for the purpose of training therein in accordance with a scheme prepared in that behalf and approved by the State Government ;"
"(z) 'Workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person :
(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934 ; or
(ii) who is employed in the police service or as an officer or other employee of a prison ; or
(iii) who is employed mainly in a managerial or administrative capacity ;
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem, or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
18. From a reading of the aforesaid provisions, it is clear that in order that an apprentice, if he is to be treated as a workman, has to establish that he has been employed in the concerned industry for the purpose of training in accordance with a scheme prepared in that behalf and approved by the State Government.
19. This Court in the case of Karuna Shankar Tripathi (supra) has held as follows :
"Thus, the main question which crops up for decision in this writ petition is that if an apprentice has been appointed under the provisions of Apprentices Act, 1961, then he cannot be treated as workman and after the completion of the training period he is not entitled to be retained in service and the provisions of Industrial Disputes Act would not be attracted to him. But if an apprentice is not appointed in accordance with the provisions of Apprentices Act then he would be an apprentice in accordance with the general terms and would come within the ambit and scope of the definition of 'workman' contained in Section 2 (z) of the U. P. Industrial Disputes Act."
20. In the case of Ram Dular Paswan (supra), the Patna High Court has held as follows :
"The apprentices are mere trainees who are given training in specified trade. They are not employees of the person, who has engaged them. So long as they act as trainees they will be governed by the Apprentices Act and the I.D. Act cannot be applied to them. But if an apprentice does "any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward", he will be a workman to whom I.D. Act will apply and, therefore, will not be governed by the Apprentices Act, even if he was enrolled as an apprentice trainee. It is not the label a person has, but the type of work which he does, which is relevant criteria for determining as to whether he is or is not a workman."
21. In the case of M/s. U. P. State Spinning Mills Co. (supra) this Court has held as follows :
"8. Since apprentice has been defined in Section 2 (a), reference of apprentice in Section 2 (z) cannot have any other meaning than that has been ascribed in Section 2 (a). In view of the definition of apprentice given in the Act the apprentice included in the definition of workman cannot be interpreted to mean an apprentice other than apprentice defined in Section 2 (a). If any such interpretation is made in that event, it would be contrary to the scheme of the U. P Act itself. Now that the definition of workman in the Central Act includes apprentice but the word 'apprentice' has not been defined in the said Act, therefore, though an apprentice who may not be an apprentice as defined in Section 2 (a) may be included in the definition of workman as defined in Section 2(s) of the Central Act. But in cases where U. P. Act applies, such an interpretation cannot be given because of the maxim "Generalia Specialibus non-derogant". Inasmuch as a general statute must yield to a special statue. The U. P. Act is a special statute applicable only to U. P. and has been enacted under the concurrent legislative power provided under the Constitution would prevail upon the general definition. Therefore, the apprentice included in the definition of 'workman' in Section 2 (z) of the U. P. Act includes apprentice defined in Section 2 (a) of the said Act and not otherwise."
22. In the case of Civil Misc. Writ Petition No. 3574 of 1997, U. P. State Electricity Board, Kanpur, decided on 13th March, 1997 (supra), this Court followed the decision given in the case of the U. P. State Spinning Mills Limited (supra), and has held that it is not all apprentice who will be workmen under the Act but only those apprentices who are employed in an industry for training in accordance with the scheme prepared by the State Government under Section 2 (a) of the Act.
23. In the case of Factory Manager, CIMMCO Wagon Factory Etc. (supra), the Hon'ble Supreme Court has held as follows :
"12. Assuming that the respondent was asked to work in the factory in anticipation of securing employment, that too by an officer who was not competent to give appointment, did not make the respondent workman or a regular employee of the appellant company. We have no hesitation to say that the Division Bench was not right in raising presumption under Section 103 of the Act in order to say that the respondent was a workman in relation to an industrial dispute for the purposes of any proceedings under the Industrial Disputes Act, 1947."
24. In the case of the U. P. State Electricity Board v. Ashok Kumar Shukla (supra), this Court held that if a person has been engaged for a period of three years and was getting stipend and did not raise an issue during the period of his engagement, he has acquiesced and cannot be permitted to raise any dispute regarding his status and is disentitled for any relief before the labour court.
