CASE NO.: Appeal (civil) 1208-1209 of 2001 PETITIONER: Mukesh K. Tripathi RESPONDENT: Sr. Divn. Manager, L.I.C. & Ors. DATE OF JUDGMENT: 06/09/2004 BENCH: N. Santosh Hegde,S.B. Sinha & A.K. Mathur JUDGMENT:
J U D G M E N T
S.B. SINHA, J:
These appeals are directed against a judgment and order dated
8.1.1999 passed by the High Court of Judicature at Allahabad in Civil Misc.
Writ Petitions No. 30393 of 1996 and 28474 of 1998 whereby and
whereunder the writ petitions filed by the Respondent herein were allowed
setting aside an award dated 28.5.1996 passed by the Central Government
Industrial Tribunal cum Labour Court, Kanpur.
The basic fact of the matter is not in dispute.
The Appellant was appointed by the Life Insurance Corporation of
India (hereinafter called and referred to for the sake of brevity as “the
Corporation”) on or about 16.7.1987 as Apprentice Development Officer.
The relevant terms and conditions contained in the offer of appointment are
as under:
“2. You will be taken, at the outset, as an
Apprentice for a period of one year commencing
from 16.7.1987 on a stipend of Rs. 1250/- per
month, and will be given two months theoretical
training at Divisional Office, Kanpur and
thereafter the (sic) months Branch training
followed by Field Training in a Branch as may be
decided to us. You will faithfully and diligently
apply yourself to the course of training fixed for
you and carry out all orders and directions given to
you.
3. On completion of the apprenticeship period, if
your work and conduct are found satisfactory, you
will be appointed as a Development Officer on
probation on a monthly basic pay of Rs. 700/- and
such other allowances as are admissible in
accordance with staff Regulations.
4. During the period of apprenticeship, you shall
be liable to be discharged from service without any
notice.
7. You are not entitled to any travelling allowance
for joining the Training Centre at Division Office,
Life Insurance Corporation of India, Kanpur.”
The services of the Respondent were terminated purported to be in
terms of para 4 of the said offer of appointment by a letter dated 14.7.1988.
Contending that he has been retrenched in contravention of Section 25F of
the Industrial Disputes Act, the Appellant herein raised an industrial dispute
whereupon the Central Government by a notification dated 23rd August,
1991 referred the following dispute for adjudication of the Central
Government Industrial Tribunal cum Labour Court, Pandu Nagar, Kanpur
(for short “the Tribunal”):
“Whether the action of the Divisional Manager,
LIC of India, Kanpur, in discharging Sri Mukesh
Kumar Tripathi from service w.e.f. 14.7.88 is legal
and justified? If not to what relief the concerned
workman is entitled?”
Before the Tribunal a contention was raised by the Respondent No. 1
herein that the Appellant is not a workman within the meaning of Section
2(s) of the Industrial Disputes Act.
By reason o f its award dated 28.5.1996, the Tribunal held that in view
of the fact that the Appellant was discharged after the completion of the
apprenticeship period, he must be held to be a workman within the meaning
of Section 2(s) of the Industrial Disputes Act.
The Respondent No. 1 filed a writ petition before the Allahabad High
Court questioning the said award. Before the High Court, the Appellant
herein relied upon a decision of this Court in S.K. Verma Vs. Mahesh
Chandra and Another [(1983) 3 SCR 799 : (1983) 4 SCC 214] in support of
its contention that a Development Officer of the Corporation is a workman.
The High Court, however, relying on or on the basis of a Constitution
Bench decision of this Court in H.R. Adyanthaya and Others Vs. Sandoz
(India) Ltd. and Others [(1994) 5 SCC 737] held that as therein S.K. Verma
(supra) was held to have been rendered per incuriam, it was no longer a
good law. The writ petition was allowed on that premise.
Ms. Indira Jaisingh, learned senior counsel appearing on behalf of the
Appellant would contend that in S.K. Verma (supra) this Court upon taking
into consideration the works performed by a Development Officer came to
the conclusion that as neither the same are managerial or supervisory in
nature, he would be deemed to be a workman and, furthermore, in view of
the fact that the said decision has not been overruled by this Court in H.R.
Adyanthaya (supra), the High Court has committed a manifest error in
passing the impugned judgment.
