# U.P. STATE ELECTRICITY BOARD v. SHRI SHIV MOHAN SINGH AND ANR

- **Citation:** [2004] Supp. 4 S.C.R. 953
- **Court:** Supreme Court of India
- **Decided:** 2004-10-01
- **Case number:** Civil Appeal No. 2429 of2003
- **Bench:** N. Santosh Hedge, S.B. Sinha, A.K. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/u-p-state-electricity-board-v-shri-shiv-mohan-singh-and-anr-20264
- **Pages:** 59

## Headnote

Apprentices Act, 1961:
Sections 18, 2(r), 2(aa), 2(aaa), 6, 7, 20, 21 and 22-Contract of
apprenticeship-Appointment of, apprentice trainee-Nature and character
of-Held: Apprentice trainee enters into contract to serve for fixed period
on fixed stipend-Apprentice is a trainee and his position will not change
to workman under employer where he is undergoing apprenticeship trainingObligation of employer-Held: Employer is only under an obligation to
impart training and pay stipend and not to accept the apprentice as his
employee and confer the status of workman-There is no relationship of
master and servant or employer and employee.
Sections 4(4)--Contract of apprenticeship-Non-registration of, with
Apprenticeship Advisor by employer-Effect of-Held: Registration of contract
A
B
c
D
with Apprenticeship Advisor is purely an administrative act-Non-registration
E
of contract will not render the contract invalid-Status of apprentice does
not change to that of a workman irrespective of the contract being registered
or not.
Section 4(4)--Contract of Apprenticeship shall be sent by employer to
Apprenticeship Adviser for registration-Expression 'shall '-Inte1pretation
F
of, mandatory or directory-Held: Interpretation of expression 'shall' in any
enactment depends upon the context in which it appears and its effect
thereof-From social legislation point of view expression 'shall' in section
4(4) should be construed as directory because it will be for the benefit of
apprentice-Treating it as mandatory will be more counter productive to the
G
interest of apprentices-Also no penalty is provided for breach of nonregistration-Thus, expression 'shall' cannot be construed to be mandatory
and is directory-Interpretation of Statutes.
Object of the Ac1-Held: Is to recruit apprentices and train them for
developing a strong industrial base.
H
953
954
SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.
A
Industrial Disputes Act, I947 and UP. Industrial Disputes Act, 1947B
c
D
E
F
G
Application of, to Apprentices Act, I 96 I-Held: Expression 'workmen' under
Section 2(z) and 2(s) includes apprentice but is not applicable to apprentice
appointed under Apprentices Act, 196 I-Reading definition of apprentice in
sections ~(aa) and 2(r) with section I8, it is clear that Apprentice Act which
is a special Act, does not cover workman and labour laws are not applicable
to apprentice-As such application of Labour Laws is excluded and labour
Court/Industrial Tribunal will not have jurisdiction to entertain any dispute
arising therefrom-Disputes are to be resolved under Section 20 of the
Apprentice Act-Sections 2(aa), 2(r), I8 and 20-Industrial Disputes Act,
I947, section 2(s)-UP. Industrial Disputes Act, I947, section 2(z).
The question which arose for consideration in these appeals filed
by the apprentices and the employers is with regard to the scope of
Apprentices Act, 1961 vis-a-vis the U.P. Industrial Disputes Act, 1947,
the Industrial Disputes Act, 1947 and the Indian Boilers Act, 1923.
Incumbents, in these appeals were appointed as apprentice trainees
in the designated trade except for few who were appointed otherwise.
The contract of apprenticeship was drawn for the incumbents except
few of them. In majority of the cases the contract was not registered
with the Apprenticeship Adviser and on completion of training their
services were terminated. Respondents raised industrial dispute claiming
status of worker under the Apprenticeship Act, 1961, benefit of section
25-F of the Industrial Disputes Act, 1947 or under section 6N of the U.P.
-- Industrial Disputes Act, 1947.
U.P. State Electricity Board contended that if an incumbent is
appointed as an apprentice trainee and contract Of apprenticeship has
not been registered, incumbent does not cease to be an apprentice and
his position does noi become that of a workman.
Apprentice trainees contended that the word 'shall' appearing in
sub-section 4 of section 4 of the 1961 Act means that the registration of
the contract is

## Text

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--
U.P. STATE ELECTRICITY BOARD
v.
SHRI SHIV MOHAN SINGH AND ANR.
OCTOBER 1, 2004
[N. SANTOSH HEDGE, S.B. SINHA AND A.K. MATHUR, JJ.]
Apprentices Act, 1961:
Sections 18, 2(r), 2(aa), 2(aaa), 6, 7, 20, 21 and 22-Contract of
apprenticeship-Appointment of, apprentice trainee-Nature and character
of-Held: Apprentice trainee enters into contract to serve for fixed period
on fixed stipend-Apprentice is a trainee and his position will not change
to workman under employer where he is undergoing apprenticeship trainingObligation of employer-Held: Employer is only under an obligation to
impart training and pay stipend and not to accept the apprentice as his
employee and confer the status of workman-There is no relationship of
master and servant or employer and employee.
