JUDGMENT
Arun Tandon, J.
1. Heard Sri Dinesh Dwivedi and Sri S.M. Dayal, learned Counsels for the petitioner, and Sri B.N. Singh, learned Senior Counsel for the Union of India-respondents.
2. This writ petition is directed against the award of the Central Government Industrial Tribunal-cum-Labour Court, Kanpur dated 31st July, 1989.
3. The facts of this case are that Kanhaiya Prasad was appointed as Craftsman Trainee Category I in the employment of Northern Goal Fields Limited (Bina Project), P.O. Bina Project, Distt. Sonbhadra under the terms and conditions mentioned in the appointment letter (Annexure II to the writ petition). The appointment had been offered on an initial basic wage of Rs. 15/- per day in daily rated pay scale of Rs. 25-00.26–18.12. In the terms and conditions of the appointment, it is mentioned that in the first year of training the workman will be entitled to wages meant for the Company’s workers in Category I as per National Coal Wage Agreement Classification and during the second year he was to get wages as payable to the Company’s workers in Category II under the said Classification. Thus, he has to be trainee in Category I in the first year and a trainee in Category II in the second.
4. It is significant that the offer of appointment specifically stipulated that the retention of the trainee, thereafter will depend on two requirements, first satisfactory report about performance as trainee and second, possession of National Apprenticeship Certificate. The worker had accepted the appointment as Craftsman Training Category I by his letter dated 20th December, 1983. He also submitted other required papers for joining on 29th December, 1983 and was allowed to join with effect from 30th December, 1983.
5. After completion of first year’s Training in Category. I satisfactorily, an order dated 22nd July, 1985 was issued by the Authority placing him in the daily rated Category II pay scale of Rs. 21.65–0.53-29.07 as Craftsman trainee on an initial basic of Rs. 21.65 per day w.e.f. 30th December, 1984.
6. In the said order dated 22nd July, 1985 it was again repeated that the retention, after completion of second year of training will depend upon two requirements, which were specified in the order of appointment, and the said order specifically reiterated the two requirements of satisfactory report about performance as trainee and possession of National Apprenticeship Certificate, which was necessary for such retention. The petitioner was permitted to continue after the said period of two years.
7. On 25th June, 1986 an order was issued, modified by order dated 15th February, 1988, whereby the training of the workman was terminated and he stood discharged as such in terms of Para 1 of the terms and conditions of the appointment letter.
8. Feeling aggrieved by the aforesaid order, the workman raised an industrial dispute The Central Government, in exercise of power under Section 10 of the Industrial Disputes Act, vide notification dated 16th/31st December, 1987 referred the dispute for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Kanpur, which reads as follows.
“whether the action of the Management of Northern Coal Fields Ltd. in relation to their Bina Project, Mirzapur in terminating the services of Sri Kanhaiya Prasad Craftsman (Trainee) Category. I w.e.f. 5th June, 1986 is fair, just and legal, if not, to what relief the workman concerned is entitled?”
9. Before the Labour Court, it was pleaded on behalf of the petitioners, amongst other, that after the period of training of the such Craftsmen trainee under Joint Bipartite Settlement for coal industries, vide implementation Instruction No. 30, dated 26th June, 1986 was increased to three years. Accordingly, training period of Craftsman trainee for trade of fitter was provided as three years in place of two years earlier. It was, therefore, contended that the period of training of workman stood extended upto 30th December, 1986. The services of the workman had been terminated during the course of training strictly in accordance with Para 1 of the appointment letter as terms and conditions attached thereto and there is no illegality in the same. Alternatively, it has further been contended before the Labour Court that; in any case, the workman could not be retained beyond the period of three years as he had not obtained such qualification for retention after training, namely, National Apprenticeship Certificate. It was, therefore, contended that workman cannot be retained in the employment of the petitioners-employers beyond the period of training.
10. It was contended on behalf of the workman that he was permitted to continue beyond the prescribed period of two years of training and, consequently, the said retention after expiry of period of original agreements, amounts to appointment as full-fledged fitter.
11. It was contended that no order in writing was issued by the employers extending the period of training from two years to three years. Consequently, the contention raised on behalf of the petitioner that the period of training of the workman stood extended from two years to three years is totally misconceived. It was also contended that the order dated 25th June, 1986 was passed by way of victimization and this was a clearly an Unfair Labour Practice.
12. The Labour Court, after affording opportunities of hearing and, after noticing the contents of terms and conditions of the appointment of the workman referred to above, answered the reference in favour of the workman arid against the employer. The Labour Court held that the order of termination from service of Kanhaiya Prasad dated 25th June, 1986 was unfair, unjust and illegal. Consequently, Kanhaiya Prasad is entitled to be reinstated with full back wages.
13. The findings recorded by the Labour Court with regards of the period of the training of Kanhaiya Prasad, being two years and not three years, is based on the appreciation of the terms and conditions of the orders issued in favour of the workman dated 8th July, 1983 and dated 22nd July, 1985. In both the aforesaid orders, the period of training has been provided as two years only. The said period training in the admitted facts of the case would expire on 30th December, 1985. The employers did not produce any document before the Labour Court to establish that in any of orders issued in favour of the workman there was mention of extension of his period of training from two years to three years. The Labour Courts as such is justified in holding that the period of training of the work come to an end on 30th December, 1985.
14. The contention, raised on behalf of the employer to the effect that in view of the Bipartite Agreement, referred to above, implementation endorsement instruction dated 26th June, 1984, the period of training of the workman stood extended three years in place of two years is totally misconceived. Bipartite Agreements are prospective in nature, unless there is specific provision otherwise. Meaning thereby the appointment as trainee subsequent to the said Bipartite Settlement Instructions i.e., 26th June, 1984 would alone be covered by the said Bipartite Implementation Instructions and the training period would be three years. However, the said Bipartite Settlement cannot be read, in moreover, to suggest that the training period of the workman, who were appointed providing the period of training as two years would be required to undergo a training of three years.
