SCA/5153/1999 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5153 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to the civil judge? ========================================================= POWER BUILD LTD. & 1 - Petitioner(s) Versus DA SOLANKI - Respondent(s) ========================================================= Appearance : MR KUNAN NAIK, FOR M/S TRIVEDI & GUPTA for Petitioner(s) : 1 - 2. MR MUKESH H RATHOD for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 09/05/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – employer M/s.Power Build Limited has challenged the legality SCA/5153/1999 2/7 JUDGMENT and validity of the impugned judgment and award passed by the Labour Court, Anand dated 04.01.1999 in Reference (LCA) No.122 of 1992 directing the petitioner to reinstate the respondent with full back-wages with continuity of service and all other consequential benefits. 2. Facts leading the present Special Civil Application in nutshell are that the respondent came to be engaged in the petitioner – Company as Apprentice in the trade of machinist for a period of three years with effect from 01.08.1981 and that contract / agreement was also entered into between the parties for a period of three years i.e. 01.08.1981 to 31.07.1984 and the said agreement was also signed by the respondent – workmen. After completion of about three years, the respondent came to be relieved from 31.07.1984. The respondent raised industrial dispute and reference was numbered as Reference (LCA) No.104 of 1984 which was referred to Labour Court, Nadiad which was subsequently renumbered as Reference LCA No.122 of 1992 on establishment of Labour Court, Anand. It was SCA/5153/1999 3/7 JUDGMENT contended on behalf of the respondent that though he was appointed as apprentice but he was never given benefit of apprentice and agreement / contract was not registered which was required to be registered under the Apprentice Act. The Labour Court accepted the contention on behalf of the workmen and held that as agreement / contract was not registered as required under the Apprenticeship Act, the respondent – workmen cannot be treated as Apprentice and therefore, he would be considered as a Workmen and entitled to protection of labour laws and as there is breach of Section 25(f) of the Industrial Dispute Act, the Labour Court passed the impugned judgment directing the petitioner to reinstate the respondent with full back-wages. Being aggrieved and dissatisfied with the impugned judgment and award, the petitioner preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.Kunan Naik, learned Advocate appearing for M/s.Trivedi and Gupta, for the petitioner has submitted that admittedly the respondent was SCA/5153/1999 4/7 JUDGMENT appointed as Apprentice which is even borne out from the examination-in-chief and cross before the Labour Court and he was appointed as apprentice for a period of three years from 01.08.1981 and even contract / agreement was signed by the respondent and after completion of three years, he was relieved and therefore, the Labour Court has committed an error in not treating the respondent as apprentice merely on the ground that agreement / contract of apprentice was not registered under the Apprentice Act. He has relied upon the decision of the Hon'ble Supreme Court in the case of U.P.State State Electricity Board v/s. Shiv Mohan Singh and Anr. reported in (2004) 8 SCC 402; Mukesh K.Tripathi v/s. Senior Divisional Manager, LIC and Ors. reported in (2004) 8 SCC 387 and Dhampur Sugar Mills Ltd. V/s. Bhola Singh reported in (2005) 2 SCC 470. Therefore, it is requested to allow the present Special Civil Application. 4. Mr.Mukesh H.Rathod, learned Advocate appearing on behalf of the respondent – Workmen has heavily relied upon the decision of the Division SCA/5153/1999 5/7 JUDGMENT Bench of this Court in the case of Balkhan Doskhan Joya v/s. Gujarat Electricity Board reported in (2002) I LLJ 761 in support of his submission that as rightly held by the Labour Court that when apprentice contract was not registered as required under the Apprentice Act, the respondent cannot be treated as Apprentice, therefore, the Labour Court has rightly allowed the Reference and directed the petitioner to reinstate the respondent with full back-wages. 5. Mr.Kunan Naik, learned Advocate appearing on behalf of the petitioner has submitted that the decision relied upon by the respondent in the case of Ballkhan(supra) has been overruled and set aside by the Hon'ble Supreme Court in the case of U.P.State State Electricity Board v/s. Shiv Mohan Singh and Anr. reported in (2004) 8 SCC 402. 6. Heard the learned Advocates appearing on behalf of the respective parties. 7. It is not in dispute and even borne out from the examination-in-chief and cross of the respondent that the respondent was serving as Apprentice for a SCA/5153/1999 6/7 JUDGMENT period from 01.08.1981 to 31.07.1984 and agreement / contract was also entered into between the parties. On completion of three years i.e. on 31.07.1984, he was relieved. As held by the Hon'ble Supreme Court in the case of U.P.State State Electricity Board (supra), the respondent who was apprentice, the petitioner was not required to follow procedure as required under Section 25(f) and/or any other provisions of the Industrial Disputes Act, as the respondent cannot be said to be workmen. 8. Considering above three decisions of the Hon'ble Supreme Court as well as the fact that on completion of three years, the respondent came to be relieved after 31.07.1984, the Labour Court has committed an error in directing the petitioner to reinstate the respondent with full back-wages with continuity of service. 9. For the reasons stated above, the petition succeeds. Impugned judgment and award dated 04.01.1999 passed by the Labour Court, Anand in Reference (LCA) No.122 of 1992 is hereby quashed and set aside. However, it will be open for the SCA/5153/1999 7/7 JUDGMENT respondent to submit an appropriate application for fresh employment. As and when same is made, it may be considered in accordance with law and on merits. Ultimately, it is for the petitioner to consider the same and for that this Court has not expressed any opinion. Rule is made absolute accordingly. However, there shall be no order as to costs. [M.R.Shah,J.] satish