IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE Ag. CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 19TH DAY OF DECEMBER 2011/28THAGRAHAYANA 1933 WA.No. 1844 of 2011 ( ) AGAINST THE ORDER/JUDGMENT IN WPC.8032/2007 DATED 00-00-0000 APPELLANT(S)/PETITIONER: 1 THE PROJECT MANAGER, KHADI AND VILLAGE INDUSTRIES COMMISSION CENTRAL SLIVER PLANT KUTTOOR P.O. THRISSUR. BY ADV.SRI.K.KESAVAN KUTTY,SC,KVIC RESPONDENT(S) 1 K.R.PETER, KANJIRATHINKAL HOUSE, PARAKKADAVU P.O. KARUMASSERY VIA PIN-683 579. 2 LABOUR COURT, ERNAKULAM-682 031. R1 BY GOVERNMENT PLEADER SRI.A.JAYASANKAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX APPELLANT'S EXHIBITS: ANNEXURE-1: COPY OF MEMORANDUM DATED 1.9.1986. ANNEXURE-II: COPY OF MEMORANDUM DATED 31.8.1987. /TRUE COPY/ PS TO JUDGE MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 1844 of 2011 ---------------------------------------------- Dated this the 19th day of December, 2011 JUDGMENT Ramachandra Menon, J. Exhibit P4 Award passed by the Labour Court, Ernakulam was the subject matter of challenge at the instance of the Management before this Court in W.P(C).No.8032 of 2007. As per the Award, the workman concerned was ordered to be reinstated with 25% backwages, which, according to the Management, is not correct or sustainable, for the reason that the first respondent was only an 'apprentice' trainee appointed under Apprenticeship Act and not a workman as defined under Section 2(s) of the Industrial Disputes Act. 2. The sequence of events as narrated in the proceedings shows that the first respondent was engaged by the appellant- Management in their establishment originally for a period of one year and it was not extended any further. The denial of employment on expiry of the initial term led to an industrial dispute, which was referred for adjudication by the appropriate WA.1844/11 2 Government. After considering the issue referred to the Labour Court, a finding was arrived at that the person concerned was not a workman and hence, no Industrial dispute was there. The said Award was challenged before this Court in W.P(C).No. 22109 of 2000 wherein Exhibit P3 judgment was passed, holding that the approach made by the Labour Court was not correct and that even a trainee will come within the definition of he term 'workman'. Accordingly, the impugned Award was set aside and the matter was directed to be reconsidered. Pursuant to the above judgment, the issue was reconsidered by the Labour Court, Ernakulam, who passed Exhibit P4 Award, holding that denial of employment to the first respondent was not correct or proper and accordingly, reinstatement was ordered with 25% backwages, which, in turn, was subject to challenge by the appellant-management by filing W.P(C).No. 8032 of 2007. 3. After considering the rival contentions, the learned Single Judge of this Court observed that the contentions raised by the Management that the workman was appointed under the Apprenticeship Act and not liable to be treated as a workman, was not correct or proper. It was also observed with reference to the WA.1844/11 3 materials on record, that the appointment order was pursuant to a notification inviting applications for appointment to the post of 'Fitter' and as such, the appointment given was not as an apprentice trainee under the Apprenticeship Act, 1961. It was in the said circumstances, that the verdict was passed by the learned Single Judge upholding the Award observing that the termination of employment was without complying with the provisions of Section 25(F) of the Industrial Disputes Act and hence bad in law. The Management is challenging the finding of the learned Single Judge in this appeal. 4. During the course of hearing, the learned counsel for the appellant was sought to produce the relevant notification calling for applications for appointment as 'Fitter'. The Management has produced Annexure-I, which is the appointment order dated 1.9.1986 and Annexure-II dated 31.7.1987, which is the order putting an end to the service. During the course of proceedings, the appellant has also produced a copy of the relevant notification, along with a memo dated 8.12.2011. On going through the contents of the said notification, it is evident that the applications were invited by the appellant for filling up a WA.1844/11 4 temporary post of Fitter in the Silver Plant in Thrissur. Nothing is mentioned in the said notification, as to the engagement of any apprentice under the Apprenticeship Act, 1961. So also, in Annexure-I appointment order, the placement given is in respect of the post of 'Fitter' and not as a trainee under the Apprenticeship Act, 1961. True, the Mmanagement has got a case that the appointment order specifically contained a clause, whereby the Management was entitled to put an end to service, if the performance of the employee concerned was not to the satisfaction of the Management during the initial tenure of appointment. It was accordingly, that the said provision was invoked and Annexure II order was issued in the year 1987 terminating the engagement, which according to the Management, is perfectly within the four walls of law. 5. There is much difference between the engagement of a person as an apprentice under the Apprenticeship Act and a trainee appointed in an establishment, who comes very much within the definition of the term 'workman' under Section 2(s) of the Industrial Disputes Act. The materials produced by the Management do not reveal or establish that the engagement was WA.1844/11 5 under the Apprenticeship Act, so as to take it outside the purview of the ID Act. Since the findings rendered by the Labour Court and so also by the learned Single Judge are with reference to the engagement of persons concerned under the relevant provisions of the ID Act and since there is no dispute for the Management that statutory prescriptions under Section 25(F) were complied with, there cannot be any successful challenge with regard to the finding as to the course pursued by the Management. 6. It is also relevant to note that the concerned authority, who put an end to the service of the first respondent workman as per Annexure II, had submitted Exhibit P1 report evaluating the performance of the worker concerned. In the said proceeding, it was observed that the performance of the worker was not fit enough to be appointed as a 'Fitter', but he could be given a post of 'Fitter Helper', to assist in the general maintenance wing of the factory, along with a Fitter and to have the post redesignated accordingly. However, without any regard to the said suggestion/recommendation, Annexure-II termination order was passed by the very same authority, who made Exhibit P1 recommendation to redesignate the post and give appointment to WA.1844/11 6 the worker concerned as a 'Fitter helper'. That apart, it is seen that Annexure-I appointment order was issued by the 'Director', whereas Annexure-II termination order was issued by the 'Project Manager', who issued Exhibit P1, i.e., by a lower authority. 7. After hearing both sides, we find that the Management has not succeeded in establishing their contention that the workman concerned was appointed as an apprentice under the Apprenticeship Act, 1961. The finding and reasoning given by the Labour Court, as upheld by the learned Single Judge, do not call for any interference. 8. It is brought to our notice by the learned counsel for the appellant that in spite of the course and events, the appellant Management is ready and willing to satisfy the backwages, as awarded by the Labour Court and upheld by the learned Single Judge and that the grievance is more with regard to the reinstatement ordered. It is also stated that the worker concerned has already crossed the age of superannuation. We, however, do not want to express anything with regard to the age of superannuation. If the worker has already crossed the age of superannuation, the question of reinstatement does not arise at all. WA.1844/11 7 With the above observation, the Writ Appeal is dismissed as devoid of any merit. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs