# Rama Kant Dwivedi v. P.O., Industrial Tribunal (I), U.P., Allahabad and another

- **Citation:** (2004) 2 ILRA 480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-23
- **Case number:** Civil Misc. Writ Petition No.38453 of 1998
- **Bench:** R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-kant-dwivedi-v-p-o-industrial-tribunal-i-u-p-allahabad-and-another-40407
- **Pages:** 11

## Headnote

Sri V.R. Agarwal
Sri Vivek Ratan
Sri Piyush Bhargava
S.C.

U.P.
Industrial
Disputes
Act,
1947-
Section 6 N- Applicability- Appointment
of petitioner as a trainee only as pay
evidence
on
record
including
appointment letter-held, he cannot be
treated as a workman as no relationship
of master and servant exists- Further,
petitioner
not
appointed
as
apprentice/trainee under any scheme
approved by State Government-Thus, he
cannot be treated as an apprentice
falling under definition of workman as
given in Act- Therefore, provisions of S.
6-N of Act, held, not applicable.

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.
Para 12

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 6-N of
the Act would not be applicable.
Para 19
Case law discussed:
AIR 1957 SC 264
AIR 1985 SC 670
AIR 1994 SC 1824
1999 (81) FLR 222
AIR 1976 SC 66
1992 (65) FLR 203
1998 (80) FLR 399
W.P. 13481 of 1999, decided on 15.7.2003
AIR 1959 SC 1191
AIR 1979 SC 1356
AIR 1981 SC 1626
1997 (75) FLR 237
W.P.No. 3574 of 1997, decided on 13.3.1997
JT 2000 (8) SC 229
2003 (97) FLR 822
1991 (62) FLR 554

## Text

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480
AIR 1992 SC 496. The appeal is
dismissed.

 Appeal Dismissed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.4.2004

BEFORE
THE HON'BLE R.K. AGARWAL, J.

Civil Misc. Writ Petition No.38453 of 1998

Rama Kant Dwivedi

...Petitioner
Versus
Presiding officer, Industrial Tribunal (I),
U.P., Allahabad and another ...Respondents

Counsel for the Petitioner:
Sri Sanjay Sharma
Sri Suresh Singh

Counsel for the Respondents:
Sri V.R. Agarwal
Sri Vivek Ratan
Sri Piyush Bhargava
S.C.

U.P.
Industrial
Disputes
Act,
1947-
Section 6 N- Applicability- Appointment
of petitioner as a trainee only as pay
evidence
on
record
including
appointment letter-held, he cannot be
treated as a workman as no relationship
of master and servant exists- Further,
petitioner
not
appointed
as
apprentice/trainee under any scheme
approved by State Government-Thus, he
cannot be treated as an apprentice
falling under definition of workman as
given in Act- Therefore, provisions of S.
6-N of Act, held, not applicable.

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.
Para 12

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 6-N of
the Act would not be applicable.
Para 19
Case law discussed:
AIR 1957 SC 264
AIR 1985 SC 670
AIR 1994 SC 1824
1999 (81) FLR 222
AIR 1976 SC 66
1992 (65) FLR 203
1998 (80) FLR 399
W.P. 13481 of 1999, decided on 15.7.2003
AIR 1959 SC 1191
AIR 1979 SC 1356
AIR 1981 SC 1626
1997 (75) FLR 237
W.P.No. 3574 of 1997, decided on 13.3.1997
JT 2000 (8) SC 229
2003 (97) FLR 822
1991 (62) FLR 554

(Delivered by Hon'ble 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:-

3. The petitioner claims to have been
appointed as a Stenographer in the
establishment of the G.E.C. Alsthom
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481
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
6-N 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.

4. 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.

5. 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
others, AIR 1957 SC 264;
(ii) The workmen of the Food
Corporation of India v. M/s Food
Corporation of India, AIR 1985 SC
670;
(iii) S.K.Maini v. M/s Carona Sahu
Company Limited and others, AIR
1994 SC 1824; and
(iv) M/s Reptakos Brett & Co. v.
The Labour Court (Vth), Kanpur and
others, 1999 (81) FLR 222.