Sections 4(4)--Contract of apprenticeship-Non-registration of, with
Apprenticeship Advisor by employer-Effect of-Held: Registration of contract
A
B
c
D
with Apprenticeship Advisor is purely an administrative act-Non-registration
E
of contract will not render the contract invalid-Status of apprentice does
not change to that of a workman irrespective of the contract being registered
or not.
Section 4(4)--Contract of Apprenticeship shall be sent by employer to
Apprenticeship Adviser for registration-Expression 'shall '-Inte1pretation
F
of, mandatory or directory-Held: Interpretation of expression 'shall' in any
enactment depends upon the context in which it appears and its effect
thereof-From social legislation point of view expression 'shall' in section
4(4) should be construed as directory because it will be for the benefit of
apprentice-Treating it as mandatory will be more counter productive to the
G
interest of apprentices-Also no penalty is provided for breach of nonregistration-Thus, expression 'shall' cannot be construed to be mandatory
and is directory-Interpretation of Statutes.
Object of the Ac1-Held: Is to recruit apprentices and train them for
developing a strong industrial base.
H
953
954
SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.
A
Industrial Disputes Act, I947 and UP. Industrial Disputes Act, 1947B
c
D
E
F
G
Application of, to Apprentices Act, I 96 I-Held: Expression 'workmen' under
Section 2(z) and 2(s) includes apprentice but is not applicable to apprentice
appointed under Apprentices Act, 196 I-Reading definition of apprentice in
sections ~(aa) and 2(r) with section I8, it is clear that Apprentice Act which
is a special Act, does not cover workman and labour laws are not applicable
to apprentice-As such application of Labour Laws is excluded and labour
Court/Industrial Tribunal will not have jurisdiction to entertain any dispute
arising therefrom-Disputes are to be resolved under Section 20 of the
Apprentice Act-Sections 2(aa), 2(r), I8 and 20-Industrial Disputes Act,
I947, section 2(s)-UP. Industrial Disputes Act, I947, section 2(z).
The question which arose for consideration in these appeals filed
by the apprentices and the employers is with regard to the scope of
Apprentices Act, 1961 vis-a-vis the U.P. Industrial Disputes Act, 1947,
the Industrial Disputes Act, 1947 and the Indian Boilers Act, 1923.
Incumbents, in these appeals were appointed as apprentice trainees
in the designated trade except for few who were appointed otherwise.
The contract of apprenticeship was drawn for the incumbents except
few of them. In majority of the cases the contract was not registered
with the Apprenticeship Adviser and on completion of training their
services were terminated. Respondents raised industrial dispute claiming
status of worker under the Apprenticeship Act, 1961, benefit of section
25-F of the Industrial Disputes Act, 1947 or under section 6N of the U.P.
-- Industrial Disputes Act, 1947.
U.P. State Electricity Board contended that if an incumbent is
appointed as an apprentice trainee and contract Of apprenticeship has
not been registered, incumbent does not cease to be an apprentice and
his position does noi become that of a workman.
Apprentice trainees contended that the word 'shall' appearing in
sub-section 4 of section 4 of the 1961 Act means that the registration of
the contract is mandatory and if the contract of apprenticeship under
the section is not registered with the Apprenticeship Adviser, contract
would cease and the incumbent becomes workman; and that the 1961
Act is a welfare legislation, and it should be construed liberally for the
H
benefit of the workman.
U.P. STATE ELECTRICITY BOARD v. S.M. SINGH
955
Allowing the appeals of the employers and dismissing of the appeals
A
of the apprentices, the Court
HELD: Per A.K. Mathur, J (for himself and N. Santosh Hegde, J.):
1.1. A combined reading of the sections 2(aa), 2(r), 6, 7, 18(b),
B
21and 22 of the Apprentices Act, 1961 as well as the Rule 11 of the
Apprentices Rules, 1962 makes it clear that the contract of apprenticeship
is entered with the employer and apprentice, and the apprentices are
only the persons who undergo training and during the training they are
entitled to get a particular stipend, they have to work for fixed hours
and at the end of period of training they have to appear in the test and
C
a certificate is issued to them as per section 21 of the Act. During the
training period he will be treated as an apprentice and he shall not be
deemed as a workman as per Section 18 of the Act read with definition
of 'workman' under section 2(r). (973-D-E-F; 973-A-B)
1.2. There is no obligation on the part of the employer to give the
apprentices any employment whatsoever and give them a status of
workmen. Only obligation on the part of the employer is to impart them
training as per the provisions of Act and the Rules and to pay them
stipend as required under Rule 11. There is no relation of master and
servant or employer and employee. It is open for the employer to offer
him employment but it will not be obligatory on the part of the apprentice
to serve that employer as per Section 22 except when there is specific
condition of contract to that effect. (973-E, F, G, C-D]
1.3. Sub-section (4) of section 4 only lays down that contract of
apprenticeship should be registered with the Apprenticeship Adviser which
is purely an administrative act so that he can monitor and keep a record
thereof. Non-registration will not renderthe contract as invalid resulting in
change of status of an apprentice to that of a workman. It is more than clear
from the scheme of the Act, the apprentice is recruited for the purpose of
training as defined in section 2(aa) of the Apprentices Act, 1961, that an
apprentice is a person who is undergoing apprenticeship training in
pursuance of a contract of apprenticeship and the apprenticeship training
has been defined under section 2(aaa). Therefore, reading of all these
provisions of the Act and Rules together makes it clear that the nature and
character ofapprentice is that of trainee only and will not change to that of
D
E
F
G
H
956
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A
a workman under the employer where he is undergoing the apprenticeship
training. This is irrespective of the fact that the contract was registered or
not. [977-E-F; 978-H; 979-A)
B
c
3.1. The Objects and Reasons reveal that the Act was enacted for
the purpose of recruiting the apprentices for developinp, a strong
industrial base for which trained man power is essential. The purpose
is to train the people for employing them in the industries; it was never
the intention that those trained candidates automatically become the
workmen. Therefore, the intention of the Act is basically to recruit and
train persons capable of being employed in the industries. (979-B-D)
3.2. With regard to the interpretation of the expression 'shall'
appearing in any enactment, one has to see the context in which it
appears and the effect thereof. The interpretation of the expression 'shall'
appearing in sub-section (4) of section 4, as mandatory, depends upon
D
the context in which it appears. [979-B)
E
F
G
3.3. If the contract of apprenticeship is to be treated as a mandatory
and contract· is not sent to the Advisor then the effect will be that the
apprentice will not be entitled to any benefit flowing from the Act. In
fact, by treating the expression 'shall' as a mandatory it will be more
counter productive to the interest of the trainees rather than for their
benefit. The employer can take a shelter under the plea that since the
contract of employment has not been registered with the Apprentice
Adviser, he is not under any obligation to pay stipend or impart training
to the apprentke trainees. Had that been the intention of the Legislature
then they would have provided the necessary penalty for breach of nonregistration of the contract of apprenticeship but the non-registration of
the contract has not been construed to be an offence so as to expose the
employer for any penalty. Therefore, the expression 'shall' appearing in
sub-section (4) of section 4 of the Act cannot be construed to be
mandatory and is directory. [979-G-H; 980-A-B, D, F]
f.T. Rajan v. T.P.M Sahir qnd Ors., [2003) 8 SCC 498, relied on.
3.4. Social legislations are primarily meant for welfare of the
particular section of the society and it should be construed liberally so
H
as to advance the cause· of the public at large. Viewing from social
U.P. STATE ELECTRICITY BOARD v. S.M. SINGH
957
legislation point of view the word 'shall' appearing in section 4(4) cannot
A
be construed to be mandatory and it is directory because it will be for
the benefit of the apprentice trainee; otherwise it will be oppressive to
the welfare of the apprentice. [981-F, G, BJ
Secretary, HSEB v. Suresh and Ors., [1999) 3 SCC 601; Air India
Statutory Corpn. and Ors. v. United Labour Union and Ors., [1997] 9 SCC
377 and Steel Authority of India Ltd v. National Union Waterfi·ont Workers,
[2001) 7 sec 1, referred to.
3.6. The definition of the word 'workman' in Section 2(z) of the U.P.
Industrial Disputes Act, 1947 and Section 2(s) of the Industrial Disputes
Act, 1947 includes apprentice but the expression 'workman' appearing in
section 2(z) and section 2(s) are not applicable to the apprentices appointed
under the Apprentices Act, 1961. Workmen specifically excludes the
apprentices as defined in Section 2(r) as such the trained persons shall not
fall in the definition of workmen. The Apprentices Act is a complete code in
itself, and it clearly stipulates that in Section 2 (aa) apprentice means a
person who is undergoing apprenticeship training in pursuance of contract
of training and the workers are employed for wages for work done by them.
Section 18 clearly mentions that apprentices will not be treated as workmen
and will be treated as trainees and the provisions of any law with respect to
labour law shall not apply to or in relation to such apprentices. Therefore,
reading of definition of apprentice in Sections 2(aa) and 2(r) read with
Section 18 of the Apprentices Act leaves no manner of doubt that the
Apprentice Act which is special Act, does not cover the workman and it
precludes the application of any other labour laws, i.e. U.P. Industrial
Disputes Act and Industrial Disputes Act, 1947. As such application of
these Acts automatically stand excluded and the Labour Court/Industrial
Tribunal will not have any jurisdiction to entertain any dispute arising
therefrom. If any dispute arises then settlement has to be done by
Apprenticeship Adviser as per section 20 and his decision is final.
