P.S. Narayana, J.
1. The petitioner-Vijayalakshmi Insecticides and Pesticides Limited, hereinafter referred to as Management, filed W.P. No. 3499/2002 questioning the award dated 3-12-2001 made by the Industrial Tribunal-cum-Labour Court, Visakhapatnam - 1st respondent herein, in I.D. No. 198/99. In W.P. No. 3532/2002, the same petitioner questioned the award made by the 1st respondent in I.D.No.199/99 dated 3-12-2001. Likewise, the self-same petitioner in W.P. No. 3554/2002 questioned the award made in I.D. No. 102/2000 dated 3-12-2001. 2nd respondent in all these writ petitions had invoked the jurisdiction of the 1st respondent raising industrial dispute under Section 2A of the Industrial Disputes Act, 1947, hereinafter referred to as 'Act' in short. Though separate awards were made by the Industrial Tribunal-cum-Labour Court, Visakhapatnam since common questions of law and fact are involved in all these three writ petitions, they are being disposed of by a Common Order.
Facts in brief:
2. W.P. No. 3499/2002: The 2nd respondent filed I.D. No. 198/99 under Section 2A(2) of the Act to regularize his services by reinstating him with backwages. The case of the 2nd respondent in nutshell is that he worked as Casual Labour under a contractor V.V.S. Subba Raju, at the plant of the petitioner/Management at Eethakotta from July, 1995 to August, 1997 on monthly wages and later the 2nd respondent was appointed as Trainee Helper by the Management by order dated 30-8-1997 for one year on payment of consolidated amount of Rs. 1,300/- per month subject to extension of further period and also regularization as per the decision of the Management subject to the satisfaction of the work. The 2nd respondent worked as Casual Labour for two years and while working as Trainee Helper an opportunity was given by extending his services from 30-8-1998 to 30-3-1999. The 2nd respondent's services were terminated on 30-3-1999 and he made a representation and also issued notice dated 27-5-1999. The writ petition was opposed by the Management taking a specific stand that the 2nd respondent cannot invoke the jurisdiction of the Industrial Tribunal or Labour Court since he being only a Trainee, the definition of 'workman' under the Act is not attracted and hence no relief can be granted. The Industrial Tribunal-cum-Labour Court, Visakhapatnam after recording the evidence of WW-1, MW-1 and MW-2 and marking Exs.W-l to W-9 and Ex.M-1 granted the relief in favour of the 2nd respondent on the ground that the Trainee also is an 'apprentice' and hence he falls within the meaning of 'workman' in view of the definition in Section 2(s) of the Act. Aggrieved by the same, the Management had preferred the aforesaid writ petition.
W.P. No. 3532/2002:
3. The 2nd respondent filed I.D. No. 199/99 on the file of the 1st respondent under Section 2A(2) of the Act to regularize his services by re-instating him with backwages. The 2nd respondent filed I.D. No. 198/99 under Section 2A(2) of the Act to regularize his services by reinstating him with backwages. The case of the 2nd respondent in nutshell is that he worked as Casual Labour under a contractor V.V.S. Subba Raju, at the plant of the petitioner/Management at Eethakotta from July, 1995 to August, 1997 on monthly wages and later the 2nd respondent was appointed as Trainee Helper by the Management by order dated 30-8-1997 for one year on payment of consolidated amount of Rs. 1,300/- per month subject to extension of further period and also regularization as per the decision of the Management subject to the satisfaction of the work. The 2nd respondent worked as Casual Labour for two years and while working as Trainee Helper an opportunity was given by extending his services from 30-8-1998 to 30-3-1999. The 2nd respondent's services were terminated on 30-3-1999 and he made a representation and also issued notice dated 27-5-1999. The writ petition was opposed by the Management taking a specific stand that the 2nd respondent cannot invoke the jurisdiction of the Industrial Tribunal or Labour Court since he being only a Trainee, the definition of 'workman' under the Act is not attracted and hence no relief can be granted. The 1st respondent-Industrial Tribunal-cum-Labour Court, Visakhapatnam after examining WW-1, MW-1 and MW-2 and marking Exs.W-1 to W-12 and M-l granted the relief in favour of the 2nd respondent and the Management aggrieved of the same had filed the present writ petition.
W.P, No. 3554/2002:
4. The 2nd respondent filed I.D. No. 102/99 on the file of the 1st respondent under Section 2A(2) of the Act praying for regularization of services and re-instatement with backwages. The case of the 2nd respondent is that he worked as Trainee Helper at Eethakotha plant of the Management from 1-9-1997 to 31-3-1999 on monthly wages of Rs. 1310/-. He worked for one year and his training was extended from 1-4-1998 to 31-3-1999 and on 31-3-1999 his services were illegally terminated. The 1st respondent -Industrial Tribunal-cum-Labour Court examined WW-1 and MW-1 and MW-2 and marked Exs.W-1 to W-5 and Ex.M-1 and ultimately made an award granting the relief of re-instatement with backwages and continuity of service. Aggrieved by the same, the Management had filed this writ petition.