Mr. K. Ramamoorthy, learned senior counsel appearing on behalf of
the Respondents, on the other hand, would submit that in H.R. Adyanthaya
(supra) a Constitution Bench of this Court has clearly laid down the law that
even if a person does not perform managerial or supervisory duties, with a
view to hold that he is a workman, it must be established that he performs
skilled or unskilled, manual, supervisory, technical or clerical work for hire
or reward and as it has not been established that the Appellant herein
performed any of the jobs enumerated in Section 2(s) of the Act, he is not a
workman.
The learned counsel has also drawn our attention to a Scheme known
as the Life Insurance Corporation of India (Apprentice Development
Officers) Recruitment Scheme, 1980 (for short “the Scheme”) for the
purpose of showing that an Apprentice Development Officer is a person
recruited for training and subsequent appointment to the cadre of
Development Officers. It was submitted that as the Appellant was appointed
in terms thereof, unless he was appointed and confirmed as a Development
Officer the question of his becoming a workman would not arise.
The Scheme framed by the Corporation although is not a statutory one
but the same governs the terms and conditions of appointment of Apprentice
Development Officer. An Apprentice Development Officer is a person
recruited for training and subsequent appointment to the cadre of
Development Officer. Clause 4 of the Scheme lays down the eligibility
criteria for recruitment as also the recruitment procedure. Clause 5 of the
said Scheme provides for apprenticeship and training. The period of
apprenticeship is one year. During the said period, the Apprentice is
required to undergo theoretical training at training centre for two months,
training in a selected rural branch for one month and a field training for a
period of nine months. An Apprentice Development Officer is paid a
monthly stipend. The period of apprenticeship is not counted as service for
any purpose including seniority, increments, gratuity, etc.
Clause 6.1 of the Scheme provides that an Apprentice Development
Officer may be discharged at any time without any notice or without
assigning any reason whatsoever. Only upon satisfactory completion of the
apprenticeship period, an Apprentice Development Officer is appointed as a
Development Officer on probation, the period wherefor is also one year.
The terms and conditions of service of a Development Officer are governed
by the Life Insurance Corporation of India (Staff) Regulations, 1960.
The question as to whether a sale representative is a workman within
the meaning of Section 2(s) of the Industrial Disputes Act came up for
consideration before a 3-Judge Bench of this Court in Management of M/s.
May and Baker (India) Ltd. Vs. Their Workmen [AIR 1967 SC 678]
wherein upon considering the definition of workman, as it then stood, it was
held:
“9At that time the definition of the word
“workman” under S. 2 (s) of the Industrial
Disputes Act did not include employees like
Mukerjee who was a representative. A “workman”
was then defined as any person employed in any
industry to do any skilled or unskilled manual or
clerical work for hire or reward. Therefore, doing
manual or clerical work was necessary before a
person could be called a workman. This definition
came for consideration before industrial tribunals
and it was consistently held that the designation of
the employee was not of great moment and what
was of importance was the nature of his duties. If
the nature of the duties is manual or clerical then
the person must be held to be a workman. On the
other hand if manual or clerical work is only a
small part of the duties of the person concerned
and incidental to his main work which is not
manual or clerical, then such a person would not
be a workman. It has, therefore, to be seen in each
case from the nature of the duties whether a person
employed is a workman or not, under the
definition of that word as it existed before the
amendment of 1956. The nature of the duties of
Mukerjee is not in dispute in this case and the only
question, therefore, is whether looking to the
nature of the duties it can be said that Mukerjee
was a workman within the meaning of S. 2 (s) as it
stood at the relevant time. We find from the nature
of the duties assigned to Mukerjee that his main
work was that of canvassing and any clerical or
manual work that he had to do was incidental to
his main work of canvassing and could not take
more than a small fraction of the time for which he
had to work. In the circumstances the tribunal’s
conclusion that Mukerjee was a workman is
incorrect. The tribunal seems to have been led
away by the fact that Mukherjee had no
supervisory duties and had to work under the
directions of his superior officers. That, however,
would not necessarily mean that Mukerjee’s duties
were mainly manual or clerical. From what the
tribunal itself has found it is clear that Mukerjee’s
duties were mainly neither clerical nor manual.