(982-B-C-D-E-F; 977-DJ
Hanuman Prasad Choudhary Etc. v. Rajasthan State Electricity Board,
Jaipur (1986) LAB I.C. 1014; Bhaskaran v. Kera/a State Electricity Board,
(1986) KLT 447 and U.P. State Electricity Board and Ors. v. P.O. Labour
Court, Kanpur and Ors., (1998) 78 FLR 511, approved.
B
c
D
E
F
G
Ballkhan Doskhan Joya and Gujarat Electricity Board (2002) 92 FLR H
958
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
·., A
914; State of Gujarat and Anr. v. Chauhan Ramjibhoi Karsanbhai. (2004)
102 FLR 347 and MP. Electricity Board anc/ Ors. v. Basant Kumar and
Ors., (1989) JLJ 253, disapproved.
B
Per S.B. Sinha, J. (Concurring):
.
HELD: 1.1. U.P. Industrial Disputes Act, 1947 is a general law. The
Parliament enacted Apprentices Act, 1961 which is a special law. It
deals with the regulation and control of training of apprentices and for
matters connected therewith. Therefore, the special statute shall prevail
over the general statute having regard to the maxim 'genera/ia specialibus
C
non derogant". (1002-C-E]
D
E
F
G
Ta/cher Municipality v. Talcher Regulated Mkt. Committee & Anr.,
[2004) 6 sec 178, relied on.
1.2. If the language used in a statute is capable of bearing more than
one construction, the true meaningthereofshould be selected having regard
to the consequences resulting from adopting the alternative constructions.
A construction resulting in hardship, 'non-fulfillment of the purpose for
which statute has been brought in force, should be rejected and should be
given that construction which avoids such results. (1006-E-G)
1.3. Having regard to the mischief rule laid down in Heydon 's case
that court must adopt a construction which 'shall suppress the mischief
and advance the remedy', sub-section (4) of section 4 of the Apprentices
Act, 1961 has to be directory. (1006-G; 1007-B]
Ashok Leyland Ltd v. State of Tamil Nadu and Anr., (2004) 3 SCC 1
and Ameer Trading Corporation Ltd v. Shapoorji Data frocessing Ltd,
(2004) 1 sec 702, relied on.
Heydon's case (1584) 3 Co. Rep. 7a, referred to.
1.4. Ordinarily, although the word "shall" is considered to be
imperative in nature but it has to be interpreted as directory if the
context or the intention otherwise demands. (1003-F-G)
Mis. Sainik Motors, Jodhpur and Ors. v. State of Rajasthan, AIR
H
(1961) SC 1480, relied on.
....
•,
,•
U.P. STATE ELECTRICITY BOARD v. S.M. SINGH
959
Crawford on Statutory Construction p 539, referred to.
2.1. Only because the expression "shall" has been employed in subsection (4) of Section 4, the same may not be held to be imperative in
character having regard to the fact that not only a contract of
apprenticeship commences but also in view of the fact that an application
·for registration of apprenticeship contract is required to be made within
a period of three months in terms of Rule 4B of the Apprenticeship
Rules, 1962. The Act nowhere provides for the consequences of nonregistration. The _definition of 'apprentice' nowhere states that an
apprentice with a view to obtain the benefits of the said Act must also
A
B
be registered. Section 18 of the said Act says that an apprentice shall not
C
be a worker. It does not say that an unregistered apprentice shall be a
worker. (1005-D-E, C-D]
2.2. Prior to 1973, the provision for registration of contract of
apprenticeship with the Apprenticeship Advisor within the period D
prescribed was mandatory in character. Only having regard to the delay
which has occasioned for registration of contract of apprenticeship, the
amendment had been brought about; pursuant whereto or in furtherance
whereof the contract of apprenticeship commences, there is no reason as
to why the provision should be construed as imperative in character so
as to render a contract of apprenticeship a nullity which is possible to
E
be avoided and the object thereof can be achieved by taking recourse to
the penal provisions. (1007-C-E]
2.3. Ifa contract of apprenticeship is entered into; the violation of the
terms and conditions thereof, although may lead to penal consequences but
F
the same would not render the contract of apprenticeship void or illegal. If
in a given case, employer fails to get the contract of apprenticeship registered
and/or fails to carry on his obligations in terms of Section 11 of the Act, he
faces penal consequences in terms of Section 31 of the Act, and is also liable
to pay compensation for termination of apprenticeship under Rule 6
of the Apprenticeship Rules, 1962. In the ev~nt, the Apprenticeship
G
Advisor obtains information about such violations; he can resolve a
conflict by and between an employer and an apprentice, under
Section 20. Indisputably, he can issue directions which the employer
will have to comply with and on his failure to do so, he would run the risk
of being prosecuted in terms of Section ·30 of the Act, but he has not been
H
960
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A · conferred with any power to declare such contract of apprenticeship to be
ipso facto void ab initio. [1004-F-H; 1005-A-B, F-G]
B
2.4. The contract of apprenticeship like any other contract can be
brought to an end by the parties thereto. Once a contract of
apprenticeship commences, the same cannot be brought to an end except
in accordance with law. If it is to be held that by reason of nonregistration of such contract of apprenticesnip the contract itself comes
to an end, it would be detrimental to the interest of the apprentices,
which would frustrate the object of the Act. (1005-B-C]
C
2.5. No provision of the Act or the Rules framed thereunder was brought
to notice to show that non-registration of the contract of apprenticeship or
violation and/or neglect on the part of the employer to comply with the
other provisions of the Act would result in invalidation of the contract.
