Skip to content


Patel Pravinkumar Somnath and ors. Vs. Gujarat State Land Development Corporation Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1992)1GLR728
AppellantPatel Pravinkumar Somnath and ors.
RespondentGujarat State Land Development Corporation Ltd. and ors.
Cases ReferredPhysical Research Laboratory v. Dr. Mukulsinha
Excerpt:
- - re-orientation of project staff and training to farmers in intigrated farming system, public participation activities like kisan mela, crop competition, reward or maintaining project assets to individuals and village community etc. 1-corporation thereupon informed to the existing apprentices as well as to the prospective candidates for apprentices that they were being engaged only for a period of one year from the date of joining as apprentices. he shall not be entitled to, like regular employee, any leave excepting one cl a month. it is their case that even without apprentices also the existing staff of the corporation at the sub-divisional level as well at the watershed level can cope up with the project activities. the act designedly contains well-guarded provisions outlining.....s.d. shah, j.1. by these petitions under article 226 of the constitution of india the petitioners have called upon this court to decide the question of their status, vis-a-vis, the gujarat state land development corporation. it is the case of the petitioners that the employer-employee relations exist between the corporation and themselves while it is the case of the respondent-corporation that the petitioners were the apprentices appointed under apprenticeship contract, and their relations were governed by specific stipulations contained in written contracts.2. the gujarat state land development corporation has, in its meeting, dated 1-11-1991 passed two resolutions at item no. 9 & 19 under which it is resolved that the apprentice employed under national watershed development programme.....
Judgment:

S.D. Shah, J.

1. By these petitions under Article 226 of the Constitution of India the petitioners have called upon this Court to decide the question of their status, vis-a-vis, the Gujarat State Land Development Corporation. It is the case of the petitioners that the employer-employee relations exist between the Corporation and themselves while it is the case of the respondent-Corporation that the petitioners were the apprentices appointed under Apprenticeship contract, and their relations were governed by specific stipulations contained in written contracts.

2. The Gujarat State Land Development Corporation has, in its meeting, dated 1-11-1991 passed two resolutions at Item No. 9 & 19 under which it is resolved that the apprentice employed under National Watershed Development Programme shall not be continued beyond a period of one year and to take appropriate action in that behalf and obviously the appropriate action is to relieve such apprentices on the expiry of a period of one year. These resolutions of the respondent-Corporation and the consequent apprehended termination of the petitioners are the subject-matters of challenge in these petitions.

3. In order to appreciate the real controversy between these petitioners on one hand and the respondent-Corporation on the other hand, it is necessary to set-out herein the relevant facts:

(i) The petitioners were engaged as apprentices on 'National Watershed Development Project for Rainfed Areas' (NWDPRA for brevity) which is a project of the Central Government and for which 100% funds were being made available by the Central Government. The project was launched by the Government of India in the year 1990. The watershed is a Geo-HydroJogical unit or a piece of land that drains at a common point. Watershed is the project of interaction of rain with land. The watershed development comprises of scientific utilisation of the natural resource base of land and water resulting in sustainable agriculture, forest and live-stock productivity and restoration of ecological balance in rainfed areas. During VIIIth Five Year Plan 60 watersheds in 3 Districts were planned. The programme has been continued as Watershed Programme in rainfed areas during VIIIth Five Year Plan after and restructuring the same on the basis of experience gained during VIIth Five Year Plan 169 Talukas have been identified to locate and develop one integrated watershed development project in each of the selected talukas to provide model for that area and accordingly 169 watersheds are already commenced by the respondent No. 1-Corporation. Since India is predominantly an agricultural country the object was to increase the agricultural production on modern and scientific basis in order to achieve the maximum advantage from the available sources. It was with the said objective that the aforesaid project was implemented from 1991 onwards.

(ii). By letter, dated 12th October, 1990 the Government of India laid down broad framework of the above project and also indicated its cost structure. Para 2.9 of the said letter reads as under:

2.9. Selection of a post-graduate in Agriculture as apprentice to be attached to each watershed development team (WDT) for a period of one year at a fixed monthly stipend of Rs. 2,500/- p.m. Preference should be given to local residents while selecting the candidates for apprenticeship. A structured training and reporting programme to be adhered to by this apprentice is being processed and would be sent to you shortly. Kindly ensure that those post-graduates in Agriculture are fully Utilised in the management functions of the watershed development team (WDT).

Annexure 'I' to the said letter laid down the broad framework of the above project and Item No. 4 in the said Annexure 'I' reads as under:

Training to the staff, landless agricultural workers and farmers for public participation. Re-orientation of project staff and training to farmers in intigrated farming system, public participation activities like Kisan Mela, Crop Competition, reward or maintaining project assets to individuals and village community etc. including CPR Management. Stipend 10 apprentice Rs. 2,500/- for four months in 1990-91.

(iii) It is the case of the respondent No. 1-Corporation that in view of the aforesaid broad framework it initially issued an advertisement in the month of November, 1990 inviting applications for apprenticeship for four months for the above project. Those who were possessing post-graduate qualification in Agriculture and who applied in response to the said advertisement were engaged as apprentices for a period of four months without holding any interview or subjecting them to any process of selection. The terms and conditions of their engagement as apprentices were specifically mentioned in the letter engaging them as apprentices.