Submissions of Sri Sridharan:
5. Sri Sridharan, the learned Counsel representing the petitioner in all these writ petitions - Management, in his own soft style made the following submissions. The learned Counsel maintained that the parties shown as 2nd respondent in these writ petitions are only Trainees and hence they do not fall within the meaning of 'workman' under Section 2(s) of the Act. The learned Counsel also submitted that the Industrial Tribunal cannot entertain the industrial dispute at all since the provisions of the Act are not attracted. Even if a Trainee is equated with a Probationer, he cannot get the relief of re-instatement with backwages and continuity of service. Elaborate submissions were made by drawing the attention of this Court to different provisions of the Act and also the relevant decisions relating thereto.
Submissions of Sri Srinivasa Sharma:
6. Sri Srinivasa Sharma, the learned Counsel representing the 2nd respondent in all these writ petitions, hereinafter referred to as 'Trainees' in short, on the contra would maintain that in the light of the duties transacted by these parties, they fall within the definition of 'workman' under the Act and hence the Industrial Tribunal has jurisdiction to entertain the industrial disputes as against the illegal termination in view of the provisions of the Act. The learned Counsel while elaborating his submissions had well explained the scope and ambit of the definition of 'workman'. The learned Counsel had drawn the attention of the Court to the relevant provisions of the Act and also to the decisions relating thereto.
7. Heard both the Counsel. Perused the oral and documentary evidence on record and the findings recorded by the Industrial Tribunal-cum-Labour Court, Visakhapatnam in all these industrial disputes.
8. The petitioner/Management in all these writ petitions is a Public Limited Company incorporated under Companies Act, 1956, having its Registered Office at Plot No. 61, 1st Floor, Nagarjuna Hills, Panjagutta, Hyderabad and the Company/ Management is engaged in the business of manufacture and sale of pesticides and insecticides and for this purpose it has a Factory located at Ethakota Village, East Godavari District wherein the Management employs number of persons. Every employee engaged directly or indirectly in relation to production has to be skilled in handling the materials which are extremely poisonous. Hence there is a need for training. Accordingly, these Trainees styled as Trainee Helpers had been taken by the Management. Ex.W-1 in all these matters is the letter of appointment and the relevant portion reads as hereunder:
'You will be initially on training for a period of one year from the date of joining which may be extended. If you are not confirmed in writing on completion of your training, your training will be deemed to have been extended. During the initial as well as the extended training period, if any, your services are liable to be terminated without notice or without assigning any reason.
Subject to your performance during the training period, initial or extended as the case may be, you will be absorbed in the regular cadre of the Company as the decision of the Management in this regard shall be final.'
It is not in dispute that these Trainees had worked for the said period and subsequently performance had been reviewed and their training period was extended. But however, ultimately the Management not being satisfied with the performance even in the extended period ultimately had terminated the services of these Trainees and the same had been assailed by invoking the jurisdiction of the 1st respondent in the aforesaid industrial disputes.
9. The factual matrix as referred to supra is almost common in all these writ petitions. It is not in dispute that all these are Trainees and the period was extended, but ultimately, their services being found unsatisfactory had been terminated. Section 2A of the Act dealing with Dismissal etc., of an individual workman to be deemed to be an industrial dispute, reads as hereunder:
(1) Where any employer discharges, dismisses, retrenches or otherwise terminates the service of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.
(2) Notwithstanding anything in Section 10, any such workman as is specified in subsection (1) may, make an application in the prescribed manner, direct to the Labour Court for adjudication of the dispute referred to therein; and on receipt of such application, the Labour Court shall have jurisdiction to adjudicate upon any matter in the dispute, as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act, and accordingly all the provisions of this Act shall apply in relation to such dispute as they apply in relation to any other industrial dispute.
Section 2(s) of the Act defines 'award' and Section 2(k) of the Act defines 'industrial dispute'. Section 2(oo) of the Act defining 'retrenchment' reads as hereunder:
'retrenchment' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf;
(bb) termination of the service of the workman as a result of the non-renewal of the contract of the employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health;
Section 2(s) of the Act defines 'workman' as hereunder:
'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, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or, as a consequence of, that dispute, or whose dismissal, discharge or retirement has led to that dispute, but does not include any such person--
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950X or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him functions, mainly of a managerial nature.
Section 25F of the Act dealing with Conditions precedent to retrenchment of workman, reads as hereunder:
'No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until:
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.