Therefore, as Mukerjee was not a workman his
case would not be covered by the Industrial
Disputes Act and the tribunal would have no
jurisdiction to order his reinstatement”
A similar view was taken by this Court in Western India Match Co.
Ltd. Vs. Workmen [(1964) 3 SCR 560], Burmah Shell Oil Storage &
Distribution Co. of India Ltd. Vs. Burmah Shell Management Staff Assn.
[(1970) 3 SCC 378] and in other cases.
A Division Bench of this Court, however, without noticing the
aforementioned binding precedent, in S.K. Verma (supra) held that the
duties and obligations of a Development Officer of Life Insurance
Corporation of India being neither managerial nor supervisory in nature, he
must be held to be a workman. Correctness of S.K. Verma (supra) came up
for consideration before a Constitution Bench of this Court in H.R.
Adyanthaya (supra). Referring to this Court’s earlier decisions in May and
Baker (supra), Western India Match Co. (supra) and Burmah Shell Oil
Storage (supra), it was observed that as in S.K. Verma (supra) the binding
precedents were not noticed and furthermore in view of the fact that no
finding was given by the court as to whether the Development Officer was
doing clerical or technical work and admittedly not doing any manual work,
the same had been rendered per incuriam.
The Constitution Bench summarized the legal position that arose from
the statutory provisions and from the decisions rendered by this Court,
stating :
“Till 29-8-1956 the definition of workman under
the ID Act was confined to skilled and unskilled
manual or clerical work and did not include the
categories of persons who were employed to do
‘supervisory’ and ‘technical’ work. The said
categories came to be included in the definition
w.e.f. 29-8-1956 by virtue of the Amending Act 36
of 1956. It is, further, for the first time that by
virtue of the Amending Act 46 of 1982, the
categories of workmen employed to do
‘operational’ work came to be included in the
definition. What is more, it is by virtue of this
amendment that for the first time those doing non-
manual unskilled and skilled work also came to be
included in the definition with the result that the
persons doing skilled and unskilled work whether
manual or otherwise, qualified to become
workmen under the ID Act.”
Considering the decisions in May and Baker (supra), Western India
Match Co. (supra), Burmah Shell Oil Storage (supra) as also S.K. Verma
(supra) and other decisions following the same, this Court in H.R.
Adyanthaya (supra) observed:
“However, the decisions in the later cases, viz., S.
K. Verma ((1983) 4 SCC 214 : 1983 SCC (L&S)
510 : (1983) 3 SCR 799), Delton cable ((1984) 2
SCC 569 : 1984 SCC (L&S) 281 : (1984) 3 SCR
169), and Ciba Geigy (1985) 3 SCC 371 : 1985
SCC (L&S) 808 : 1985 Supp (1) SCR 282) cases
did not notice the earlier decisions in May & Baker
((1961) 2 LLJ 94 : AIR 1967 SC 678 : (1961) 2
FLR 594) WIMCO ((1964) 3 SCR 560 : AIR 1964
SC 472 : (1963) 2 LLJ 459), and Burmah Shell
((1970) 3 SCC 378 : (1971) 2 SCR 758 : AIR 1971
SC 922 : (1970) 2 LLJ 590) cases and the very
same contention, viz., if a person did not fall
within any of the categories of manual, clerical,
supervisory or technical, he would qualify to be
workman merely because he is not covered by
either of the four exceptions to the definition, was
canvassed and though negatived in earlier
decisions, was accepted. Further, in those cases the
Development Officer of the LIC, the Security
Inspector at the gate of the factory and
Stenographer-cum-Accountant respectively, were
held to be workmen on the facts of those cases. It
is the decision of this Court in A. Sundarambal
case ((1988) 4 SCC 42 : 1988 SCC (L&S) 892)
which pointed out that the law laid down in May
and Baker case ((1961) 2 LLJ 94 : AIR 1967 SC
678 : (1961) 2 FLR 594) was still good and was
not in terms disowned.”
The Constitution Bench although noticed the distinct cleavage of
opinion in two lines of cases but held:
“These decisions are also based on the facts
found in those cases. They have, therefore, to be
confined to those facts. Hence the position in law
as it obtains today is that a person to be a workman
under the ID Act must be employed to do the work
of any of the categories, viz., manual, unskilled,
skilled, technical, operational, clerical or
supervisory. It is not enough that he is not covered
by either of the four exceptions to the definition.
