HIGH COURT OF ORISSA: CUTTACK RVWPET No.268 of 2010 From a judgment dated 01.11.2010 passed by this Court in W.P.(C) No.18088 of 2010. ---------- M/s Larsen & Toubro Limited, L & T House, Norattam Morarji Marg, Ballard Estate, Mumbai – 400001, represented through its Dy. General Manger (H.R.) AT/PO: Kansbahal, PS: Rajgangpur, Dist: Sundargarh … Petitioner. -Versus- State of Orissa & others … Opp. Parties For Petitioner : Mr.R.K.Rath, Sr. Advocate M/s D.P.Nanda, R.K.Kanungo, S.Rath & B.P.Panda For Opp. Parties : Government Advocate ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Hearing : 02.12.2010 : Date of Judgment : 04.03.2011 B.N.Mahapatra,J. This Review Petition has been filed with a prayer to review the judgment dated 01.11.2010 passed by this Court in W.P.(C) No.18088 of 2010 holding that an apprentice is a workman in view of the definition of ‘employee’ given in Rule 3(c) of the Verification of Membership and Recognition of Trade Unions Rules, 1994 (for short “Rules, 1994”). Under Rule 3(c), an ‘employee’ is a ‘workman’ as defined under Section 2(s) of the I.D. Act, 1947. According to Section 2(s), ‘workman’ means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. 2. Mr. R.K.Rath, learned Senior Advocate appearing for the Review petitioner challenges the impugned judgment on the following grounds:- (i) Under Section 18 of the Apprentices Act, 1961 (for short, ‘Act, 1961’) apprentices are trainees and not workers and the provisions of any law with reference to labour shall not apply to or in relation to such apprentices. An apprentice is a person who is undergoing apprentices training in pursuance of contract of apprenticeship. Under Section 2(r) of the Act, 1961 a ‘worker’ is 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; (ii) Though the standing orders have defined ‘workman’ to include apprentice, they have also defined ‘apprentice’ as a learner who is being trained for a fixed period in a skilled trade or in various branches of a profession with or without remuneration and who may or may not be employed by the Company after the period of training is over; (iii) Letter to Assistant Labour Commissioner-cum-Returning Officer dated 06.11.2004 defines that advanced trainees are undertaking training as per the Scheme approved by the Director of Technical Education & Training, Orissa on the request of the Unions with the objective of helping the local youth to acquire skill so that they can have better job prospect elsewhere. There is no obligation on the part of the employer to offer any employment to the trainees. In support of his contention, Mr. Rath placed reliance on the decisions of the 2 apex Court in National Small Industries Corporation Limited Vs. Lakshminarayanan, (2007) 1 SCC 214; Dhampur Sugar Mills Limited Vs. Bhola Singh, AIR 2005 SC 1790 and in Dharangadhra Chemical Workers Ltd. Vs. State of Saurastra & Ors., Manu/SC/0071/1956; (iv) In view of the decisions of the apex Court in Ramesh Mehta Vs. Sanwal Chand Singhvi & Ors., AIR 2004 SC 2258 and Sri Chittaranjan Das Vs. Durgapore Project Limited & Ors., 1995 (2) CLJ 388 an apprentice is not a workman; (v) An apprentice cannot come within the ambit of workman unless he is employed to do the work in an industry; (vi) Opp. Party No.3, the Asst. Labour Commissioner, Rourkela had categorically directed O.P. No.4, the Returning Officer to discharge the duties laid down under Rule 6 of the Rules, 1994 which expressly provides that persons who are on regular roll of the establishment are to be included in the exercise of recognition and this important aspect of law has not been considered; (vii) O.P. No.5 Union through it’s General Secretary, who is also the General Secretary of O.P. No.6 Union, having already challenged the decision to exclude the trainees from the verification process in the earlier process of recognition and the same being negatived and such decision having not been challenged and attained finality, he cannot raise the same issue by clothing himself in a different character and such oblique attempt is barred by the principles of res judicata as well as the law of estoppel; (viii) Neither the Returning Officer nor the High Court is empowered under law to decide the status of an employee to be either workman or otherwise; 3 (ix) A combined reading of Rule-3(c), Rule-6 and Rule-13 of Rules, 1994 makes it apparent that the apprentices or advanced trainees are neither permanent employees nor can be described as ‘workmen’ in view of the provisions of the Special Statute, i.e., Section 18 of the Apprentices Act, 1961 and the decision of the apex Court in Maya Mathew Vs. State of Kerala, (2010) 4 SCC 498; (x) The terms of appointment of advanced trainees have not been taken into consideration and merely because statutory deduction are being made under EPF and ESI Act the same cannot confer them the legal rights as done under other labour laws and they are precluded from the exercise of recognition of trade unions; (xi) The principle of sub silentio has been inadvertently given a wrong application in the present case inasmuch as it is squarely applicable to the acts of O.P. No.5 through its General Secretary. 