(iv) Similar advertisement was issued in January, 1991. It is the case of the respondent No. 1-Corporation that at that time it was only having Government of India's letter, dated 12th October, 1990, and thereafter, the Corporation received the guidance in 'WARASA' for the above project. Para 10.4 of the said guidelines reads as under:

Apprenticeship: Post-graduates in Agriculture may be selected for undergoing apprenticeship training, one in each micro-watershed of the project for a period of one year. Each apprentice will be paid Rs. 2,500/- p.m. as stipend so that he or she can work with the Watershed Development Team (WDT). In the procegs. they will be exposed to ground realities. Attempts will be made to give preference for such apprentices in employment in ICAR, SAUs and State Governments. Request to this effect has been made to all concerned.

(v) The respondent No. 1-Corporation thereupon informed to the existing apprentices as well as to the prospective candidates for apprentices that they were being engaged only for a period of one year from the date of joining as apprentices. The circular to that effect, dated 17th March, 1991 was issued to all offices of the Corporation and the petitioners knew about the said instructions and it is the case of the Corporation that the petitioners have never challenged the said instructions. The apprentices who were engaged thereafter were specifically informed that they were being engaged for a period of one year only.

(vi) On expiry of said period of one year, according to the terms and conditions of the contract of apprenticeship, the persons engaged as apprentices were to be relived and resolutions were passed to that effect. Even in the absence of said resolutions, the persons engaged as apprentices were liable to be relieved consistent with the terms and conditions of the. contract of apprenticeship on the expiry of a period of one year.

(vii) Consistent with the terms and conditions of the contract since the petitioners were liable to be terminated they have approached this Courtr.

4. Before I proceeded to set out the rival contentions of the parties' and to deal with the same, it will be advantageous to set out the details of the apprenticeship contract and the terms and conditions thereof subject to which the petitioners and other employees came to be engaged as apprentices. It may be noted that the terms and conditions of the contract of apprenticeship were reduced to writing and the same were in Gujarati language and every apprentice has signed said contract of apprenticeship. The following arc the relevant material stipulation in the contract:

(a) The candidate is appointed as apprentice for a period of one year and on the expiry of said period he would be treated as automatically relieved,

(b) He shall not be entitled to any benefits or advantages which may be declared by the Corporation with respect to its regular employees and he shall not be entitled to bonus, DA, Medical allowance, PF, Group Insurance or gratuity or other benefits.

(e) For services rendered as apprentice he shall be paid at the end of every month duly fixed stipend. He shall not be entitled to, like regular employee, any leave excepting one CL a month. For non-use of CL no remuneration shall be paid.

(d) After resuming as apprentice, if for any other reason, the candidate desires to leave the assignment he shall have to refund the stipend realised by him.

5. It shall have to be noted that each petitioner in these petitions has agreed to the aforesaid terms and conditions and has signed the contract of service of apprenticeship in a token of acceptance of such terms and conditions.

6. On completion of period of one year and because of the aforesaid two resolutions at Item Nos. 9 & 19 taken in the meeting of 1st November, 1991 of respondent-Corporation the petitioners have rushed to this Court mainly contending that their appointments as apprentices by the respondent-Corporation was a device to deny to them the rights flowing from regular absorption in service and to terminate their services at the end of stipulated period. It is their say that work which is being taken from them as apprentice is still available and is going to be available and therefore they are entitled to continue in the employment of the respondent No. 1-Corporation irrespective of the terms and conditions of original contract inasmuch as their services cannot be terminated arbitrarily, whimsically and capriciously at the sweet-will of the respondent-Corporation so as to deny to them equality of opportunity in the matter of employment guaranteed by Articles 14 & 16 of the Constitution of India so as to render them jobless.

7. The respondent No. 1-Corporation has defended the petition mainly by contending that the petitioners were only appointed as apprentices and therefore they were mere trainees and not workers and they were governed by the provisions of Apprentices Act, 1961 or at least the spirit underlying the Act would apply to the relations between the parties. On completion of trainirg the respondent-Corporation was under no obligation to offer employment to the petitioners especially when they were employed for undergoing apprenticeship training only in micro-watershed of the project for a period of one year only on a monthly stipend of Rs. 2500/-. It is their further case that the object of the Corporation was that fresh post-graduates in agriculture will be exposed to ground realities in agriculture and to give them training so that they can be ready for employment in ICAR, State Agricultural Universities and State Governments and as such the person was not required to be employed in the employment of the Corporation. It is their further case that if the petitioners are foisted upon them as regular employees, the very scheme of giving training to the fresh graduates and post-graduates of agriculture would be rendered inoperative. It was in view of Central Government's instructions contained in the letters, dated 12-10-1990 and in the detailed guidelines issued by the Government of India that apprentices were being engaged at different watershed the idea of engaging apprentice is to enable him to take practical training and in that process he may assist the Agricrlture Officer Class II who is designated as Watershed Development Team Leader. It is their case that even without apprentices also the existing staff of the Corporation at the sub-divisional level as well at the watershed level can cope up with the project activities. In the past, with the same existing staff the Corporation was implementing the project and there was no need for any additional staff. It was only because of the guidelines issued by the Government of India that the respondent No. 1-Corporation started engaging the apprentices to enable the post-graduates to have practical training. They therefore submit that if the petitioners are directed to be employed regularly in the establishment the entire scheme floated by the Central Government will be frustrated and fresh post-graduates generally now available for training will be denied the intensive training. In the further affidavit-in-reply filed by the respondent No. 1-Corporation it is pointed out by the Corporation that in December, 1990/January, 1991 about 62 persons with degree of M.Sc. (Agriculture) were engaged. Thus, in all 109 apprentices were engaged for a period of one year. By January, 1992, fresh post-graduates are available for being engaged as apprentices and the Corporation has also received list from the Agricultural University containing the names of 111 students who have passed M.Sc. (Agriculture) by January, 1992 who are ready and willing to undergo apprenticeship training and are eligible and entitled to be considered for such training and after such training they become eligible and fully equipped and qualified for being employed in agricultural universities and other research centres of agriculture. The respondents therefore submit that the petitioners who were employed simply as apprentices should not be imposed upon the Corporation so as to render the entire scheme inoperative and so as to deprive the fresh post-graduates of the opportunity of getting training. It is their say that apart from NWDPRA project there is no other project or activities of the respondent-Corporation where apprentices are engaged by the Corporation. Out of 160 talukas under the said project the project activities are going on in only 130 talukas and when other eligible post-graduate students are available and are awaiting their turn for practical training the petition of the petitioners should not be entertained and Corporation should not be prevented from giving opportunity of apprenticeship training to fresh M.Sc. (Agrl.).

8. In the aforesaid fact situation, before examining rival contentions put forward by the parties it is necessary to consider the scope of the Apprentices Act, 1961 by reference to its various provisions. The preamble of the Act provides that the Act has been enacted to providing for regulation and control of training of apprentice and for the matters connected therewith. The Act was enacted for regulating the training for apprentice in industry. The Act was enacted so that the important industries and establishments in the country could give training to apprentices to make them useful to themselves and to the country after such training. The Act has deliberately made provisions to exclude the apprentices coming within the Act from the existing Labour Laws so that training could be given to those who want to be trained every year without the obligation of retaining them in service by complying with the provisions of I.D. Act. The Act by its various provisions has made it clear that there is no element of employment when an apprenticeship is offered and accepted. The Act designedly contains well-guarded provisions outlining the scope of term 'trainees' and denying to apprentices the benefits available under Labour Laws.

9. Having seen the preamble of the said Act along with the statement of objects and reasons, it is necessary to refer to the provisions of the Act. Having provided that the Act applies to whole of India by Section 1(4)(a) it is provided that the provisions of mis Act shall not apply to.

(a) any area or to any industry in any area unless the Central Government by notification in the official gazette specifies that area or industry as an area or industry to which the said provisions shall effect from such date as may be mentioned in the notification.

Section 2 of the Act contains the definition clause. The word 'Apprenticeship Training' is defined by Section 2 (aaa) which is as under:

apprenticeship training' means a course of training in any industry or establishment undergone in pursuance of a contract apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices.

The word 'apprentice' is defined by Clause 2(aa) which is as under:

'apprentice' means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship.

Section 2(e) defines 'designated trade' which reads as under: 'designated trade' means any trade or occupation or any subject field in Engineering or Technology (or 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.'

The word 'establishment' is defined by Section 2(g) which reads as under:

'establishment' includes any place where any industry is carried on.

Section 2(k) defines the 'Industry' to mean any industry or business in which any trade, occupation or subject field in engineering or technology (or any vocational course) may be specified as a designated trade.

The provisions of the Act can be made applicable only if any area or industry in any area is notified by the Central Govt. by notification in the official gazette as an area or industry to which the provisions of the Act shall apply with effect from the date mentioned in the notification as is provided in Section 1(4)(a) of the Act. Similarly, from the definition of the word 'designated area' it can be seen that any trade or occupation or any subject filed in engineering or technology can be brought within the ambit of the Act only if there is a like notification in the official gazette specifying any particular designated trade as one of the purposes of this Act. The question which shall have therefore to be asked in this petition is: Whether the notification under Section 1(4)(a) has been published by the Central Govt.? and also as to: Whether the post of apprentices like that of the petitioners are notified designated trade under the Act? Mr. K.G. Vakharia, learned Advocate for petitioners contended that there is no notification either under Section 1(4)(a) or under Section 2(e) notifying the trade as 'designated trade'. Mr. Mohit Shah, learned Advocate for respondent No. 1-Corporation does not dispute this factual position. Mr. Mohit Shah submits that the definition of 'Apprentice' as given in Section 2(aa) is amended so as to read as under:

(aa) 'apprentice' means a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship (as the words 'in a designated trade' which appear in the original definition are omitted vide the Apprenticeship (Amendment) Act of 1973.

Mr. Mohit Shah also refers to Section 4 of the Act which provides for contract of Apprenticeship. The amended Section 4 of the Act reads as under:

Contract of Apprenticeship:

(1) No person shall be engaged as an apprentice to undergo apprenticeship training in a designated trade unless such person or, if he 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 been entered into a contract of apprenticeship with the employer.

(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 into under Sub-section (1) shall be sent by the employer within such period as may be prescribed to the Apprenticeship Adviser for registration.

Section 6 of the Act provides for period of apprenticeship training. Section 7 of the said Act provides for termination of apprenticeship training. Section 8 empowers the Govt. to compel the employer to engage particular number/ratio of apprentices in a designated trade failing which the employer is liable to be punished with imprisonment and/or with fine under the provisions of Section 30(c) of the Act. Section 13 of the Act provides for payment of such stipend to apprentices at a rate not less than prescribed minimum rate. Section 18 being material to the controversy in the present petition, same is reproduced herein:

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 22 of the Act, inter alia, provides that it shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his Apprenticeship Training in his establishment nor shall it be obligatory on the part of the apprentice to accept employment under the employer.