15. It is, therefore, established that the workman had successfully completed two years training period. The employers had illegally terminated the services of the workman vide order dated 25th June, 1986 modified by order dated 15th February, 1988 treating the workman to be a trainee, as such, cannot be sustained. The order provides on misconception of fact that the workman had carried out as trainee and ceased to be trainee. The Labour Court has rightly decided the said issue in favour of the workman and against the employers. Findings recorded in that regard by the Labour Court is affirmed.
16. On question as to what relief the workman is entitled, in the facts and circumstances of the present case, the Labour Court in Paragraph 10 of its award has held as follows :
“From the said of Sh. Prasad……………………….Thus, I concluded that the training period was of two years and it was never extended by any order by the management. There is also nothing on record to show that after successful completion of training any letter of appointment was issued in the name of Sh. Prasad, all sudden done, he would still be considered to have been given appointment as regular workman as even though his training ended on 30th December, 1985 his services were terminated w.e.f. 5th June, 1986. The question is what made the management to retain him in service even after his having completed the training. If there was no express order of appointment, there was an implied order of appointment for otherwise he would not have continued after 30th December, 1985. Hence on 5th June, 1986 he cannot be held as an Apprentice or as a trainee. He was a full fledged workman as defined under the Industrial Disputes Act, 1947. Therefore, the point is be decided in favour of the workman.”
17. The conclusion of the Labour Court that subsequent to 30th December, 1985 the workman ceased to be a trainee and became full-fledged workman, as defined under the Industrial Disputes Act, is based on the non-consideration of the case, pleaded by the employers.
18. The employer had specifically stated in the written statements before the Labour Court that retention of the trainee subsequent to the extended period of training shall depend on two factors : (a) the trainee has completed his training successfully, and (b) he is possessed of the National Apprenticeship Certificate. From the records of the present case, it is not in dispute that the workman concerned, is not possessed of National Apprenticeship Certificate. The question now arises as to whether in absence of any National Apprenticeship Certificate being, possessed by the workman, could he be retained in service subsequent to the expiry of the period of training. Meaning thereby can a trainee, like the petitioner, claim relief of retention in employment of the petitioner after expiry of the period of training, even though he has not possessed of a National Apprenticeship Certificate. For deciding the aforesaid dispute, it would be necessary to refer to the conditions of the appointment as mentioned in the letters issued in favour of the workman dated 8th December, 1983 and dated 20th December, 1983. In both the aforesaid letters, it has specifically been provided as follows :
“TERMS AND CONDITIONS
The present appointment is made under the company’s Training Scheme for absorption of Ex-ITI trained apprentices. As provided in the scheme, training period will consist of two years. While in the first year of training you will be entitled to wages meant for the company’s workers in Category-I as per the National Coal Wage Agreement’s (NCWA) classification of person employed in Coal Industry, wages aya le during the second year of training will be same as for the company’s workers in Category-II under the said classification Retention thereafter will depend on satisfactory report about your performance as a trainee. Possession of National Apprenticeship Certificate is considered essential for such retention. The trainee is, however liable to be terminated at any time without assigning any reason, and you will have not claim whatsoever on this count.”
19. In view of the aforesaid terms and conditions of the appointment of the workman, which he had accepted with his open eyes, the claim of the workman cannot be accepted for retention in service after competition of training as he was not possessed of the National Apprenticeship Certificate.
20. In such circumstances, the Labour Court has failed to appreciate and has overlooked the said conditions as mentioned in the appointment orders issued in favour of the petitioner while recording the finding in Paragraph 10 referred to above. The learned Labour Court, in such circumstances, has misdirected itself because of the non-considering of the terms and conditions of the appointment of workman, namely requirement of National Apprenticeship Certificate. The award of the Labour Court cannot be sustained, in so for as it holds that subsequent to 30th December, 1985 the workman became full-fledged worker in the employment of the petitioner.
21. At this stage, it is contended on behalf of the workman that a large number of trainees, who were not possessed of the National Apprenticeship Certificate have been retained as fullfledged workers in the employment of the petitioner. It was, therefore, suggested that the relief of reinstatement granted by the Labour Court may not be interfered with. The said issue was not raised before the Labour Court nor the Labour Court has applied its mind as to what relief, in the circumstances, the workman is entitled to, if he cannot be granted relief of the reinstatement after declaring the order of removal is illegal. This Court under Article 226 of the Constitution of India cannot decide the relief to which the workman would be entitled by taking fresh evidence of the fist time.
22. In such circumstances, it would be appropriate that the Labour Court should go into the question as to whether, in the facts of the case, the workman could be retained in service of the employers-petitioner after completing his period of training and whether for such retention, the requirement of National Apprenticeship Certificate was mandatory and condition precedent. The matter, as such is remanded to the Labour Court to decide the issue as to what relief the workman is entitled to in the facts of the case.
23. In the light of the observations made hereinabove, this petition is partly allowed.
24. It is needless to point out that it will be open to the workman to establish by fresh evidence that in respect of other trainee employees, the petitioners have waived the requirement of National Apprentice Certificate and have retained them in service without any National Apprenticeship Certificate being possessed of by similarly situate workman. The Labour Court shall decide the said issue after affording opportunity to lead the evidence afresh, preferably within a period of three months from the date a certified copy of this order is produced before., the Labour Court. Subject to the observations, made to above, this petition is partly allowed. There shall be no order as to costs.