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
6-N of the Act ought to have been
complied with before retrenching the
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petitioner. In support of his submission,
he relied upon the following decisions:-

(i) The Employees' State Insurance
Corporation and another v. The Tata
Engineering & Co., Locomotive Co.
Ltd. and another, AIR 1976 SC 66;
(ii) Karuna Shankar Tripathi and
others v. State of U.P. and others, 1992
(65) FLR 203;
(iii) Ram Dular Paswan and others
v. P.O., Labour Court, Bokaro Steel
City and others, 1998 (80) FLR 399;
and
(iv) U.P. State Electricity Board
and another v. Presiding Officer,
Labour Court, IV, U.P., Kanpur and
another, 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 organization, 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:-
(i) The Calcutta Electric Supply
Corporation Ltd. v. The Calcutta
Electric Supply Workers' Union and
others, AIR 1959 SC 1191;
(ii) Factory Mazdoor Panchayat v.
The Perfect Pottery Co. Ltd. and
another, AIR 1979 SC 1356; and
(iii)
M/s
Firestone
Tyre
and
Rubber Co. of India (P) Ltd. v. The
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
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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 another, 1997(75) FLR
237;
(ii) U.P. State Electricity Board,
Kanpur v. Smt. Suman and another,
Civil Misc. Writ Petition No.3574 of
1997, decided on 13th March 1997;
(iii)
The
Factory
Manager,
CIMMCO
Wagon
Factor
etc.
v.
Virendra Kumar Sharma and another
etc., JT 2000(8) SC 229;
(iv) U.P. State Electricity Board v.
Ashok Kumar Shukla and another,
2003 (97) FLR 822;
(v) M/s G.E.C. of India Ltd., Naini,
Allahabad v. Its Workmn, 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 & Griffith
(Leverpool) Ltd., and Another, (1947) 1
A.C. 1, 23, "The proper test is whether or
not the hirer had authority to control the
manner of execution of the act in
question"
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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
K.B. 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."

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
this employed there can be no question of
his being a ''workman' within the
definition of the term as contained in the
Act."

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."

In the case of M/s Reptakos Brett &
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
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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."

11. 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"
(Chambers'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 451452:

"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
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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."

12. 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.

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.

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; or
(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."

13. 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.

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
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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."

14. 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."

15. 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
statute. The U.P. Act is a special statute
applicable only to U.P. 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."

16. In the case of U.P. State
Electricity Board, Kanpur (Civil Misc.
Writ Petition No.3574 of 1997, 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.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
488
In
the
case
of
The
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."

17. In the case of the U.P. State
Electricity Board v. Ashok Kumar
Shukla (supra), this Court has 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.

18. In the case of U.P. State
Electricity Board (Civil Misc. Writ
Petition No.13481 of 1999, 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 fulfill 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."

19. 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 6-N of
the Act would not be applicable.
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2 All] Rama Kant Dwivedi V. P.O., Industrial Tribunal (I), U.P., Allahabad and another
489
20. 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 in as much 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.

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 135-95 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 ?"

21. 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 & 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 traveled 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.

22. So far 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
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
490
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."

23. 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.

24. In view of the foregoing
discussions, I do no find any legal
infirmity in the award passed by the
Industrial Tribunal. The writ petition
lacks merit and is dismissed.

 Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.4.2004

BEFORE
THE HON'BLE MUKTESHWAR PRASAD, J.

Criminal Appeal No. 1310 of 1981

Girjapati

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri O.P. Misra
Sri Brijesh Sahai
Sri Sanjay Kumar Pandey

Counsel for the Opposite Party:
A.G.A.

Probation of offenders Act-S. 4-Grant of
benefit incident took place in 1974Appellant found guilty by Trial court in
1981- Appellant contended that in view
of long gap between date of incident and
date of hearing it would not be just and
proper to send him to prison again- held,
said contention has force- Since injured
was a public servant and was assaulted
by appellant at his official residence, he
is not entitled to benefit of S. 4 of the
Act.

It has also been urged that the incident
in question took place in the month of
August, 1974 and since then about thirty
years
have
elapsed.
Moreover,
the
appellant was found guilty by the court
below on 12.5.81. Therefore, in view of
the long gap between the date of
incident, date of conviction and the date
of hearing it would not be just and
proper to send him to prison again. I find
force in this contention. Since the injured
was a public servant and was assaulted
at the hands of the appellant at his
official residence, I am not inclined to
extend him the benefit of Section 4 of
the Probation of Offenders Act. Para 17

(Delivered Hon'ble Mukteshwar Prasad, J.)

1. Accused Girjapati has filed this appeal
against the judgment and order dated
12.5.81 passed by Sri G.S.N. Tripathi, the
then Additional Sessions Judge, Basti
whereby he convicted the accused under
Sections 201, 324 and 452 of the Penal
Code and sentenced him to suffer rigorous
imprisonment for a period of six months,
two years and one year respectively
thereunder.
All
the
sentences
were
ordered to run concurrently.