10. From the close scrutiny of the aforesaid provisions of the Act following questions would arise which are required to be answered and appreciated in these petitions:

(i) Does the Apprenticeship Act apply to the respondent-Corporation, and the contract of Apprenticeship entered into between the respondent-Corporation and the present petitioners?

(ii) If the answer to the above is in the negative, is it open to the respondent-Corporation as employer to employ the services of the petitioners as apprentices-or to enter into contract of apprenticeship with the petitioners?

(iii) Whether in the absence of any specific prohibition in the Apprenticeship Act against entering into contract of apprenticeship, are the parties free to enter into contract of apprenticeship?

(iv) On true and proper construction of contract of apprenticeship, is any relationship of 'master-servant' created between the petitioners and the respondent No. 1-Corporation.

(v) Presuming that the relationship of 'master-servant' was created, was that relationship flowing from the contract confined to specific period at the expiry of which contract would come to an end? and

(vi) Was the contract of Apprenticeship camouflage or subterfuge to deny the opportunity of being regularly employed in the service of respondent No. 1-Corporation?

Applicability of Apprenticeship Act:

11. In order to determine as to whether the Act applies to the contract of Apprenticeship in these petitions or to the petitioner and the respondent No. 1-Corporation, it shall have to be stated that no notification is issued by the Central Govt. with respect to the respondent No. 1-Corporation expressly making the provisions of the said Act applicable to any area or any industry in any area to which the provisions of the Act are made applicable. The respondent No. 1-Corporation is also not notified by the Central Govt. after consultation with the Central Apprenticeship Council as 'designated trade'. Mr. Shah learned Advocate for respondent No. 1-Corporation has fairly stated that no notification of 'designated trade' with respect to respondent No. 1-Corporation is issued by the Central Govt. Therefore, in the absence of any notification of designated trade and any notification under Section 1(4) it shall have to be accepted that the provisions of the Act are not made applicable to the respondent-Corporation or to the industry. Ordinarily, therefore, there would be no scope for making any reference or placing any reliance on the provisions of the Act. However, learned Advocate for respondent No. 1-Corporation laid stress on the amended definition of 'apprentice' as given in Section 2(aa) to mean 'a person who is undergoing apprenticeship training in pursuance of a contract of apprenticeship'. He further submits that the words 'any designed trade' which were originally introduced in the definition of the word 'apprentice' arc omitted by the Amending Act of 1974 and such omission in his submission was deliberate and purposive so as to leave scops of applicability of the provisions and or spirit of the Act to contract of apprenticeship that can be entered into between the parties irrespective of the applicability of the provisions of the said Act. Therefore, it shall have to be decided as to whether the respondent-Corporation can take shelter of the provisions of this Act despite the fact that the Act is not expressly made applicable to the respondent No. 1-Corporation.

12. From the aforesaid discussion I hold that the trade occupation or subject field of respondent-Corporation is not 'designated trade' in the absence of notification specifying the trade, occupation or subject field of the Corporation as 'designated trade' for the purposes of this Act. I also hold that there is no notification of the Central Government specifying the area or industry of the respondent-Corporation as area or industry to which the provisions of the said Act apply.

13. Absence of specific prohibition in the Act prohibiting the parties to enter into a contract of apprenticeship. Answer to question No. 3:

(i) By reference to the aforesaid provisions of the Act and more particularly amended definition of 'Apprentice' as given under Section 2(a) and deletion of words 'designated trade' which were originally introduced in the definition of word 'apprentice' by Amending Act, 1974, Mr. Mohit Shah and Mr. Shelat strenuously urged before me that even if it is held that the provisions of the said Act did not apply to the trade or subject field of the respondent-Corporation, in the said Act there was no prohibition against entering into contract of apprenticeship between the industry and the person sought to be engaged as apprentice. By virtue of Section 4 of the said Act it is provided that no person shall be engaged as apprentice to undergo apprenticeship training in a designated trade unless such person has entered into a contract of apprenticeship with the employer. Therefore, the effect of the provision is that in a designated trade no person shall be engaged as apprentice to undergo apprenticeship training without a contract of apprenticeship. But what would be the effect if the industry is not a designated trade? Is an employee prohibited from entering into a contract of apprenticeship? In my opinion, from Section 4 nor from anyother provisions of the Act it can be inferred that in a trade which is not a 'designated trade' or in any other industry there cannot be a contract of apprenticeship between the employer and the person engaged as apprentice. Such a prohibition is difficult to be read into the provisions of the said Act.

(ii) In this connection, reliance is placed by the learned Counsels for the respondents on recent decision of the Supreme Court in the case of Dena Nath and Ors. v. National Fertilizers Ltd. and Ors., reported in : (1992)ILLJ289SC . Under Section 7 of the Contract Labour (Regulations and Abolition) Act, 1970 the principal employer was required to get the contract between himself and the contractor registered. Under Section 12 of the said Act the contractor employing workmen was required to possess a licence. The question involved was that if the principal employer does not get registration under Section 7 of the Act and/or the contractor does not get licence under Section 12 of the Act whether the person so appointed by the principal employer through the contractor is deemed to be the direct employee of the principal employer or not? The Supreme Court noticed that on this question there was a direct conflict between the decisions of the High Courts of Punjab and Kerala on one hand and decisions of High Courts of Madras, Gujarat and Kamataka on the other hand. The view of the Punjab and Kerala High Courts was that only the consequence of noncompliance either by the principal employer of Section 7 of the Act or by the contractor of Section 12 of the Act was that they were liable for prosecution under the Act, whereas the aforesaid four other High Courts took the view that in such a situation the contract labour becomes directly the employee of principal employer. It may be noted that as against the judgment of the Kamataka High Court and of the Gujarat High Court the Supreme Court noticed that the appeals were pending in the Supreme Court and therefore no opinion was expressed on the correctness or otherwise of the judgments of the two High Courts. However, with respect to the judgments of Madras and Bombay High Courts which have taken the view consistent with the view of the aforesaid two High Courts, and more particularly, the observations of the Madras High Court about the effect of non-registration of principal employer or the non-licence of labour contractor, the Supreme Court in terms agreed with and approved the judgment of Kerala High Court in the case of P. Karunakaran v. Chief Commercial Superintendent 1988 Lab.IC 1346 that only consequence of non-compliance either by the principal employer of Section 7 of the Act or by the contractor non-complying with the Section 12 of the Act was that they were liable for prosecution under the Act. After detailed reference to the provisions of the Act and the Rules made therein the Supreme Court found that the said Act served twofold purpose, i.e., (i) Regulations of the conditions of service of the workers employed by the Contractor who is engaged by the principal employer, and (ii) also provide for the appropriate Govt. abolishing contract labour altogether in certain notified processes, operation or other works in any establishment. The Court thereafter observed as under:

Neither the Act nor the Rules framed by the Central Government or by any appropriate Government provide that upon abolition of contract labour the said labour would be directly absorbed by the principal employer.

Further question posed before the Supreme Court for its consideration and which is ultimately answered by it can be better stated in the words of the Supreme Court itself. In para 13 of the judgment, the Court observed as under:

The question arises When the Act does not provide for such a measure, but contents itself by merely regulating the conditions of service of the contract labour, cart the Court in proceedings under Article 226 of the Constitution, where the principal employer or the licence contractor violates the provisions of Sections 9 or 12 respectively, would become directly the employee of the principal employer.

Having posed with the aforesaid question, the Supreme Court undertook he exercise of examining the conflict between the decisions of Punjab and Kerala High Courts on one hand and Madras, Bombay, Karnataka and Gujarat High Courts on the other hand. While undertaking that exercise the Court posed the most relevant question and (he question was as to whether the engagement of contract labour was bona-fide or it was a camouflage or subterfuge? The Court noticed that in appropriate cases in industrial adjudication appropriate directions can be given to the principal employer in this behalf either by the Labour Court or by the Tribunal. Thereupon the Court referred to the decision of the Supreme Court in the case of Standard Vacuum Refining Co. v. Their Workmen, : (1960)IILLJ238SC and the manner in which the Court directed the company to abolish the contract system of labour and to have the said work done through the workmen engaged by the Government. However, the Supreme Court made most pertinent observations in para 22 of said judgment which are as under:

It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not. It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act where either the principal employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made 10 Sections 23 & 20 of the Act. We are thus of the firm view that in proceedings under An. 226 of the Constitution merely because contractor or employer had violated any provision of the Act or the Rules, the Court could not issue mandamus for deeming the contract labour as having become the employees of the principal employer.

14. From the aforesaid observations of the Supreme Court it becomes clear that while dealing with the Contract Labour (Regulation and Abolition) Act, 1970 the Supreme Court found that the said Act did not prohibit the engagement of contract labour by the contractor who does not get a licence under Section 12 or by the principal employer who does not get registration under Section 7 of the Act and the person so appointed by the principal employer do not become the direct employee of the principal employer. The only consequence of non-compliance with Section 7 or 12 of the said Act is that the principal employer or the contractor, as the case may be incurs liability for prosecution. The Court also found that in proceedings under Article 226 of the Constitution of India simply because the employer or the contractor has not complied with the provision of the Act the Court cannot issue any mandamus for deeming the contract labour as having become the employees of the principal employer, that is not the effect of the said statute nor does the High Court possess such power to create master-servant relationship which the parties by their contract never wanted to create.

15. Based on the aforesaid decision of the Supreme Court Mr. Mohit Shah and Mr. Shelat appearing for the respondents contended that by adopting the process of reasoning by analogy under the Apprentices Act any trade, industry or establishment can employ apprentices under the Apprenticeship contract. They submitted that the respondent-Corporation has under the instructions of Central Government solely with a view to providing training to fresh post-graduates from Agricultural University has decided to employ apprentices fur a period of one year at a fixed stipend of Rs. 2,500/- p.m. The ministry of Agriculture has introduced and started National Watershed Development Project for rainfed areas so as to create models of scientific land use through development of integrated framing systems on the principles of watershed management in each development block where less than 30% arable area is under assured means of irrigation. The perspective and the objectives of the said project are clearly set out in the guidelines issued for the said project. Under the said project it is stipulated that training shall be given as per the curriculum and for such training fresh post-graduates from Agricultural University amongst others are the persons selected so at the conclusion of training persons well versed in the watershed development programme are ready and available for employment in ICAR, SAUn and the State Governments. It was with that object in mind that the respondent No. 1-Corporation pursuant to the directions issued by the Central Government started employing the apprentices under the Apprenticeship contract. They further submitted that since there is no express prohibition against employment of persons as apprentices under Apprenticeship contract the respondent-Corporation cannot be denied the right of employing apprentices under the Apprenticeship contract and if the contracts of apprenticeship are found to be otherwise bona fide and genuine and not camouflage or subterfuge by the Court, under Article 226 of the Constitution of India, the Court shall not grant any relief so as to inter relationship of master and servant.