Status of apprentice does not change to that of a workman only because the
D
contract has not been registered or the employer has not carried out his
obligations thereunder. If such a construction is placed, an apprentice may
be held to have ceased to be an apprentice ifhe himself defaults in performing
his obligations under the contract. (1006-B-D]
Canbank Financial Services Ltd. v. The Custodian and Ors., (2004) 7
E
SCALE 495, referred to.
F
G
2.6. It is not a case where any of the apprentices repudiated the
contract. Whether a relationship of an employer and workman or an
employer and an apprenticeship had been brought about, is essentially
a question of fact. The Court while determining such a dispute must
consider the factual matrix involved therein in the light of the provisions
of the said Act. Once it is held that a contract of apprenticeship entered
into by and between the employer and the workman is a genuine one
and not a camouflage or a ruse, a presumption would arise that the
concerned person is not a workman. (1007-F, G-H]
2.7. It is one thing to say that a contract is illegal being opposed to
public policy so as to render the same void in terms of Section 23 of the
Contract Act but it is another thing to say that by reason of breaches
of the terms and conditions thereof by one of the parties it becomes
H voidable at the instance of the other party to the contract. If a contract
U.P. STA TE ELECTRICITY BOARD v. S.M. SINGH
96 l
is valid in law the breaches thereof would not render it invalid but the
A ·
same may only enable a party thereto, who had suffered by reason of
such breach, to avoid the contract. Unless the terms and conditions of
a contract are avoided by a party thereto the contract remains valid and
all consequences flowing therefrom would enure. to the benefit of the
parties thereto. In absence of any specific provision in the statute, it
cannot be said that in the event of breach by the employer the contract
of apprenticeship shall become a contract of employment. Such a novation
of contract is not contemplated in law. [1008-A-B, E-F)
F.C. Shepherd & Co. Ltd. v Jerrom, (1986) 3 All ER 589, referred to.
2.8. With a view to become a workman, not only the apprentice has
to show that he comes within the purview of the definition of the term
'workman' as contained in Section 2(z) of the U.P. Industrial Disputes
Act, 1947 but he must further plead and establish that his job is such
which fulfil~s the requirements of the said term. [1008-F-G)
Mukesh K .Tripathi v. Sr. Divn. Manager LIC and Ors., JT (2004) 7
SC 232, relied on.
2.9. It is necessary to ascertain as to how the parties to the contract
thought thereabout. Ordinarily, it is impermissible in law for a party to
the contract of apprenticeship to allow it to be worked out and then
contend that it was a contract of employment. (1009-A-B)
Bruton v. London and Quadrant Housing Trust, [1999] 3 All ER 481
and Street v Mountford, (1985) AC 809, referred to.
Mitrangshu Roy Choudhary v. Union of India & Ors., [1999) 3 SCC
649, relied on.
Rajendra Singh and Ors. v. UP. State Electricity Board, Shakti Bhawan,
Lucknow and Ors., (2000) 86 FLR 155; Sri Chittaranjan Das v. Durgapore
Project Limited & Ors., (1995) 2 CLJ 388 and Babula! and Others v.
Rajasthan State Road Transport Corporation and Anr., (2000) 84 FLR 847,
approved.
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Ballkhan Doskhan Joya v. Gujarat Electricity Board, (2002) 92 FLR H
962
SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.
A
914 and Ram Dular Paswan and Ors. v. P.O. Labour Court, Bokaro Steel
City and Ors., (1998) 80 FLR 399, disapproved.
B
c
D
E
The Employees' State Insurance Corporation and Anr. v. The Tata
Engineering and Locomotive Co. Ltd. and Anr. (1975] 2 SCC 835, referred
to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2429 of2003.
From the Judgment and Order dated 26.9.2002 of the Allahabad High
Court in C.M.W.P. No. 21560 of 1995.
WITH
C.A.Nos.8386, 7005, 7006,8383,8385,8384,9231,9234,9232,9233,
9679, 9680, 9681, 8683/2003, 122, 14, 1965 and 2193 of 2004.
P.K. Goswami, Rajiv Mehta, B. Aggarwala and Saurabh Srivastava for
the Appellant.