25. In the case of Civil Misc. Writ Petition No. 13481 of 1999, U. P. State Electricity Board, decided on 15th July, 2003 (supra), this Court after considering the various decisions on the subject, had summed up the position regarding apprentice as follows :
"From the various decisions, referred to above, the following propositions of law appear to be well-settled :
(i) If a person has been engaged as an Apprentice under the provisions of the 1961 Act, he would not be treated as a workman in view of the provisions of Section 18 of the 1961 Act and he would only be treated as trainee ;
(ii) Such a person would not be treated as a workman under the provisions of Section 2 (z) of the U. P. Act as he is only a trainee and has not been employed to do any manual, unskilled, skilled, technical operation, clerical or supervisory for hire or reward ;
(iii) If a person is not an Apprentice under the provisions of the 1961 Act, so far the State of U. P. is concerned, in order to be treated as a workman, as defined under Section 2 (z) of the U. P. Act, he has to fulfil the requirement of Section 2 (a) of the U. P. Act, which defines 'Apprentice', i.e., he is to be employed' in an industry for the purpose of training therein in accordance with a scheme prepared in that behalf and approved by the State Government ;
(iv) Even if a contract of Apprenticeship entered into between the person and the employer has not been registered, as required under Section 4(4) of the 1961 Act, it would be treated as a binding contract and such a person would fall under the provisions of the 1961 Act."
26. Applying the principle laid down in the aforesaid decisions to the facts of the present case, I find that the petitioner has not been appointed as an apprentice/trainee under any scheme approved by the State Government. Thus, he cannot be treated as an apprentice falling under the definition of the word 'workman' as given in the Act and, therefore, the provisions of Section 6N of the Act would not be applicable.
27. The petitioner cannot derive any advantage from the fact that his share of contribution of provident fund and Employees State Insurance was deducted from his emoluments inasmuch as under Section 2(8) of the Employees' State Insurance Act, 1948 and under Section 2(f) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the word "employee" includes any person engaged as an apprentice not being an apprentice engaged under the Apprentices Act, 1961. The petitioner who was engaged as an apprentice/trainee not under the Apprentices Act, 1961 was, thus, rightly covered under the aforementioned two Acts.
28. So far as the question regarding the scope of reference is concerned, I find that the following dispute was referred for adjudication before the Industrial Tribunal :
"Kya Sewayojako Dwara apne shramik Rama Kant Dwivedi putra Sri Kare Deen Dwivedi ki sewayen dinank 13.5.1995 se samapt ker diya Jana uchit tatha/athawa vaidhanik hai? Yadi nahi to sambandhit shramik kya hitlabh/anutosh (Relief) pane ka adhikari hai evam anya kis vivran sahit.?"
29. As held by the Hon'ble Supreme Court in the case of the Calcutta Electric Supply Corporation Ltd., Pottery Mazdoor Panchayat and M/s. Firestone Tyre and Rubber Co. (supra), the labour court cannot travel beyond the scope of reference. The question still is as to whether in the present case the Industrial Tribunal has exceeded its jurisdiction or has travelled beyond the scope of the reference or not. Before the Industrial Tribunal the question was as to whether the termination of the petitioner's services with effect from 13th May, 1995, was justified and legal or not. The Industrial Tribunal has on the material and evidence on record, found that the refusal to extend the period of training cannot be termed as illegal retrenchment. The Industrial Tribunal had further recorded a categorical finding that the extension was being granted on the request of the petitioner and if in holding that the retrenchment cannot be said to be illegal, the Industrial Tribunal had made certain observations that the employers cannot be directed to create a post or keep a person unless they require such a person, cannot be said to mean that the Industrial Tribunal has exceeded its jurisdiction or gone beyond the scope of the reference.
30. So far as the analogy drawn by the petitioner from the case of Arshad Ali is concerned, it may be mentioned here that the Industrial Tribunal in the case of Arshad Ali had recorded a finding that the workman was not a trainee but was already well trained and possessed certificates and the management indulged in unfair labour practice by using nomenclature of trainee. This Court while dismissing the writ petition filed by the employer, has held as follows :
"A perusal of the award of the labour court shows that it has taken into consideration the appointment letters statement of witnesses of the management and has recorded a categorical finding that the management had indulged in unfair labour practice by using the nomenclature of "Trainee". The labour court found that the workman was already well trained and possessed certificates to that effect which was filed before the labour court. The explanation of the management that the training was under some scheme but the management did not also file any such scheme before the Labour Court and there was also nothing on record to show as to the nature of the alleged training being given to the workman. The alleged period of training has stretched to about four years. The petitioner has been unable to show that the award suffers from any perversity and the award is based on finding of facts."
31. No benefit or advantage can be derived from the aforesaid case of Arshad Ali as in the present case, the Tribunal on the basis of material and evidence on record before it, had recorded a categorical finding that the petitioner is merely a trainee.
32. In view of the foregoing discussions, I do not find any legal infirmity in the award passed by the Industrial Tribunal. The writ petition lacks merit and is dismissed.