The question now which would immediately arise would be: In the absence of applicability of the Apprentices Act, 1961 what was the nature of transaction between each of the petitioners in this petition and the respondent No. 1-Corporation. Are the petitioners-Apprentices undergoing apprentice training in pursuance to the contract of Apprenticeship? Are the contracts duly signed and executed by each petitioner the contract of apprenticeship? Can the petitioners having duly executed the contract of apprenticeship and having agreed to various terms and conditions of said contract contend that they are the trainees under contract and that they are the workers or employees governed by the master and servant relationship?'

16. Answer to the aforesaid questions can be given by reference to the circumstances preceding the contract of apprenticeship, the attendant circumstances and the circumstances subsequent to the contract of apprenticeship and also be reference to the fads and circumstances under which the National Watershed Development Project for rain fed areas was started and the objectives for which the said project was started. The said project was also being implemented in the VIIth Five Year Plan and curing the years 1986-87 to 1989-90 the activities were being carried on by the respondent No. 1-Corporation in the State of Gujarat. However, since 1990-91 the Government of India revised the guidelines so as to implement the project in more areas and as against 16/17 talukas it was decided to implement the project in about 168 talukas in the State of Gujarat and now under the new guidelines issued by the Central Government it directed the respondent-Corporation to engage apprentices and para 2.9 of the said guidelines infer alia read as under:

Selection of a post-graduate in Agriculture as apprentice to be apprentice to be attached to each watershed development team (WOT) for a period of one year at 'a fixed monthly stipend of Rs. 2,500/- p.m. Preference should be given to local residents while selecting the candidates for apprenticeship. A structured training and reporting programme to be adhered to by this apprentice is being processed and would be sent to you shortly. Kindly ensure that this post-graduate in Agriculture is fully utilised in the management functions of the watershed development team (WDT).

The idea of engaging apprentices is to enable them to take practical training and in that process he may assist the Agricultural Officer-Class II who is designated as Watershed Development Team Leader. It is only because of the guidelines of the Government of India that the respondent-Corporation started engaging apprentices. The idea behind engaging apprentices was to enable the post-graduates to have practical training and the idea was not to continue such apprentices by permanently employing them in the services of the Corporation.

17. With the aforesaid objective in mind, it would be proper to refer to the terms and conditions of apprenticeship contract which are produced by the respondent-Corporation as well as by the petitioners. Firstly, it shall have to be noted that pursuant to the advertisement inviting applications for apprentices the petitioners have applied for the post of apprentice. Initially the advertisement was confined for apprenticeship for four months only. The petitioners applied pursuant to such advertisement and they were engaged as apprentices for a period of four months only. However, when the guidelines for the above project were received from the Central Government the existing apprentices as well as the apprentices who were to be engaged were informed that their period of contract would be of one year only from the date of joining as apprentices. The contract of apprenticeship also specifically mentions the period for which the petitioners were engaged. The contract also further stipulated that the candidates shall have to work as apprentices for a period of one year and at the expiry of one year he shall be automatically treated as terminated. It is further stipulated that the candidate shall not be entitled to any other benefits, the existing or thereafter to be declared, which are available to the regular employees such as, DA, Medical Allowance, PF, Gratuity, Group Insurance etc. It is further stipulated in the contract that no other benefits which are available to the regular employees, such as, CL and other leave will be applicable. The terms and conditions of contract are also in Gujarati language and are read by each of the petitioners and are signed by each petitioner. The contract, therefore, prima facie, appears to be a contract of apprenticeship with an object of giving practical training to fresh post-graduates from Agricultural Universities for a period of one year at a stipend of Rs. 2,500/- per month. Since 1991 the respondent No. 1-Corporation has started the practice of engaging apprentices it has desired to strictly follow the practice solely with a view to giving training to fresh post-graduates. Immediately on termination of first year the respondent-Corporation wanted to employ fresh post-graduate from Agricultural University and in fact more than 111 fresh post-graduates from Agricultural University are now available for getting training as apprentices. If the petitioners are permitted to contend that master-servant relationship was created by the aforesaid contract between them and the respondent-Corporation the entire project would fail and the idea of giving training to fresh postgraduates would fail with the result that no expert in the field of watershed shall be available. It cannot therefore be said that the apprenticeship contracts are mere camouflage or subterfuge so as to deny the status of Government servant to the present petitioners. In fact, the respondent-Corporation never wanted to employ the petitioners as its regular employees. The advertisement is very clear. Subsequent circular which is issued is also very clear. The contract of apprenticeship executed by each petitioner is also very clear. At no point of time the petitioners were treated as regular employees of the respondent-Corporation.

18. Under the terms of contract of Apprenticeship under which the petitioners were engaged by the respondent-Corporation they were mere trainees for a period of one year and the respondent-Corporation was not bound to employ them in their work after the training period was over. Such apprentices cannot be said to be employed in the work of the respondent-Corporation or in connection with the work of the respondent-Corporation more so when they were not given wages and they were simply given stipend and when they were not entitled to any other benefits which were otherwise available to the regular employees. The dominant object of the entire transaction is the contract of apprenticeship and the respondent-Corporation was to impart training as desired by the Central Government under the guidelines issued by the Central Government on the terms and conditions stipulated in the guidelines and the dominent object on the part of the petitioners was to accept such training under certain terms and conditions which were specifically agreed upon by them. The fact that stipend was paid during the apprenticeship would not make any difference. The payment of stipend every month for a period of one year would not convert the contract of apprenticeship to that of a contract of service. Such a person who has agreed and entered into a contract of apprenticeship remains to be a trainee or learner and is not an employee. It is inherent in the word 'apprentice' that there is no element of employment as such in a trade or industry.

19. In the case of the Employees' State Insurance Corporation and Am. v. Tata Engineering & Locomotive Co. Ltd. and Anr., reported in : (1976)ILLJ81SC identical question arose before the Supreme Court when the Court was called upon to decide as to whether the persons employed as apprentices by Employees' State Insurance Corporation under specific agreement of apprenticeship can be said to be regular employees of the Corporation. By reference to certain terms and conditions of contract of apprenticeship it was sought to be contended before the Supreme Court that on completion of period of apprenticeship the trainee would become the regular employees and that the relationship between the Corporation and the trainee was that of master and servant. Having examined the scheme of the Act, and more particularly, the terms and conditions of the contract the Court ascertained the meaning of the 'apprentice' by reference to Employees' State Insurance Act, 1948. The Court found that by the term 'apprentice' the relationship of master and servant is not established. The Court found that etymologically, as a matter of pure English, it would mean 'to undergo the training of apprentice'. According to 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'. The Court also referred to Halsbury's Laws of England wherein a while dealing with the nature of the relationship of master and servant it is observed as under:

By a contract of apprenticeship a person is bound to another for the purpose of learning a trade or calling, the apprentice undertaking to serve the master for the purpose of being taught, and the master undertaking to teach the apprentice. Where teaching on the part of 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 docs 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.

The heart of the matter in apprenticeship is, therefore the dominant object and intent to impart on the part of the employee 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 a regular employee under the employer. Such a person remains a learner and not an employee. An examination of the provisions of the entire agreement leads us to the conclusion that the principal object with which the parlies 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.

The Court, therefore, found that in the word 'apprentice' it is inherent that there is no element of employment as such in a trade or industry but only on adequate well guarded provision for training to enable the trainee after completion of his course to be suitably absorbed in earning employment as a regular worker.

19A. Based on the aforesaid decision and the reasoning as has found Favour with the Supreme Court it can be said that the relationship between the petitioners and the respondent No. 1-Corporation is not that of master and servant and at no point of time such relationship was created. The contract between the petitioners on the one hand and the respondent' Corporation on the other hand was a contract of apprenticeship pure and simple under which the petitioners were to be given training for a specified period. In fact, the other terms and conditions which are agreed upon by the petitioners will leave no room for doubt that the petitioners were not to be treated as regular employees of the respondent-Corporation so as not to intend other benefits available to regular employees to the petitioners. The petitioners have also specifically agreed to stipulation that on the expiry of period of one year the contract of apprenticeship shall automatically expire and in the present case on termination of such period respondent-Corporation wanted to employ fresh postgraduate students as apprentices consistent with the scheme. The Corporation has never made any one of them permanent and has not offered any permanent employment to any one of them inasmuch as the inherent idea of the Corporation was to impart training to fresh post-graduates from Agricultural University. It is, therefore, clear that the respondent-Corporation has applied the concept of apprenticeship which is a well-known concept and has incorporated terms and conditions in the contract which were consistent with contract of apprenticeship. No relationship of master and servant is created and that was neither the intention of the petitioners nor the intention of the respondent-Corporation at the time when contracts were executed.

19B. The questions raised in this petition can be viewed from another angle also. Assuming fur the time being that the petitioners were engaged in the employment for a period of one year only subject to some terms and conditions in the contract of employment it shall have to be seen as to whether a contract of permanent employment is entered into or as to whether the petitioners can claim any better rights than those Hewing from the contract of employment. The contract of employment, i.e., contract of apprenticeship executed by each petitioner is very specific. It is operative for a period of one year from the date of their appointment as apprentice. Such period of one year was to expire in the month of January, 1991. When consistent with the terms and conditions of contract their employment was to come to an end the petitioners have rushed to the Court. The question is as to whether he petitioners have any right and can claim any better right than which is guaranteed to him under the contract of employment? In this connection reference can be made to the decision of the Division Bench of this Court in the case of Physical Research Laboratory v. Dr. Mukulsinha, reported in 1989 (1) GLH 235 : 1988 (2) GLR 1355. Before the Division Bench the question was as to whether the appointment of respondent (original petitioner) Dr. Mukulsinha was for a temporary period, or whether it was a permanent appointment? If the appointment was permanent the procedure for terminating the employment was required to be followed. However, if it was held to be temporary for a fixed duration, it was contended before the Division Bench, the procedure was not required to be followed. On the terms and conditions of contract the Court found that the appointment of the original petitioner was for a temporary period. The post of Scientist was not a permanent post. Nobody was appointed on such post for a period of more than 1, 2 or 3 years.