J.N. Dubey, R. Venkataramani; Anurag Dubey, Ms. Upasana Dubey,
K.B. Upadhyay, Ms. Salini Ranjan, Manish Kumar, S. R. Setia, Satya Mitra
Garg, Ms. Manju Aggarwal, Ashok Panighari, Imtiaz Ahmed, Ms. Nashma
Imtiaz, Kamran Malik, V.N. Raghupathy, Pradeep Misra, Sudhir Kulshrestha
for the Respondents.
The Judgment of the Court were delivered by
A.K. MATHUR, J. : In all these appeals common question of law is
F
involved, therefore, they are disposed of by common order.
The main question involved in these appeals is what is the scope of
Apprentices Act, 1961 vis-a-vis the U.P. Industrial Disputes Act, 1947,
Industrial Disputes Act, 1947 and the Indian Boilers Act, 1923.
G
The Apprentices Act, 1961 was promulgated primarily for the purpose
of recruiting the apprentices. The idea behind was strong industrial base
across the country. For the industrial growth it was necessary to have trained
man power and for that purpose the apprentices were recruited.
The Introduction, Objects and Reasons for enacting this Act reads as
H
under:-
"·
U.P. STATE ELECTRICITY BOARD v. S.M. SINGH [MATHUR, J.] 963
INTRODUCTION
"After India gained independence, a wave to have its own strong
industrial base swept the country. Backed by Government policies,
industrial growth had a quantum leap. With the industrial growth a
need was felt to have trained man-power and for that steps were
taken to arrange for training of apprentices in the industry. After
some years it necessitated that the training being imparted to the
apprentices should be regulated by legislation. Accordingly the
Apprentices Bill, 1961 was introduced in a Parliament to provide
for the regulation and control of training of apprentices.
STATEMENT OF OBJECTS AND REASONS
The question of undertaking legislation for regulating the training
of apprentices in industry has been under the consideration of the
Government for a long time. Expert committees which went into the
question have recommended such legislation. Although certain
establishment in the public and private sectors have been carrying
out programmes of training of skilled workers on a systematic basis,
industry in general has not as yet fully organized such programmes.
In the context of the Five Year Plan and the large scale industrial
development of the country, there is an increasing demand for
skilled craftsmen. The Government considers that it is necessary
fully to utilize the facilities available for the training of apprentices
and to ensure their training in accordance with the progr.cmmes,
standards and syllabi, drawn up by expert bodies.
The Bill is intended to give effect to these objectives."
Now we shall examine the necessary provisions of the Act. Section 2
deals with the definition. Section 2 (aa) defines "apprentice" which means
a person who is undergoing apprenticeship training in pursuance of a contract
of apprenticeship.
Section 2 (aaa) deals with "apprenticeship training" which means a
course of training in any industry or establishment undergone in pursuance
of a contract of apprenticeship and under prescribed terms and conditions
which may be different for different categories of apprentices.
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Section 2 (b) deals with" Apprenticeship Adviser" which reads as under:
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SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.
" 'Apprenticeship Adviser' means the Central Apprenticeship Adviser
appointed under sub-section (1) of Section 26 or the State
Apprenticeship Adviser appointed under sub-section (2) of that
section."
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Section 2 (d) defines "Appropriate Government" .
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. Section 2 ( e) defines 'designated trade' which means a trade of any
vocational course which the Central Government, after consultation with the
Central Apprenticeship Council, may by notification in the Official Gazette
specify as a designated trade for the purposes of this Act.
. ' Section 2 (t) deals with "employer" which means any person who
<;:mploys one or more other persons to do any work in an establishment for
remuneration and includes any person entrusted with the supervision and
control of employees in such establishment.
Section 2 (q) defines "trade apprentice" which means an apprentice who
undergoes apprenticeship training in any such trade or occupation as may be
prescribed.
Section 2 (r) deals with "worker" which means any person who is
employed for wages in any kind of work and who gets his wages directly
from the employer but shall not include an apprentice referred to in clause
(aa).
Section 3 defines qualification for being engaged as an apprentice. Only
two qualifications are required that he should not be less than fourteen years
of age and satisfies such standards or education and physical fitness as may
be prescribed.
Section 4 which is relevant for our purpose reads as under:-
"Contract of apprenticeship-(!) No person shall be engaged
as an apprentice to undergo apprenticeship training in a designated
trade unless such person or, ifhe is a minor, his guardian has entered
into a contract of apprenticeship with the employer.
(2) The apprenticeship training shall be deemed to have
commenced on the date on which the contract of apprenticeship has
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U.P. STATE ELECTRICITY BOARD v. S.M. SINGH [MATHUR, J.) 965
been entered into under sub-section (I).
(3) Every contract of apprenticeship may contain such terms
and conditions as may be agreed to by the parties to the contract:
Provided that no such term or condition shall be inconsistent
with any provision of this Act or any rule made thereunder.
(4) Every contract of apprenticeship entered h~~o under subsection ( l) shall be sent by the employer within such period as may
be prescribed to the Apprenticeship Adviser for registration.