We reiterate the said interpretation.”
The said reasonings are, therefore, supplemental to the ones recorded
earlier viz.: (i) They were rendered per incurium; and (ii) May and Baker
(supra) is still a good law.
Once the ratio of May and Baker (supra) and other decisions
following the same had been reiterated despite observations made to the
effect that S.K. Verma (supra) and other decisions following the same were
rendered on the facts of that case, we are of the opinion that this Court had
approved the reasonings of May and Baker (supra) and subsequent decisions
in preference to S.K. Verma (supra).
The Constitution Bench further took notice of the subsequent
amendment in the definition of ‘workman’ and held that even the Legislature
impliedly did not accept the said interpretation of this Court in S.K. Verma
(supra) and other decisions.
It may be true, as has been submitted by Ms. Jaisingh, that S.K.
Verma (supra) has not been expressly overruled in H.R. Adyanthaya (supra)
but once the said decision has been held to have been rendered per incuriam,
it cannot be said to have laid down a good law. This Court is bound by the
decision of the Constitution Bench.
From a perusal of the award dated 28.5.1996 of the Tribunal, it does
not appear that the Appellant herein had adduced any evidence whatsoever
as regard the nature of his duties so as to establish that he had performed
any skilled, unskilled, manual, technical or operational duties. The offer of
appointment dated 16.7.1987 read with the Scheme clearly proved that he
was appointed as an apprentice and not to do any skilled, unskilled, manual,
technical or operational job. The onus was on the Appellant to prove that
he is a workman. He failed to prove the same. Furthermore, the duties and
obligations of a Development Officer of the Corporation by no stretch of
imagination can be held to be performed by an apprentice.
Even assuming that the duties and obligations of a Development
Officer, as noticed in paragraph 8 of S.K. Verma (supra), are applicable in
the instant case, it would be evident that the Appellant herein could not have
organized or developed the business of the Corporation without becoming a
full-fledged officer of the Corporation. Only an officer of the Corporation
duly appointed can perform the functions of recruiting agents and take steps
for organizing and developing the business of the Corporation No area
furthermore could be allotted to him for the purpose of recruiting active and
reliable agents drawn from different communities and walks of life in view
of the categorical findings of the Tribunal that he had been working as an
apprentice. If organizing and developing the business of the Corporation
and to act as a friend, philosopher and guide of the agents working within his
jurisdiction were the primary duties and obligations of a Development
Officer, an apprentice evidently cannot perform the same.
We may consider the matter from another angle, viz., the appointment
of the Appellant as an apprentice under the Scheme vis-`-vis the Apprentices
Act, 1961.
The expression ‘Apprentice’ has been included in the definition of
‘workman’ contained in Section 2(s) of the Industrial Disputes Act, 1947 but
by reason of a subsequent Parliamentary legislation, namely, Apprentices
Act, 1961 (the 1961 Act), the term ‘apprentice’ has been defined in Section
2(aa) to mean “a person who is undergoing apprenticeship training in a
designated trade in pursuance of a contract of apprenticeship. Section 18 of
the 1961 Act provides that apprentices are trainees and not workers save as
otherwise provided in the Act. Clauses (a) and (b) of Section 18 of the 1961
Act read thus :
“(a) every apprentice undergoing apprenticeship
training in a designated trade in an establishment
shall be a trainee and not a worker; and
(b) the provisions of any law with respect to labour
shall not apply to or in relation to such apprentice.”
The term ’employee’ under various labour laws has been defined by
different expressions but Section 18 of the 1961 Act carves out an exception
to the applicability of labour laws in the event the concerned person is an
apprentice as contra-distinguished from the expressions ‘worker’,
’employee’ and ‘workman’, used in different statutes.
‘Apprentice’ under the general law means a person who is bound by a
legal agreement to serve an employer for an agreed period and the employer
is bound to instruct him. In Halsbury’s Laws of England, 4th Edn. Volume
16, it is stated :
“586. Form and parties. A contract of
apprenticeship is unenforceable if it is not in
writing. Usually the contract is effected by deed
under which the apprentice is bound to serve a
master faithfully in a trade of business for an
agreed period and the master undertakes to give
the apprentice instruction in it and either to
maintain him or pay his wages. Technical words
are not necessary.