As already referred to supra, Ex.W-1 is the appointment order of all these Trainees and the Training period had been specified and no doubt the services were extended for some more time, but ultimately they were found unsatisfactory and the Management had decided to terminate the services of these Trainees. In Dharangadhra Chemical Works Limited v. State of Saurashtra and Ors., : (1957)ILLJ477SC , it was held that the essential condition of a person being a workman within the terms of this definition is that he should be employed to do the work in that industry, that there should be in other words, an employment of his by the employer and that there should be the relationship between the employer and him as between employer and employee or master and servant and unless a person is thus employed there can be no question of his being a workman within the definition of the term as contained in the Act. In Thungabhadra Sugar Works P. Ltd v. Presiding Officer, Labour Court, 1983 (46) FLR 190, the Division Bench of Karnataka High Court held:
'It is clear from the definition of 'workman' that any person including an apprentice can be regarded as a workman if he is employed in any industry to do any skilled or unskilled manual, supervisory, technical work for hire or reward. In other words, the existence of the relationship of an employer and an employee is of the essence of the matter. The employment has necessarily to be in respect of an industry. Any person, whether he is an apprentice or not, can be regarded as a workman only if he is employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment are express or implied. It is therefore, clear that it is not enough to establish that the person claiming such a status is an apprentice. Whether the person claiming status as a workman is an apprentice or any other person, it has to be established that he is employed in an industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment are express or implied.'
In S.K. Maini v. Corona Sahu Co., Ltd, and Ors., 1994 (2) LLJ 1153, it was held:
'The question whether an employee is a workman under Section 2(s) of the Act is to be determined with reference to his principal nature of duties and functions. It is to be determined with reference to the facts and circumstances of each case on the basis of the circumstances and facts and the materials on record and it is not possible to lay down any straight-jacket formula. When an employee is doing the types of works enumerated in the definition in Section 2(s), there is hardly any difficulty in treating him as a workman, but in a large number of cases employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition or goes out of it.'
In Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay, : (1985)IILLJ401SC , it was held :
'Where an employee has multifarious duties and a question is raised whether he is a workman or some one other than a workman the Court must find out what are the primary and basic duties of the person concerned and if he is incidentally asked to do some other work, may not be necessarily be in tune with the basic duties these additional duties cannot change the character and status of the person concerned. In other words, the dominant purpose of employment must be first taken into consideration and the gloss of some additional duties must be rejected while determining the status and character of the person. The definition of the expression workman clearly shows that the person concerned would not cease to be a workman if he performs some supervisory duties but he must be a person who must be engaged in a supervisory capacity,'
In Ahmedabad Mfg. and Calico Ptg., Co.. Ltd, v. Ramtahel : (1972)IILLJ165SC , it was held that the workers in order to come within the definition of 'employee' need not necessarily be directly connected with the main industry. In K. Dasarath v. Labour Court-I, Andhra Pradesh, Hyderabad (W.P. No. 14787/96 decided on 27-3-2002), 2002 LLR 945, one of us (P.S.Narayana.T) while dealing with the aspect of probationer and termination of services and validity thereof, had arrived at the conclusion that though the probation of the petitioner/ workman was extended twice, the same cannot be taken as deemed confirmation and hence the order of termination cannot be interfered with. In Kalyani Sharp India Ltd. v. Labour Court No. 1, Gwalior, : (2001)ILLJ1346SC , the Apex Court while dealing with termination of services without notice of a Trainee technician had arrived at the conclusion that such termination before the expiry of probationary period without issuance of any prior notice will not amount to retrenchment and hence the same is not illegal. In the said decision, the Apex Court had referred to and followed the decisions in Escorts Limited v. Presiding Officer, : (1997)11SCC521 , and M. Venugopal v. Divisional Manager, LIC of India, : (1994)ILLJ597SC . In Kamal Kumar v. J.P.S. Malik, Presiding Officer, Labour Court, 1998 (79) FLR 965, the Delhi High Court held:
'It is no doubt true that Section 2(s) of the Act also uses the expression 'apprentice', but merely using the word 'apprentice' within the definition of 'workman' in my considered opinion, cannot confer a right on a trainee to be called a 'workman' within the meaning of Section 2(s) of the Act. When the said definition is looked into closely, it is apparent that an apprentice could be a workman under Section 2(s) of the Industrial Disputes Act, if he is employed to do any manual, clerical, supervisory or technical work.'
In Management of Otis Elevator Co. Ltd. v. Presiding Officer, Industrial Tribunal-Ill, 2003 (98) FLR 53, it was held that a Trainee engaged by the petitioner-company does not fall within the definition of workman.
10. In view of the settled position, we need not be detained any longer on the question raised as controversy by the present Trainees. Since the factual aspects are not in dispute, we are of the considered opinion that the evidence of WW-1 and WW-2 and MW-1 and MW-2 and the exhibits marked as W-series and Ex.M-1 need not be dealt with in detail since those are all factual aspects and the said facts are not in controversy. In the light of the foregoing discussion, we are of the considered opinion that the Management is bound to succeed in view of the settled legal position and the awards made by the 1st respondent in ID. Nos. 198/99, 199/99 and 102/2000 made by the Presiding Officer, Industrial Tribunal-cum-Labour Court, Visakhapatnam; are hereby quashed. The writ petitions are accordingly allowed. However, in the facts and circumstances of the case, this Court makes no order as to costs.