(5) The Apprenticeship Adviser shall not register a contract of
apprenticeship unless he is satisfied that the person described as an
apprentice in the contract is qualified under this Act for being
engaged as an apprentice to undergo apprenticeship training in the
designated trade specified in the contract.
(6) Where the Central Government, after consulting the Central
Apprenticeship Counsel, makes any rule varying the terms and
conditions of apprenticeship training, of any category of apprentices
undergoing such training, then, the terms and conditions of every
contract of apprenticeship relating to that category of apprentices
and subsisting immediately before the making of such rule shall be
deemed to have been modified accordingly."
Section 5 deals with the Novation of contract of apprenticeship which
reads as under:
"Where an employer with whom a contract of apprenticeship has
been entered into, is for any reason, unable to fulfil his obligations
under the contract and with the approval of the Apprenticeship
Adviser it is agreed between the employer, the apprentice or his
guardian and any other employer that the apprentice shall be
engaged as an apprentice under the other employer for the unexpired
portion of the period of apprenticeship training, the agreement, on
registration with the Apprenticeship Adviser, shall be deemed to be
the contract of apprenticeship between the apprentice or his guardian
and the other employer, and on and from the date of such registration,
the contract of apprenticeship with the first employer shall terminate
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
and no obligation under that contract shall be enforceable at the
instance of any party to the contract against the other party thereto."
Section 6 deals with the period of apprenticeship training which reads
as under:-
"6, Period of apprenticeship training :-
The period of apprenticeship training, which shall be specified
in the contract of apprenticeship, shall be as follows -
(a)
in the case apprentices who, having undergone instinitional
training in a school or other institution recognized by the
National Cou!'lcil, have passed the trade tests or examinations
conducted by that Council or by an institution recognized by
that Council the period of apprenticeship training shall be such
as may be determined by that Council;
(aa) in the case of trade apprentices who, having undergone
institutional training in a school or other institution affiliated to or
recognized by a Board or State Council of Technical Education or
any other authority which the Central Government may, by
notification in the Official Gazette specify in this behalf, have passed
the trade tests or examinations conducted by that Board or State
Council or authority, the period of apprenticeship training shall be
such as may be prescribed;
(b) in the case of other apprentices the period of apprenticeship
training shall be such as may be prescribed;
(c) in the case of graduate or technician apprentice technician
(vocational) apprentice, the period of apprenticeship training shall
be such as may be prescribed."
Section 7 deals with the te~ination of apprenticeship Contract which
reads as under:
" 7. Termination of apprenticeship contract -
(I)
The· contract of apprenticeship shall terminate on the
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U.P. STATE ELECTRICITY BOARD v. S.M. SINGH [MATHUR, J.] 967
expiry of the period of apprenticeship training.
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(2)
Either party to a contract of apprenticeship may make
an application to the Apprenticeship Adviser for the termination of
the contract, and when such application is made, shall send by post
a copy thereof to the other party to the contract.
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(3)
After considering the contents of the application and the
objections, if any, filed by the other party, the Apprenticeship
Adviser may, by order in writing, terminate the contract if he is
satisfied that the parties to the contract or any of them have or has
failed to carry out the terms and conditions of the contract and that
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it is desirable in the interests of the parties or any of them to
terminate the same:
Provided that where a contract is terminated-
(a) for failure on the part of the employer to carry out the terms D
and conditions of the contract, the employer shall pay to the
apprentice such compensation as may be prescribed;
(b) for such failure on the part of the apprentice the apprentice
or his guardian shall refund to the employer as cost of training such
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amount as may be determined by the Apprenticeship Adviser.
(4) Notwithstanding anything contained in any other provision
of this act, where a contract of apprenticeship has been terminated
by the Apprenticeship Adviser before the expiry of the period of
apprenticeship training and a new contract of apprenticeship is being
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entered into with a new employer, the Apprenticeship Adviser may,
if he is satisfied that the contract of apprenticeship with the previous
employer could not be completed because of any lapse on the part
of the previous employer, permit the period of apprenticeship
training already undergone by the apprentice with his previous
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employer to be included in the period of apprenticeship training to
be undertaken with the new employer."
Section 8 deals with the number of apprentices for a designated trade.
Section 9 deals with practical and basic training of apprentices.
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A
Section 10 deals with the related instruction of apprentices.
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Section 11 deals with the obligations of employers which is relevant for
our purpose which reads as under:-
"Jl. Obligations of employers -
Without prejudice to the
other provisions of this Act every employer shall have the following
obligations in relation to an apprentice, namely -
(a) to provide the apprentice with the training in his trade in
accordance with the provisions of this Act, and the rules made
thereunder;
(b) if the employer is not himself qualifi,ed in the trade, to
ensure that a l?erson who possesses the prescribed qualifications is
placed in charge of the training of the apprentice;
(bb) to provide adequate instructional staff, possessing such
qualifications as may be prescribed for imparting practical and
theoretical training and facilities for trade test of apprentices; and
(c) to carry out his obligations under the contract of
apprenticeship."