An apprentice cannot be bound without his
own consent, and consent without execution of the
instrument is insufficient. The instrument must be
executed by the apprentice himself, for no one else
has a right to bind him. In the case of a minor his
father or mother or other guardian, although not
necessary parties to the contract, usually execute it
too in order to covenant for the apprentice’s due
performance of the contract since, in the absence
of a local custom, an apprentice who is a minor
cannot be sued on his own covenant. A contract of
apprenticeship is binding on a minor only if it is
on the whole beneficial to him.
It is not essential that the master should
execute a deed of apprenticeship, but where a
master had in fact executed one part of an
instrument of apprenticeship, a recital in that part
of the instrument that the apprentice had bound
himself apprentice to the master is evidence
against the master that the apprentice had executed
the other part of the instrument. A corporation
may take an apprentice.”
‘Apprentice’, as noticed hereinbefore, is defined to mean a person
who is undergoing apprenticeship training pursuant to a contract of
apprenticeship. How a contract of apprenticeship would be entered into is to
be found in sub-section (1) of Section 4 of the 1961 Act. The embargos
placed in this regard are: (i) entering into a contract of apprenticeship with a
minor in which event the contract must be executed by his guardian; and (ii)
on such terms or conditions which shall not be inconsistent with any
provision of the Act or any rule framed thereunder.
Furthermore, the apprentice must satisfy the statutory requirements as
regard qualification to be appointed as an apprentice.
Training of apprenticeship by reason of sub-section (2) of Section 4
shall be deemed to have commenced on the date on which the contract of
apprenticeship has been entered into under sub-section (1) thereof.
The provisions of the Scheme framed by the Corporation conform to
the provisions of the Apprentices Act and Rules framed thereunder. It is
worth noticing that Provident funds and insurance have been specified to be
a ‘designated trade’ within the meaning of Section 2(k) of the Apprentices
Act, 1961 by a notification No. G.S.R. 463(E) dated 23rd August, 1975.
The definition of ‘workman’ as contained in Section 2(s) of the
Industrial Disputes Act, 1947 includes an apprentice, but a ‘workman’
defined under the Industrial Disputes Act, 1947 must conform to the
requirements laid down therein meaning thereby, inter alia, that he must be
working in one or the other capacities mentioned therein and not otherwise.
We may further notice before the Tribunal a contention was raised by
the Appellant that upon expiry of the period of one year he was appointed as
a probationary officer but the said plea was categorically rejected by the
Tribunal holding :
“7. The concerned workman has also pleaded that
after expiry of one year he was appointed as
Probationary Development Officer. No date of
issuance of such order has been filed. In its
absence the version of the concerned workman is
disbelieved and it is held that concerned workman
after expiry of apprenticeship was not appointed as
Probationary Development Officer. Instead he
continued to work as Apprentice.”
A ‘workman’ within the meaning of Section 2(s) of the Industrial
Disputes Act, 1947 must not only establish that he is not covered by the
provisions of the Apprenticeship Act but must further establish that he is
employed in the establishment for the purpose of doing any work
contemplated in the definition. Even in a case where a period of
apprenticeship is extended, a further written contract carrying out such
intention need not be executed. But in a case where a person is allowed to
continue without extending the period of apprenticeship either expressly or
by necessary implication and regular work is taken from him, he may
become a workman. A person who claims himself to be an apprentice has
certain rights and obligations under the statute.
In case any person raises a contention that his status has been changed
from apprentice to a workman, he must plead and prove the requisite facts.
In absence of any pleading or proof that either by novation of the contract or
by reason of the conduct of the parties, such a change has been brought
about, an apprentice cannot be held to be workman.
It is true that the definition of ‘workman’ as contained in Section 2(s)
of the Industrial Disputes Act is exhaustive.
The interpretation clause contained in a statute although may deserve
a broader meaning having employed the word ‘includes’ but therefor also it
is necessary to keep in view the scheme of the object and purport of the
statute which takes him out of the said definition. Furthermore, the
interpretation section begins with the words “unless the context otherwise
requires”.