3. The various grounds on which Mr. Rath, learned Senior Advocate seeks review of the impugned judgment can be classified under three different heads, i.e., (i) in view of certain provisions of the Apprentices Act, 1961 (for short, ‘Act, 1961’) an apprentice is not a worker, (ii) similarly, in view of some decisions of the apex Court which are directly covering the issue, an apprentice cannot be held as workman for the purpose of verification of membership and recognition of trade unions, and (iii) certain observations/findings of this Court are factually incorrect. 4. Placing reliance on Sections 18 and 2(r) of the Act, 1961, it is submitted that every apprentice who is undergoing apprenticeship training in a designated trade in an establishment shall be treated to be a trainee and not a workman. The provisions of 4 any law with respect to labour shall not apply to or in relation to such apprentice. Further section 2(r) of the Act, 1961 states that a worker is 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. Therefore, according to Mr. R.K. Rath, since the Apprentices Act, 1961 is a special Act relating to apprentice, the same has overriding effect over the definition of workman provided under Section 2(s) of the I.D. Act, 1947 which defines that the term ‘workman’ includes apprentice. 5. Now, the question that falls for consideration, is whether the Rules, 1994 in which the definition of “employee” has been given in Rule 3(c) as well as the I.D. Act, 1947 is a special statute and the same has to prevail over the provisions of the Apprentices Act, 1961, while considering the issue as to whether an apprentice is a workman or not for the purpose of verification of membership and recognition of trade Unions. It is not in dispute that the issue as to whether apprentice is a workman shall be considered for the purpose of verification of membership and recognition of trade Unions under the Rules, 1994 and Rule 3(c ) of Rules 1994 says ‘Employee’ means a ‘workman’ as defined in Section 2(s) of the I.D. Act, 1947. 6. At this juncture, it may be noted that Section 2(s)of the I.D.Act,1947 was substituted in 1984 which provides that ‘workman’ includes ‘Apprentice’ and the said definition is adopted in Rule3(c)of Rules,1994 for the purpose of verification of membership and recognition of trade Unions whereas Apprentices Act was enacted in 1961 with a view to regularize the training condition of the apprentices. The provisions of Apprentices Act, 5 1961 govern the field for which the said Act was enacted. We are here concerned with verification of membership and recognition of trade Unions. Therefore, provisions of the Rules, 1994 as well as Section 2(s) of the I.D. Act, 1947 which was substituted in the year 1984 being Special Statutes those prevail over the Apprentices Act, 1961, which is a general law. 7. At this juncture, it would be profitable to refer the decision of the apex Court in the case of The Life Insurance Corporation of India vs. D.J. Bahadur and others, AIR 1980 SC 2181, wherein it has referred to its earlier decision rendered in the case of the U.P. State Electricity Board and another vs. Hari Shankar Jain and others, AIR 1979 SC 65 and held that between the I.D. Act and LIC Act, the I.D. Act is a special statutory enactment. The relevant paragraphs of the said decision are quoted below: “49. The crucial question which demands an answer before we settle the issue is as to whether the LIC Act is a special statute and the ID Act a general statute so that the latter pro tanto repeals or prevails over the earlier one. What do we mean by a special statute and, in the scheme of the two enactments in question, which can we regard as the special Act and which the general ? An implied repeal is the last judicial refuge and unless driven to that conclusion, is rarely restored to. The decisive point is as to whether the ID Act can be displaced or dismissed as a general statute. If it can be and if the LIC Act is a special statute the proposition contended for by the appellant that the settlement depending for its sustenance on the ID Act cannot hold good against s. 11 and s. 49 of the LIC Act, read with Reg. 58 thereunder. This exercise constrains me to study the scheme of the two statutes in the context of the specific controversy I am dealing with. 50. There is no doubt that the LIC Act, as its long title suggests, is an Act to provide for the nationalisation of life 6 insurance business in India by transferring all such business to a corporation established for the purpose and to provide for the regulation and control of the business of the Corporation and for matters connected therewith or incidental thereto. Its primary purpose was to nationalise private insurance business and to establish the Life Insurance Corporation of India. Inevitably, the enactment spelt out the functions of the Corporation, provided for the transfer of existing life insurance business to the Corporation and set out in detail how the management, finance, accounts and audit of the Corporation should be conducted. Incidentally, there was provision for transfer of service of existing employees of the insurers to the Corporation and, sub-incidentally, their conditions of service also had to be provided for. The power to make regulations covering all matters of management was also vested in appropriate authorities. It is plain and beyond dispute that so far as nationalisation of insurance business is concerned, the