Section 12 deals with the Obligations of apprentices which ,reads as
under:
"12. Obligations of apprentices (1) Every apprentice undergoing
apprenticeship training shall have the following obligations, namely:-
(a)
to learn his trade conscientiously and diligently and endeavour
to qualify himself as a skilled craftsman before the expiry of
the period of training;
(b)
to attend practical and instructional classes regularly;
©to carry out all lawful orders of his employer and superiors in the
establishment; and
( d) to carry out his obligations under the contract of apprenticeship.
U.P. STATE ELECTRICITY BOARD v. S.M. SINGH [MATHUR, J.] 969
(2) Every graduate or technician apprentice or technician . A
(vocational) apprentice undergoing apprenticeship training shall
have the following obligations, namely:-
(a) to learn his subject field in engineering or technology or
vocational course conscientiously and diligently at his place of B
training;
(b) to attend the practical and instructional classes regularly;
©to carry out all lawful orders of his employer and superiors in the
establishment;
( c)
to carry out his obligations under the contract of apprenticeship
which shall include the maintenance of such records of his
work as may be prescribed."
Section 13 regarding payment to apprentices which reads as under:
"13. Payment to apprentices -
(l) The employer shall pay to every apprentice during the
period of appr-enticeship training such stipend at a rate not less than
the prescribed minimum rate, or the rate which was being paid by
the employer on 1st January, 1970 to the category of apprentices
under which such apprentices falls, whichever is higher, as may be
specified in the contract of apprenticeship and the stipend so
specified shall be paid at such intervals and subject to such
conditions as may be prescribed.
(2) An apprentice shall not be paid by his employer on the basis
of piece work nor shall he be required to take part in any output
bonus or other incentive scheme."
Section 14 deals with Health, safety and welfare of apprentices.
Section 15 deals with hours of work, overtime, leave and holidays.
Section 16 deals with the employer's liability for compensation for
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injury.
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
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Section 18 deals with the Apprentices are trainees and not workers
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which reads as tinder:
" 18. Apprentices are trainees and not workers -
Save as otherwise provided in this Act, -
(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."
Section 19 deals with the records and returns.
Section 20 deals with settlement of disputes which is relevant for our
purpose reads as under:
"20. Settlement of disputes -
(1) Any disagreement or dispute
between an employer and an apprentice arising out of the contract
of apprenticeship shall be referred to the Apprenticeship Adviser for
decision.
(2) Any person aggrieved by the decision of the Apprenticeship
Adviser under sub-section (I) within thirty days. from the date of
communication to him of such decision, prefer an appeal against the
decision to the Apprenticeship Council and such appeal shall be
heard and determined by a Committee of that Council appointed for
the purpose.
(3) The decision of the Committee under sub-section (2) and
subject only to such decision of the Apprenticeship Adviser under
sub-section (I) shall be final."
Section 21 deals with holding of test and grant of certificate and
conclusion of training which reads as under:-
"21- Holding of test and grant of certificate and conclusion of
training -
(I) Every apprentice who has completed the period of
U.P. STATE ELECTRICITY BOARD v. S.M. SINGH [MATHUR, J.] 971
training shall appear for a test to be conducted by the National
A
Council to determine his proficiency in the designated trade in
which he has served his apprenticeship training.
(2) Every apprentice who passes the test referred to in subsection (1) shall be granted a certificate of proficiency in the trade
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by the National Council.
(3) The progress in apprenticeship training of every graduate
or technician apprentice technician (vocational) apprentice shall be
assessed by the employer from time to time.
(4)
Every graduate or technician apprentice or technician
(vocational) apprentice who completes his apprenticeship training to
the satisfaction of the concerned Regional Board, shall be granted
a certificate of proficiency by the Board."
Section 22 deals with offer and acceptance of employment which reads
as under:
"22. Offer and acceptance of employment- (1) It shall not be
obligatory on the part of the employer to offer any employment to
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any apprentice who has completed the period of his apprenticeship
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training in his establishment, nor shall it be obligatory on the part
of the apprentice to accept an employment under the employer.
(2) Notwithstanding anything in sub-section (I), where there
is a condition in a contract of apprenticeship that the apprentice
shall, after the successful completion of the apprenticeship training,
serve the employer, the employer shall, on such completion, be
bound to offer suitable employment to the apprentice, and the
apprentice shall be bound to serve the employer in that capacity for
such period and on such remuneration as may be specified in the
contract:
Provided that where such period or remuneration is not, in the
opinion of the Apprenticeship Adviser, reasonable, he may revise
such period or remuneration so as to make it reasonable, and the
period or remuneration so revised shall be deemed to be the period
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or remuneration agreed to between the apprentice and the employer." H
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A
Chapter III of the Act deals with the authorities like the powers of the
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Apprenticeship Adviser, Powers of entry, inspection, etc. Offences and
penalties, etc.
Section 3 7 deals with the power to make rules.