In Ramesh Mehta Vs. Sanwal Chand Singhvi & Ors. reported in 2004
(5) SCC 409, it was noticed :
“A definition is not to be read in isolation.
It must be read in the context of the phrase which
would define it. It should not be vague or
ambiguous. The definition of words must be given
a meaningful application; where the context makes
the definition given in the interpretation clause
inapplicable, the same meaning cannot be
assigned.
In State of Maharashtra v. Indian Medical
Assn. one of us (V.N. Khare, C.J.) stated that the
definition given in the interpretation clause having
regard to the contents would not be applicable. It
was stated : (SCC p.598, para 8)
“8. A bare perusal of Section 2 of
the Act shows that it starts with the words
‘in this Act, unless the context otherwise
requires’. Let us find out whether in the
context of the provisions of Section 64 of
the Act the defined meaning of the
expression ‘management’ can be assigned to
the word ‘management’ in Section 64 of the
Act. In para 3 of the Regulation, the
Essentiality Certificate is required to be
given by the State Government and
permission to establish a new medical
college is to be given by the State
Government under Section 64 of the Act. If
we give the defined meaning to the
expression ‘management’ occurring in
Section 64 of the Act, it would mean the
State Government is required to apply to
itself for grant of permission to set up a
government medical college through the
University. Similarly it would also mean the
State Government applying to itself for grant
of Essentiality Certificate under para 3 of
the Regulation. We are afraid the defined
meaning of the expression ‘management’
cannot be assigned to the expression
‘management’ occurring in Section 64 of the
Act. In the present case, the context does
not permit or requires to apply the defined
meaning to the word ‘management’
occurring in Section 64 of the Act.””
In Sri Chittaranjan Das vs. Durgapore Project Limited & Ors. [1995
(2) CLJ 388], it was opined:
“In my opinion, it is not difficult to resolve the
apparent conflict. Both in the Industrial
Employment (Standing Order) Act, 1946 as also
the certified Standing Order of the company the
word “including an apprentice” occurs after the
word ‘person’. In that view of the matter in place
of the word ‘person’, the word ‘apprentice’ can be
substituted in a given situation but for the purpose
of becoming a workman either within the meaning
of the 1946 Act or the standing order framed
thereunder, he is required to fulfil the other
conditions laid down therein meaning thereby he is
required to be employed in an industry to do the
works enumerated in the said definition for hire or
reward, whether the terms of employment be
express or implied.”
The question as to who would answer the description of the term
‘workman’ fell for consideration before this Court in Dharangadhra
Chemical Works Ltd. vs. State of Saurashtra and Others [AIR 1957 SC 264],
wherein this Court held :
“The essential condition of a person being a
workman within the terms of this definition is that
he should be employed to do the work in that
industry, that there should be, in other words, an
employment of his by the employer and that there
should be the relationship between the employer and
him as between the 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.”
Yet again in Workmen of Dimakuchi Tea Estate vs. Management of
Dimakuchi Tea Estate [AIR 1958 SC 353], this Court held :
“A little careful consideration will show, however,
that the expression ‘any person’ occurring in the
third part of the definition clause cannot mean
anybody and everybody in this wide world. First
of all, the subject matter of dispute must relate to
(i) employment or non-employment or (ii) terms of
employment or conditions of labour of any person;
these necessarily import a limitation in the sense
that a person in respect of whom the employer-
employee relation never existed or can never
possibly exist cannot be the subject matter of a
dispute between employers and workman.
Secondly, the definition clause must be read in the
context of the subject matter and scheme of the
Act, and consistently with the objects and other
provisions of the Act. It is well settled that
“the words of a statute , when there is a
doubt about their meaning are to be understood in
the sense in which they best harmonise with the
subject of the enactment and the object which the
legislature has in view. Their meaning is found
not so much in a strictly grammatical or
etymological propriety of language, nor even in its
popular use, as in the subject or in the occasion on
which they are used, and the object to be attained.”
(Maxwell, Interpretation of Statutes, 9th Edition,
p.55).
For the reasons aforementioned, we are of the opinion that no case has
been made out for interference with the impugned judgment. There is no
merit in these appeals which are dismissed accordingly. No costs.