LIC Act is a special legislation, but equally indubitably, is the inference, from a bare perusal of the subject, scheme and sections and understanding of the anatomy of the Act, that it has nothing to do with the particular problem of disputes between employer and employees, or investigation and adjudication of such disputes. It does not deal with workmen and disputes between workmen and employers or with industrial disputes. The Corporation has an army of employees who are not workmen at all. For instance, the higher echelons and other types of employees do not fall within the scope of workmen as defined in Section 2(s) of the ID Act. Nor is the Corporation’s main business investigation and adjudication of labour disputes any more than a motor manufacturer’s chief business is spraying paints! 51. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes — so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for 7 enforcement of awards and settlements. From alpha to omega the ID Act has one special mission — the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, of management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to. 52. What are we confronted with in the present case, so that I may determine as between the two enactments which is the special? The only subject which has led to this litigation and which is the bone of contention between the parties is an industrial dispute between the Corporation and its workmen qua workmen. If we refuse to be obfuscated by legal abracadabra and see plainly what is so obvious, the conclusion that flows, in the wake of the study I have made, is that vis-a- vis “industrial disputes” at the termination of the settlement as between the workmen and the Corporation, the ID Act is a special legislation and the LIC Act a general legislation. Likewise, when compensation on nationalisation is the question, the LIC Act is the special statute. An application of the generalia maxim as expounded by English textbooks and decisions leaves us in no doubt that the ID Act being special law, prevails over the LIC Act which is but general law. (Also see Ashoka Marketing Ltd. and another vs. Punjab National Bank and others, AIR 1991 SC 855) 8. In view of the above settled legal position, the Rules, 1994 is a special statute because it specifically deals with verification of membership and recognition of 8 trade Unions. Rule 3(c) of the Rules, 1994 specifically provides that “employee” means a workman as defined under clause (s) of Section 2 of the I.D. Act, 1947. Hence, the I.D. Act, 1947 would override a general law like the Apprentices Act, 1961, which has been enacted to regularize training condition of the apprentices. Thus, the definition of Section 2(s) of the I.D. Act, 1947 must prevail over Section 2(r) and Section 18 of the Apprentices Act as the I.D. Act is a special Act. The Apprentices Act, 1961 may be a special Act as regards the regularization and training condition of the Apprentices are concerned but for the purpose of Verification of Membership and Recognition of Trade Unions, the Rules, 1994, which adopts the definition of ‘workman’ as provided in Section 2(s) of the I.D. Act, 1947 shall be special laws and the Apprentices Act, 1961 is a general law in that field. 9. Apart from the above, the Apprentices Act, 1961 is enacted in the year 1961 whereas Section 2(s) of the I.D. Act was substituted in the year 1984 and Rule 3(c) of the Rules, 1994 has come into force in the year 1994 which specifically provides that “employee” means a workman as defined under clause (s) of Section 2 of the I.D. Act, 1947. Therefore, the definition of “employee” provided under Rule 3(c) of the Rules, 1994 which adopts the definition of “workman” as provided in Section 2(s) of the I.D. Act, 1947 shall prevail over the provision provided in the Apprentices Act, 1961. In Maya Mathew case (supra), the apex Court held that Special Rules being later in point of time would prevail over the General Rule. When the rule making authority being aware of existence of provisions concerned of General Rules, and it 9 chooses to subsequently make a contrary provision in Special Rules, it is to be inferred that the subsequent rule was intended to prevail over the general rule. Therefore, The I.D. Act, 1947 & Rules, 1994 must prevail over the Apprentices Act, 1961 so far the issue as to whether an apprentice is a workman for the purpose of verification of membership and recognition of Trade Union is concerned. 10. In view of our finding in the preceding paragraphs, the decisions relied upon by Mr. Rath, are of no help to the review petitioner. 11. In Dhampur Sugar Mills Limited (supra), the question for consideration by the apex Court was whether termination of services of an apprentice appointed under the Scheme after payment of compensation in terms of Section 6N of the U.P. I.D. Act sponsored by the State Government amounts to retrenchment/unfair labour practice. The apex Court held that the termination of services of the apprentices after payment of compensation in terms of Section 6N of the U.P. I.D. Act is not unfair labour practice, even assuming that the respondent was a workman. In Ramesh Mehta (supra), the question raised before the Hon’ble Supreme Court for consideration was whether in counting the whole number of the Municipal Boards in terms of Rule 3(9) of the Rajasthan Municipality (Motion of No Confidence against the Chairman/Vice-Chairman) Rules, 1974 the nominated members are to be taken into consideration. In that context, the apex Court held that the nominated Municipal member cannot be counted for calculating the majority required for carrying a no confidence motion against a Chairman/Vice-Chairman of the members. 10 In National Small Industries Corporation Limited (supra), the point for decision was whether in view of Section 18 of the Act, 1961, the 1st Additional Labour Court, Chennai was justified in holding that the respondent who had been appointed as an apprentice by the appellant therein was a ‘workman’ within the meaning of Section 2(s) of the I.D. Act, 1947 and the termination of the respondent’s apprenticeship was in violation of Section 25-F of the I.D. Act and consequently he was entitled to reinstatement and continuity in service with all back wages and other concessions accrued to him. The apex Court held that even if it is accepted that respondent was a ‘workman’ within the meaning of the I.D. Act on account of contractual tenure his case would come within the exception of Clause (bb) of Section 2(oo) of the Act thereof. In such case also the provision of Section 25-F of the I.D. Act, 1947 would have no application to the respondent’s case. For the reasons stated in paragraph-9 above, the decision of the apex Court in Maya Mathew case (supra) supports the case of the opposite parties and is of no help to the review-petitioner. 12. In none of the cases relied upon by the review petitioner, the question as to whether an apprentice/trainee is a workman for the purpose of verification of membership and recognition of trade Union has been decided with reference to the definition given in Rule 3(c) of the Rules, 1994 which adopts the definition of ‘workman’ given in Section 2(s) of the I.D. Act, 1947. 11 13. The other contention of the review-petitioner is that the observation of this Court in paragraph 7 is not factually correct. In paragraph 7 of the judgment, this Court observed as follows: “7. The first reason given by opposite party No.4-Returning Officer in the impugned order is that the “Advanced Trainees” being “Apprentices” as per clause 2(g) of the Certified Standing Orders of the Company and having performed their jobs with regular workmen in shifts with E.S.I. and E.P.F. coverage under the respective Acts are ‘workmen’ as defined under Section 2(s) of the I.D. Act and there is no challenge to this finding and observation of the opposite party No.4-Returning Officer in the entire writ petition.” Learned Senior Advocate Mr. Rath, referring to paragraphs 33, 34 and 35 of the writ petition submitted that the reason given by opposite party No.4-Returning Officer extracted above has been denied by the petitioner in the writ petition, but this Court wrongly held that there is no challenge to the above observation of opposite party No.4. Perusal of the paragraphs 33,34 and 35 does not show that the petitioner in any paragraph denied the finding of opposite party No.4-Returning Officer as extracted above. In all the three paragraphs the only contention is that the Returning Officer- opposite party No.4 has no jurisdiction to determine the status of apprentice/trainee and coming to a finding that there were workmen and that he has ignored the order of opposite party No.3 and the judgment of this Court and committed illegality in not adhering to the intendment and object of the Rules, 1994. Therefore, this contention also must fail. 12 14. All other grounds taken in the review petition cannot be the grounds for a review. The Hon’ble Supreme Court in Haridas Das v. U.R. Banik (Smt.) & Ors.,AIR 2006 SC 1634, held that a perusal of the Order XLVII, Rule 1 shows that review of a judgment or an order could be sought : (a) from the discovery of new and important matter or evidence which after exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; (c) on account of some mistake or error apparent on the face of record or any other sufficient reason. Law is well settled that the power of review should not be confused with the appellate power. In Devaraju Pillai Vs. Sellayya Pillai, AIR 1987 SC 1160, the Hon’ble Supreme Court held that if a party is aggrieved by a judgment of a Court, the proper remedy for such party is to file an appeal against that judgment. Remedy by way of an application for review is entirely misconceived and if a Court entertained the application for review then it has totally exceeded its jurisdiction in allowing the review merely because it takes a different view on a construction of the document. In Delhi Administration Vs. Gurdip Singh Uban & Ors., AIR 2000 SC 3737, the Hon’ble apex Court deprecated the practice of filing review application observing that review, by no means, is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bypass the procedure prescribed for hearing a review application. 13 The Hon’ble Supreme Court in Jain Studios Ltd., through its President Vs. Shin Satellite Public Co. Ltd., AIR 2006 SC 2686, held that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of an original matter. A review of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. Thus, it is the settled position of law that review