The Court found that entering into such type of service contract was not illegal and was not prohibited by any law. The Court found that while entering into such a contract the management never wanted to get over any provision of law or to avoid any legal responsibility arising out of the relationship of employer-employee. The Court found that in the said case the appointment of Dr. Mukulsinha came to end by afflux of time by expiry of term of contract of service and such termination of service arising from termination by afflux of time cannot be said to be termination by way of punishment.

20. Based on this principle it is submitted by the learned Advocate for respondent-Corporation that the contract in the present case being purely one of apprenticeship for a specific period the petitioners have no right to continue with the respondent-Corporation for more than a period of one year. Their services have already come to an end by afflux of time and it is not a termination by way of punishment. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. Approbating some of the conditions of the said contract of apprenticeship and reprobating the rest of the conditions which arc disadvantageous cannot be permitted. The present petitioners therefore having applied for the post of apprentices pursuant to advertisement and having signed the contract of apprenticeship with terms and conditions stipulated therein cannot now be permitted to contend before the Court that in fact the relationship of master and servant was created between them and the Corporation. The contract of apprenticeship being for a specific period same has expired by afflux of time. It was a pure and simple contract of apprenticeship. Such a contract of apprenticeship is not prohibited by law. On expiry of period of one year said contract has come to an end The petitioners have no right therefore to claim their continuance as apprentices in the respondent No. 1-Corporation by virtue of any order of this Court. In the aforesaid decision in the case of Dena Nath (supra) under Contract Labour (Regulation & Abolition) Act, 1970 the Supreme Court in terms observed that no petition under Article 226 of the Constitution of India can be entertained at the instance of employees No mandamus can be issued for deeming the contract labour has become the employee of principal employer. Similarly, no writ of mandamus or any declaration can be issued by this Court deeming the apprentices having become the employees of the respondent No. Corporation.

21. Mr. Vakharia, learned Counsel for petitioners has further submitted that the appointment of the petitioners as apprentices was only upto 31st March, 1991, and thereafter the petitioners have continued to work as apprentices without any written intimation, and therefore, the petitioners have become permanent employees of the respodnent-Corporation. He further submits that the work is available and the work is of permanent nature and therefore the respondent-Corporation can very well employ the petitioners. I do not find any substance in this submission for the simple reason that when the first advertisement was issued the apprentices were to be employed only for a period of four months and therefore the engagement was restricted to 31st March, 1991. However, in the meanwhile, further instructions were issued by the Central Govt. and immediately thereupon the respondent-Corporation has issued circular on 27th March, 1991. The said circular was issued to all the concerned officers and it was applicable to all apprentices who were already engaged since December, 1990/January, 1991. All the petitioners were specifically informed that their employment would now be for a period of twelve months from the date of their appointment and that upon completion of a period of one year they will be relieved. The petitioners did not dispute the receipt of such instructions. The petitioners have at no point of time objected to such instructions. They have not challenged such instructions. They have enjoyed the benefits flowing from such instructions, namely, that they shall be employed for a period of one year as apprentices. The petitioners who were recruited subsequently have entered into contract of apprenticeship for a period of one year with full knowledge that they were being employed as apprentices for a period of one year. It would not, therefore, be open to the petitioners to contend now that they have become permanent employees or that the work is of permanent nature. In view of my finding that the method of appointing apprentices for the purpose of giving training to fresh post-graduates of Agricultural University was not a device or camouflage or subterfuge adopted by the respondent-Corporation for the purpose of denying permanent employment. I do not find any substance in this submission of Mr. Vakharia and the same shall have to be rejected.

22. Lastly, it was submitted by Mr. Vakharia that the petitioners were ready and willing to work on next below post to Supervisor. He has submitted that the petitioners were ready and' willing to work on any rost which may be offered to them by the Corporation. He submitted that the petitioners have become age-barred and would not get any employment anywhere and therefore they should not be permitted to be terminated. Consistent with the scheme the trainees who successfully completed their training may be absorbed by the Agricultural University, the State Government or other institutions. Since the petitioners have completed the training to the satisfaction of the respondent-Corporation they shall have now to apply for appropriate job in any post in the State Government, Agricultural University or other institutions but they cannot be permanently imposed upon the respondent-Corporation so as to deny to fresh post-graduates of M.Sc. (Agrl.) the training which Would make them fit for future employment. In fact such scheme of giving intensive training to post-graduate students is to be encouraged and if such trainees are foisted upon the Corporation or the institution as their employees no institution would undertake a task of providing training and the question of unemployment would not be solved thereby. The very purpose of imparting training after the education would be frustrated. Since this Court does not find the object of the Corporation to be of employing persons and since I am of the opinion that the object is to impart training simplicitor to the fresh post-graduate students and since the entire scheme is not found to be camouflage/subterfuge by this Court, I do not think I would be justified in directing the respondent-Corporation to permanently employ the petitioners.

23. However, in the interest of justice till the petitioners can apply for other employment somewhere and can get better employment it is directed that the petitioners shall not be terminated upto 15 April, 1992 and thereafter it shall be open to the respondent No. Corporation to employ the fresh apprentices under the scheme

24. In the result, petitions fail and same are dismissed. Rule is discharged in each petition with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //