U.P. STATE ELECTRICITY BOARD v. SHRI SHIV MOHAN SINGH AND ANR

Citation: [2004] SUPP. 4 S.C.R. 953

Court: Supreme Court of India

Bench: N. SANTOSH HEGDE, S.B. SINHA, A.K. MATHUR

Case summary

U.P. STATE ELECTRICITY BOARD v. SHRI SHIV MOHAN SINGH AND ANR.pdf

Judgment text

U. P. STATE ELECTRICITY BOARD v. SHRI SHIV MOHAN SINGH AND ANR. OCTOBER 1, 2004 [N. SANTOSH HEDGE, S. B. SINHA AND A. K. MATHUR, JJ. ] Apprentices Act, 1961: Sections 18, 2(r), 2(aa), 2(aaa), 6, 7, 20, 21 and 22-Contract of apprenticeship-Appointment of, apprentice trainee-Nature and character of-Held: Apprentice trainee enters into contract to serve for fixed period on fixed stipend-Apprentice is a trainee and his position will not change to workman under employer where he is undergoing apprenticeship training- Obligation of employer-Held: Employer is only under an obligation to impart training and pay stipend and not to accept the apprentice as his employee and confer the status of workman-There is no relationship of master and servant or employer and employee.

Sections 4(4)--Contract of apprenticeship-Non-registration of, with Apprenticeship Advisor by employer-Effectof-Held: Registration ofcontract with Apprenticeship Advisor ispurely an administrative act-Non-registration ofcontract will not render the contract invalid-Status of apprentice does not change to that ofa workman irrespective ofthe contract being registered or not.

Section 4(4)--Contract ofApprenticeship shall be sent by employer to Apprenticeship Adviser for registration-Expression 'shall '-Inte1pretation of, mandatory or directory-Held: Interpretation ofexpression 'shall' in any enactment depends upon the context in which it appears and its effect thereof-From social legislation point ofview expression 'shall' in section 4(4) should be construed as directory because it will be for the benefit of apprentice-Treating it as mandatory will be more counter productive to the interest of apprentices-Also no penalty is provided for breach of nonregistration-Thus, expression 'shall' cannot be construed to be mandatory and is directory-Interpretation of Statutes. Object ofthe Ac1-Held: Is to recruit apprentices and train them for developing a strong industrial base. Industrial Disputes Act, I947 and UP.

Industrial Disputes Act, 1947- Application of, to Apprentices Act, I96I-Held: Expression 'workmen' under Section 2(z) and 2(s) includes apprentice but is not applicable to apprentice appointed under Apprentices Act, 196I-Reading definition ofapprentice in sections ~(aa) and 2(r) with section I8, it is clear that Apprentice Act which is a special Act, does not cover workman and labour laws are not applicable to apprentice-As such application ofLabour Laws is excluded and labour Court/Industrial Tribunal will not have jurisdiction to entertain any dispute arising therefrom-Disputes are to be resolved under Section 20 of the Apprentice Act-Sections 2(aa), 2(r), I8 and 20-Industrial Disputes Act, I947, section 2(s)-UP. Industrial Disputes Act, I947, section 2(z). The question which arose for consideration in these appeals filed by the apprentices and the employers is with regard to the scope of Apprentices Act, 1961 vis-a-vis the U. P.

Industrial Disputes Act, 1947, the Industrial Disputes Act, 1947 and the Indian Boilers Act, 1923. Incumbents, in these appeals were appointed as apprentice trainees in the designated trade except for few who were appointed otherwise. The contract of apprenticeship was drawn for the incumbents except few of them. In majority of the cases the contract was not registered with the Apprenticeship Adviser and on completion of training their services were terminated. Respondents raised industrial dispute claiming status of worker under the Apprenticeship Act, 1961, benefit of section 25-F of the Industrial Disputes Act, 1947 or under section 6N of the U. P. -- Industrial Disputes Act, 1947. U. P. State Electricity Board contended that if an incumbent is appointed as an apprentice trainee and contract Of apprenticeship has not been registered, incumbent does not cease to be an apprentice and his position does noi become that of a workman.

Apprentice trainees contended that the word 'shall' appearing in sub-section 4 of section 4 of the 1961 Act means that the registration of the contract is mandatory and if the contract of apprenticeship under the section is not registered with the Apprenticeship Adviser, contract would cease and the incumbent becomes workman; and that the 1961 Act is a welfare legislation, and it should be construed liberally for the benefit of the workman. U. P. STATE ELECTRICITY BOARD v. S. M. SINGH 955 Allowing the appeals of the employers and dismissing of the appeals of the apprentices, the Court HELD: Per A. K. Mathur, J (for himself and N. Santosh Hegde, J. ): 1. 1.

A combined reading of the sections 2(aa), 2(r), 6, 7, 18(b), 21and 22 of the Apprentices Act, 1961 as well as the Rule 11 of the Apprentices Rules, 1962 makes it clear that the contract of apprenticeship is entered with the employer and apprentice, and the apprentices are only the persons who undergo training and during the training they are entitled to get a particular stipend, they have to work for fixed hours and at the end of period of training they have to appear in the test and a certificate is issued to them as per section 21 of the Act. During the training period he will be treated as an apprentice and he shall not be deemed as a workman as per Section 18 of the Act read with definition of 'workman' under section 2(r). (973-D-E-F; 973-A-B) 1. 2. There is no obligation on the part of the employer to give the apprentices any employment whatsoever and give them a status of workmen.

Only obligation on the part of the employer is to impart them training as per the provisions of Act and the Rules and to pay them stipend as required under Rule 11. There is no relation of master and servant or employer and employee. It is open for the employer to offer him employment but it will not be obligatory on the part of the apprentice to serve that employer as per Section 22 except when there is specific condition of contract to that effect. (973-E, F, G, C-D] 1. 3. Sub-section (4) of section 4 only lays down that contract of apprenticeship should be registered with the Apprenticeship Adviser which is purely an administrative act so that he can monitor and keep a record thereof. Non-registration will not renderthe contract as invalid resulting in change ofstatus ofan apprentice to that ofa workman.

It is more than clear from the scheme of the Act, the apprentice is recruited for the purpose of training as defined in section 2(aa) of the Apprentices Act, 1961, that an apprentice is a person who is undergoing apprenticeship training in pursuance ofa contract ofapprenticeship and the apprenticeship training has been defined under section 2(aaa). Therefore, reading of all these provisions ofthe Act and Rules together makes it clear that the nature and character ofapprentice is that oftrainee only and will not change to that of workman under the employer where he is undergoing the apprenticeship training. This is irrespective ofthe fact that the contract was registered or not. [977-E-F; 978-H; 979-A) 3. 1. The Objects and Reasons reveal that the Act was enacted for the purpose of recruiting the apprentices for developinp, a strong industrial base for which trained man power is essential.

The purpose is to train the people for employing them in the industries; it was never the intention that those trained candidates automatically become the workmen. Therefore, the intention of the Act is basically to recruit and train persons capable of being employed in the industries. (979-B-D) 3. 2. With regard to the interpretation of the expression 'shall' appearing in any enactment, one has to see the context in which it appears and the effect thereof. The interpretation of the expression 'shall' appearing in sub-section (4) of section 4, as mandatory, depends upon the context in which it appears. [979-B) 3. 3. Ifthe contract ofapprenticeship is to be treated as a mandatory and contract· is not sent to the Advisor then the effect will be that the apprentice will not be entitled to any benefit flowing from the Act. In fact, by treating the expression 'shall' as a mandatory it will be more counter productive to the interest of the trainees rather than for their benefit.

The employer can take a shelter under the plea that since the contract of employment has not been registered with the Apprentice Adviser, he is not under any obligation to pay stipend or impart training to the apprentke trainees. Had that been the intention of the Legislature then they would have provided the necessary penalty for breach of nonregistration of the contract of apprenticeship but the non-registration of the contract has not been construed to be an offence so as to expose the employer for any penalty. Therefore, the expression 'shall' appearing in sub-section (4) of section 4 of the Act cannot be construed to be mandatory and is directory. [979-G-H; 980-A-B, D, F] f. T. Rajan v. T. P. M Sahir qnd Ors. , [2003) 8 SCC 498, relied on. 3. 4. Social legislations are primarily meant for welfare of the particular section of the society and it should be construed liberally so as to advance the cause· of the public at large. Viewing from social U. P. STATE ELECTRICITY BOARD v. S.

M. SINGH 957 legislation point of view the word 'shall' appearing in section 4(4) cannot be construed to be mandatory and it is directory because it will be for the benefit of the apprentice trainee; otherwise it will be oppressive to the welfare of the apprentice. [981-F, G, BJ Secretary, HSEB v. Suresh and Ors. , [1999) 3 SCC 601; Air India Statutory Corpn. and Ors. v. United Labour Union and Ors. , [1997] 9 SCC 377 and Steel Authority ofIndia Ltd v. National Union Waterfi·ont Workers, [2001) 7 sec 1, referred to. 3. 6. The definition of the word 'workman' in Section 2(z) ofthe U. P. Industrial Disputes Act, 1947 and Section 2(s) of the Industrial Disputes Act, 1947 includes apprentice but the expression 'workman' appearing in section 2(z) and section 2(s) are not applicable to the apprentices appointed under the Apprentices Act, 1961. Workmen specifically excludes the apprentices as defined in Section 2(r) as such the trained persons shall not fall in the definition ofworkmen.

The Apprentices Act is a complete code in itself, and it clearly stipulates that in Section 2 (aa) apprentice means a person who is undergoing apprenticeship training in pursuanceofcontract oftraining and the workers are employed for wages for workdone by them. Section 18 clearly mentions that apprentices will not be treated as workmen and will be treated as trainees and the provisions ofany law with respect to labour law shall not apply to or in relation to such apprentices. Therefore, reading of definition of apprentice in Sections 2(aa) and 2(r) read with Section 18 of the Apprentices Act leaves no manner of doubt that the Apprentice Act which is special Act, does not cover the workman and it precludes the application of any other labour laws, i. e. U. P. Industrial Disputes Act and Industrial Disputes Act, 1947.

As such application of these Acts automatically stand excluded and the Labour Court/Industrial Tribunal will not have any jurisdiction to entertain any dispute arising therefrom. If any dispute arises then settlement has to be done by Apprenticeship Adviser as per section 20 and his decision is final. (982-B-C-D-E-F; 977-DJ Hanuman Prasad Choudhary Etc. v. Rajasthan State Electricity Board, Jaipur (1986) LAB I. C. 1014; Bhaskaran v. Kera/a State Electricity Board, (1986) KLT 447 and U. P. State Electricity Board and Ors. v. P. O. Labour Court, Kanpur and Ors. , (1998) 78 FLR 511, approved. Ballkhan Doskhan Joya and Gujarat Electricity Board (2002) 92 FLR ·. , 914; State ofGujarat and Anr. v. Chauhan Ramjibhoi Karsanbhai. (2004) 102 FLR 347 and MP. Electricity Board anc/ Ors. v. Basant Kumar and Ors. , (1989) JLJ 253, disapproved. Per S. B. Sinha, J. (Concurring): . HELD: 1. 1. U. P. Industrial Disputes Act, 1947 is a general law.

The Parliament enacted Apprentices Act, 1961 which is a special law. It deals with the regulation and control of training of apprentices and for matters connected therewith. Therefore, the special statute shall prevail over the general statute having regard to the maxim 'genera/ia specialibus non derogant". (1002-C-E] Ta/cher Municipality v. Talcher Regulated Mkt. Committee & Anr. , [2004) 6 sec 178, relied on. 1. 2. Ifthe language used in a statute is capable of bearing more than one construction, the true meaningthereofshould be selected having regard to the consequences resulting from adopting the alternative constructions. A construction resulting in hardship, 'non-fulfillment of the purpose for which statute has been brought in force, should be rejected and should be given that construction which avoids such results. (1006-E-G) 1. 3.

Having regard to the mischief rule laid down in Heydon 's case that court must adopt a construction which 'shall suppress the mischief and advance the remedy', sub-section (4) of section 4 of the Apprentices Act, 1961 has to be directory. (1006-G; 1007-B] Ashok Leyland Ltd v. State of Tamil Nadu and Anr. , (2004) 3 SCC 1 and Ameer Trading Corporation Ltd v. Shapoorji Data frocessing Ltd, (2004) 1 sec 702, relied on. Heydon's case (1584) 3 Co. Rep. 7a, referred to. 1. 4. Ordinarily, although the word "shall" is considered to be imperative in nature but it has to be interpreted as directory if the context or the intention otherwise demands. (1003-F-G) .... •, Mis. Sainik Motors, Jodhpur and Ors. v. State of Rajasthan, AIR (1961) SC 1480, relied on. U. P. STATE ELECTRICITY BOARD v. S. M. SINGH 959 ,• Crawford on Statutory Construction p 539, referred to. 2. 1.

Only because the expression "shall" has been employed in subsection (4) of Section 4, the same may not be held to be imperative in character having regard to the fact that not only a contract of apprenticeship commences but also in view of the fact that an application ·for registration ofapprenticeship contract is required to be made within a period of three months in terms of Rule 4B of the Apprenticeship Rules, 1962. The Act nowhere provides for the consequences of nonregistration. The _definition of 'apprentice' nowhere states that an apprentice with a view to obtain the benefits of the said Act must also be registered. Section 18 of the said Act says that an apprentice shall not be a worker. It does not say that an unregistered apprentice shall be a worker. (1005-D-E, C-D] 2. 2. Prior to 1973, the provision for registration of contract of apprenticeship with the Apprenticeship Advisor within the period prescribed was mandatory in character.

Only having regard to the delay which has occasioned for registration of contract of apprenticeship, the amendment had been brought about; pursuant whereto or in furtherance whereof the contract of apprenticeship commences, there is no reason as to why the provision should be construed as imperative in character so as to render a contract of apprenticeship a nullity which is possible to be avoided and the object thereof can be achieved by taking recourse to the penal provisions. (1007-C-E] 2. 3. Ifa contract ofapprenticeship is entered into; the violation ofthe terms and conditions thereof, although may lead to penal consequences but the same would not render the contract ofapprenticeship void or illegal.

If in a given case, employer fails to get thecontractofapprenticeship registered and/or fails to carry on his obligations in terms ofSection 11 ofthe Act, he faces penal consequences in terms ofSection 31 ofthe Act, and is also liable to pay compensation for termination of apprenticeship under Rule 6 of the Apprenticeship Rules, 1962. In the ev~nt, the Apprenticeship Advisor obtains information about such violations; he can resolve a conflict by and between an employer and an apprentice, under Section 20. Indisputably, he can issue directions which the employer will have to comply with and on his failure to do so, he would run the risk of being prosecuted in terms of Section ·30 of the Act, but he has not been · conferred with any power to declare such contract ofapprenticeship to be ipso facto void ab initio. [1004-F-H; 1005-A-B, F-G] 2. 4. The contract of apprenticeship like any other contract can be brought to an end by the parties thereto.

Once a contract of apprenticeship commences, the same cannot be brought to an end except in accordance with law. If it is to be held that by reason of nonregistration of such contract of apprenticesnip the contract itself comes to an end, it would be detrimental to the interest of the apprentices, which would frustrate the object of the Act. (1005-B-C] 2. 5. No provision ofthe Actorthe Rules framed thereunder was brought to notice to show that non-registration ofthe contract ofapprenticeship or violation and/or neglect on the part of the employer to comply with the other provisions of the Act would result in invalidation of the contract. Status ofapprentice does not change to that ofa workman only because the contract has not been registered or the employer has not carried out his obligations thereunder. Ifsuch a construction is placed, an apprentice may be held to have ceased to be an apprentice ifhe himselfdefaults in performing his obligations under the contract.

(1006-B-D] Canbank Financial Services Ltd. v. The Custodian and Ors. , (2004) 7 SCALE 495, referred to. 2. 6. It is not a case where any of the apprentices repudiated the contract. Whether a relationship of an employer and workman or an employer and an apprenticeship had been brought about, is essentially a question of fact. The Court while determining such a dispute must consider the factual matrix involved therein in the light of the provisions of the said Act. Once it is held that a contract of apprenticeship entered into by and between the employer and the workman is a genuine one and not a camouflage or a ruse, a presumption would arise that the concerned person is not a workman. (1007-F, G-H] 2. 7.

It is one thing to say that a contract is illegal being opposed to public policy so as to render the same void in terms of Section 23 of the Contract Act but it is another thing to say that by reason of breaches of the terms and conditions thereof by one of the parties it becomes voidable at the instance of the other party to the contract. If a contract U. P. STATE ELECTRICITY BOARD v. S. M. SINGH 96 l is valid in law the breaches thereof would not render it invalid but the · same may only enable a party thereto, who had suffered by reason of such breach, to avoid the contract. Unless the terms and conditions of a contract are avoided by a party thereto the contract remains valid and all consequences flowing therefrom would enure. to the benefit of the parties thereto. In absence of any specific provision in the statute, it cannot be said that in the event of breach by the employer the contract ofapprenticeship shall become a contract of employment.

Such a novation of contract is not contemplated in law. [1008-A-B, E-F) F. C. Shepherd & Co. Ltd. v Jerrom, (1986) 3 All ER 589, referred to. 2. 8. With a view to become a workman, not only the apprentice has to show that he comes within the purview of the definition of the term 'workman' as contained in Section 2(z) of the U. P. Industrial Disputes Act, 1947 but he must further plead and establish that his job is such which fulfil~s the requirements of the said term. [1008-F-G) Mukesh K . Tripathi v. Sr. Divn. Manager LIC and Ors. , JT (2004) 7 SC 232, relied on. 2. 9. It is necessary to ascertain as to how the parties to the contract thought thereabout. Ordinarily, it is impermissible in law for a party to the contract of apprenticeship to allow it to be worked out and then contend that it was a contract of employment. (1009-A-B) Bruton v. London and Quadrant Housing Trust, [1999] 3 All ER 481 and Street v Mountford, (1985) AC 809, referred to. Mitrangshu Roy Choudhary v.

Union ofIndia & Ors. , [1999) 3 SCC 649, relied on. Rajendra Singh and Ors. v. UP. State Electricity Board, Shakti Bhawan, Lucknow and Ors. , (2000) 86 FLR 155; Sri Chittaranjan Das v. Durgapore Project Limited & Ors. , (1995) 2 CLJ 388 and Babula! and Others v. Rajasthan State Road Transport Corporation and Anr. , (2000) 84 FLR 847, approved. Ballkhan Doskhan Joya v. Gujarat Electricity Board, (2002) 92 FLR "· 914 and Ram Dular Paswan and Ors. v. P. O. Labour Court, Bokaro Steel City and Ors. , (1998) 80 FLR 399, disapproved. The Employees' State Insurance Corporation and Anr. v. The Tata Engineering and Locomotive Co. Ltd. and Anr. (1975] 2 SCC 835, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2429 of2003. From the Judgment and Order dated 26. 9. 2002 of the Allahabad High Court in C. M. W. P. No. 21560 of 1995. WITH C. A. Nos. 8386, 7005, 7006,8383,8385,8384,9231,9234,9232,9233, 9679, 9680, 9681, 8683/2003, 122, 14, 1965 and 2193 of 2004. P. K.

Goswami, Rajiv Mehta, B. Aggarwala and Saurabh Srivastava for the Appellant. J. N. Dubey, R. Venkataramani; Anurag Dubey, Ms. Upasana Dubey, K. B. Upadhyay, Ms. Salini Ranjan, Manish Kumar, S. R. Setia, Satya Mitra Garg, Ms. Manju Aggarwal, Ashok Panighari, Imtiaz Ahmed, Ms. Nashma Imtiaz, Kamran Malik, V. N. Raghupathy, Pradeep Misra, Sudhir Kulshrestha for the Respondents. The Judgment of the Court were delivered by A. K. MATHUR, J. : In all these appeals common question of law is involved, therefore, they are disposed of by common order. The main question involved in these appeals is what is the scope of Apprentices Act, 1961 vis-a-vis the U. P. Industrial Disputes Act, 1947, Industrial Disputes Act, 1947 and the Indian Boilers Act, 1923. The Apprentices Act, 1961 was promulgated primarily for the purpose of recruiting the apprentices. The idea behind was strong industrial base across the country.

For the industrial growth it was necessary to have trained man power and for that purpose the apprentices were recruited. The Introduction, Objects and Reasons for enacting this Act reads as under:- INTRODUCTION "After India gained independence, a wave to have its own strong industrial base swept the country. Backed by Government policies, industrial growth had a quantum leap. With the industrial growth a need was felt to have trained man-power and for that steps were taken to arrange for training of apprentices in the industry. After some years it necessitated that the training being imparted to the apprentices should be regulated by legislation. Accordingly the Apprentices Bill, 1961 was introduced in a Parliament to provide for the regulation and control of training of apprentices. STATEMENT OF OBJECTS AND REASONS The question of undertaking legislation for regulating the training of apprentices in industry has been under the consideration of the Government for a long time.

Expert committees which went into the question have recommended such legislation. Although certain establishment in the public and private sectors have been carrying out programmes oftraining ofskilled workers on a systematic basis, industry in general has not as yet fully organized such programmes. In the context of the Five Year Plan and the large scale industrial development of the country, there is an increasing demand for skilled craftsmen. The Government considers that it is necessary fully to utilize the facilities available for the training of apprentices and to ensure their training in accordance with the progr. cmmes, standards and syllabi, drawn up by expert bodies. The Bill is intended to give effect to these objectives. " Now we shall examine the necessary provisions of the Act. Section 2 deals with the definition. Section 2 (aa) defines "apprentice" which means a person who is undergoing apprenticeship training in pursuance ofa contract of apprenticeship.

Section 2 (aaa) deals with "apprenticeship training" which means a course of training in any industry or establishment undergone in pursuance of a contract of apprenticeship and under prescribed terms and conditions which may be different for different categories of apprentices. Section 2 (b) deals with"Apprenticeship Adviser" which reads as under: " 'Apprenticeship Adviser' means the Central Apprenticeship Adviser appointed under sub-section (1) of Section 26 or the State Apprenticeship Adviser appointed under sub-section (2) of that section. " Section 2 (d) defines "Appropriate Government". . Section 2 (e) defines 'designated trade' which means a trade of 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. . ' Section 2 (t) deals with "employer" which means any person who be .

workman and it was reversed by the High Court in a writ petition filed by the Management and rightly so in our view in view of the legal position mentioned above, we do not find any merit in this civil appeal. Same is dismissed. Civil Appeal No. 12212004. Appellant- Ashok Kumar Shukla was appointed in a designated trade as an apprentice Boiler Attendant on 9. 4. 1985 and his services were terminated on 8. 4. 1988. A contract was entered into but not sent for registration to the Apprenticeship Adviser. Labour Court made the award in his favour treating him to be workman and on a writ petition filed by the Management against the award, the High Court allowed the writ petition and set aside the award of the Labour Court holding that since the appellant is appointed as apprentice, therefore he cannot be treated as a workman under. the Industrial Disputes Act, 1947. The view taken by the High Court is correct in· view of the legal position crystalised above.

Hence, we do not find any merit in this appeal. Same is dismissed. No order as to costs. ~ Civil Appeal No. 196512004. Respondent Virendra Kumar Bajpai was appointed on 31. 3. 1986 as . - Cashier under the Apprentices Act, 1961. His services were terminated on 31. 3. 1987. He worked as a Cashier (General) which is not a designated trade. Contract was not sent for registration to the Apprenticeship Adviser. The Labour Court set aside the termination order. Against that a writ petition was '. filed before the High Court and the High Court dismissed the writ petition and the present appeal by way of special leave by the Management. As per the award dated 29. 4. 1994, the respondent himself admits that he was appointed as a Cashier on 31. 3. 1986 under the provisions of the Apprentices Act, 1961 and his services were terminated on 31. 3. 1987 but no registration of the apprenticeship was sent to the Apprenticeship Adviser.

Since it is the case of the respondent himself that he was appointed as apprentice in the Branch as Cashier and his appointment was for fixed period ofone year, we fail to understand how can respondent be given the benefit of Section 6N of the U. P. Industrial Disputes Act, 1947 after the expiry of the period of one year. His services automatically stood terminated and he cannot claim that he has become the employee of the Management. He was a trainee for a period of one year as an apprentice in Cash Branch and after the expiry of the period of one year he cannot claim that he be treated as a workman. In this view ofthe matter, his services stood terminated in 1987 and dispute was raised in 1993. Therefore, the view taken by the Labour Court as well as by the High Court cannot be sustained and accordingly, we allow this appeal, set aside the award dated 29. 4. 1994 made by the Labour Court in Industrial Dispute No. 277/1993 and the order dated 14. 7.

2003 passed by the High Court in Civil Misc. Writ Petition No. 34389/1994. Civil Appeal No. 219312004. Respondent-Sushma Gupta was appointed on I. 7. 1988 as an apprentice Clerk for a period ofone year. She was getting a salary of Rs. 290 per month. Since her work was satisfactory hence the employer extended her tenure by one year. Her services were terminated on 1. 7. 1990 without any prior notice. She raised an industrial dispute and the matter was referred for adjudication by the Labour Court. The appellant-Management filed their reply and pointed out that she was recruited as an apprentice trainee as a Clerk for a period from 4. 7. 1988 to 3. 7. 1989 under the provisions of the Apprentices Act, 1961 and on completion ofthe training the Management is not under an obligation to give her employment.

It was also alleged that the regular recruitment to the post of Clerk is done by the Electricity Service Commission according to the prescribed Rules and it was pointed out that she was only appointed as apprentice trainee and not recruited through the Electricity Service Commission. Though the respondent has denied that she was not appointed by the appellant-Management for training but she was working against a regular post of the nature. The Management examined four witnesses and they said that the respondent was engaged for a training purpose only. They produced the copy ofthe training form which was filled up by the respondent as Ext. Ell with her signature and she also admitted her signature on the form which was filled up by her for training purpose. The Management examined one Layak Singh as EW-1 who is Head Clerk on the establishment of the Management and he produced the agreement Ext. Ell and.

it was pointed out that after the completion of the training as apprentice he~ services were terminated but on the recommendations she is allowed to continue for some time. From these facts it is more than apparent that an agreement was filled up by the respondent-incumbent and she admitted herself her signature on that agreement/contract. It may be that said agreement/contract has no_t been sent for registration before the Apprenticeship Adviser but the fact remains that she was recruited as apprentice and if she was recruited as apprentice then she cannot be treated as a workman as discussed above in detail and therefore, the award given by the Labour Court treating her to be workman under Section 2(s) of the U. P. Industrial Disputes Act, 1947 cannot be sustained. This award made by the Labour Court was affirmed by the High Court by order dated 15. 7. 2003 passed in Civil Misc. Writ Petition No. 3016511999 filed by the Management challenging the award of the Labour Court.

The view taken by the High Court in this case cannot be sustained in view of the legal position already examined above. Hence, we allow this appeal, set aside the order of the High Court as well as the award made by the Labour Court. No order as to costs. Civil Appeal No. 9233/2003. Respondent-Avnindra Kumar Sharma was engaged in the establishment of the appellants on 27. 7. 1991 due to death of his brother on 11. 10. 1984 on humanitarian ground. It is alleged that he was engaged as a apprentice under the Apprentices Act, 1961 on the post of Switch Board Attendant without completing the formalities. He was engaged as apprentice by the Engineer at 220 Grim Union, UPSEB, U. P. , Kanpur. Then his services were transferred to J. E. , 132, K. V. Asainee, Dibiyapur, District. Etawa. He was paid at the rate of Rs. 330 per month initially. Thereafter, it was increased to Rs. 380 per month.

It is alleged that instead ofaccepting his demand for enhancement of salary, the services were suddenly terminated on 27. 7. 1993. The case of the Management is that neither he was appointed as a workman nor his services were ever terminated and there was no necessity of complying with the provisions ofSection 6N ofthe U. P. Industrial Disputes Act, 1947. It was contended that the respondent applied to the Principal and Assistant \ Apprenticeship Adviser, Industrial Training Institute, Kanpur and his name was forwarded. Thereafter, he was engaged for training for a specified period of two years. The respondent filed a rejoinder and pointed out that neither any contract for apprenticeship was registered with him nor any registration number· was allotted to him. The case of the respondent was that he was engaged as a dependent of the deceased employee on a condition that after training he will be made regular. He has already received a compensation for the death of his brother.

It is stated that at the time of termination he was getting Rs. 380 per month whereas under the Apprentices Act, 1961 he would have got Rs. 700. The Management examined one Shri R. P. Gupta, J. E. , Dibiyapur under whom he was working and he has stated that the respondent was paid at the apprentice rate. The Management also examined one Shri Mohammuddin Ansari, Head Clerk (Construction Division). He has deposed that respondent has not given any application as dependent of the deceased employee and he also pointed out that as per Ext. E/2 the rules for employment to the dependent of the deceased employee there is no provision to provide employment to the brother of a deceased and he deposed that the name 1f the respondent was referred by the Apprenticeship Adviser according to Ext. E/3 and respondent was selected as a Switch Board Attendant apprentice. However, he pleaded that he cannot say that any registration form was filled up by the respondent or not.

Management also examined Shri S. R. Chowdhary, Sub-Divisional Officer, Etawa and he has deposed that the respondent was working as a trainee under him and he admitted that he worked from 1. 12. 1991 to 27. 7. 1993. But the case of the respondent was that he was employed as a brother of deceased employee, but that cannot be sustained because there was no provision for giving employment to the brother of the deceased employee of the Board and the Labour Court also found that 26 names were sent by the Principal and Assistant Apprenticeship Adviser. Respondent's name appeared in that list and it was stated·that respondent has been selected for training as provided under the Apprentices Act but neither any contract was executed nor the same was registered. Therefore, in this context the Labour Court came to the conclusion that though he was recruited under the Apprentices Act, 196 l but· no contract was executed nor was it ·registered.

The fact of the matter is that the incumbent was recruited and appointed as apprentice Switch Board Attendant, therefore, his recruitment for all purposes will be deemed to be under the Apprentices Act, 1961. The case put up by the respondent that he was employed on the basis of being the brother of the deceased employee of the Board has not been found established by the Labour Court and rightly so because there is no provision for appointment ofa brother ofthe deceased as a dependent under the Rules. Therefore, his case failed on that ground. From the above facts it also transpires that his name was sent by the Principal and Assistant Apprenticeship Adviser for registering him as a trainee and he has worked as a Switch Board Attendant for a period oftwo years that is the tenure for th~ training and after the lapse ofthe training his services were terminated.

In these circumstances, the view taken by the Labour Court cannot be sustained and the respondent cannot be treated as a workman so as to be covered by Section 6N of the U. P. Industrial Disputes Act, 1947. This award has been upheld by the High Court on a writ petition filed by the Managemt;-nt challenging the award. In view of the position that emerges that the respondent was engaged under the Apprentices Act, 1961 as a Switch Board Attendant for a period oftwo years, as such, he cannot be treated as a workman. Therefore, the view taken by the Labour Court in the award dated 10. 11. 1998 in Adj. Case No. 99/1998 and. affirmed by the High Court in Civil Misc. Writ Petition No. 13481/1999 cannot be sustained. The Civil Appeal is allowed. The order ofthe High Court dated 15. 7. 2003 as well as the award dated 10. 11. 1998 made by the Labour Court is set aside. Civil Appeal No. 838612003.

The case of the respondent-Manoj Kumar Shukla is that he was appointed on the post of Store Keeper as an apprentice under the Apprentices Act, 1961 with effect from l0. 10. 1988. His services were terminated on 9. 10. 1989. It is alleged that no examination of National Council was undertaken and work was taken from him as,the regular worker. Further, the case ofthe respondent is that he was not an apprentice under the Apprentices Act and he was a workman under the U. P. Industrial Disputes Act, 1947 and his services were terminated on lO. l0. 1989 without following the provisions of Section 6N of the U. P. Industrial Disputes Act, 1947. Hence, the termination of his services is illegal.

Management contested the matter and pointed out that the incumbent was appointed under the Apprentices Act and he was not given any independent work of Store Keeper and he appeared in the examination conducted by the National Council and the incumbent was given regular training for Store Keeper and the training period of the incumbent was for one year and only after expiry of period of one year on 9. 10. 1989 his services stood terminated automatically. Therefore, it is pointed out that he cannot be treated as a workman as his appointment was for a period of one year as an apprentice. However, Labour Court by its order dated 23. 1. 1995 found that no document had been produced by the Management. Although the respondent has produced documents/certificates Exts. W/l and W/2 dated 6. 11. 1989 and 29. 1. 1990 issued by the Management and the trade shown therein is that of the Apprentice (Store Keeper) but no document of the registration was produced.

It was also stated by the Management that the river side centre where respondent was working as a trainee was closed on 7. 1. 1991 and the respondent was recruited by the Kanpur Electricity Supply Administration (KESA) but still the Labour Court concluded that the removal ofworkman- Manoj Kumar Shukla is not constitutional, legal and he is entitled to full wages. Then a review application was filed by the Management and it was stated that the award was received in the office from there it appears that certificate Exts. W/1 and W/2 issued by the Management it is clear that incumbent was appointee! as a Store Keeper in the Power House and not in the river side Power House and he never worked there and the river side Power House has been closed. It was alleged by the Management tr \t they did not get proper opportunity to lead evidence to this effect. The Labour Court observed that sufficient opportunity was given to the Management but they failed to avail the same.

However, it was admitted by the Presiding Officer that there is an error that Manoj Kumar Shukla was appointed in the KESA and not in the river side Power House and this is the error which crept in the award dated 23. l . 1995 and therefore he rectified this error and it is also observed that since both the parties agree that the incumbent was appointed in the KESA at Kanpur and not in the river side Power House, accordingly the award was modified to this extent. However, the award passed by him on 23. l . 1995 was upheld. Aggrieved by this order, the Management filed a writ petition before the Allahabad High Court and the High Court affirmed the award. After going through the award as well as the order ofthe High Court it appears more than 998 Sl_JPREME COURT REPORTS (2004] SUPP. 4 S. C. R.

apparent that there might have been failure on the part of the Management to lead the evidence bμt the fact of the matter is that it is the case of the applicant himself that he was appointed as apprentice Store Keeper as is apparent from Exts. W/l and W/2. Therefore, we cannot lose sight of the fact •that h~ ~as appointed apprentice Store Keeper in the Power House' and after the expiry of the period of one year applicant cannot claim to have been treated as workman. He was appointed on l0. 10. 1988 to 9. 10. 1989 and he put up the case before the Labour Court that he was appointed as an apprentice Store Keeper under the Apprentices Act, 1961. Now, he cannot be permitted to deny that he was not appointed under the Apprentices Act ' and he was appointed as a workman and therefore he seeks the benefit of Section 6N ofthe U. P. Industrial Disputes Act, 1947. He cannot be permitted to withdraw from this position. From Exts. W/l and W/2, certificates issued by the Management on 6. 11.

1989 and 29. 1. 1990, it is apparent that he was shown as an apprentice Store Keeper. Just because of the failure of the Management to defend the case properly the benefit cannot be claimed by the workman. Because ofhis own showing it is apparent that his appointment was Store Keeper for a period of one year, therefor. : the award given by the Labour Court cannot be justified. More so the termination was in the year 1989 and he raised the dispute in 1993. Therefore, taking into consideration all these factors, we are of . the opinion that respondent cannot claim any benefit of being a workman. He was apprentice and after the completion of the period of apprenticeship as a Store Keeper he has no right to continue and he cannot be treated to be a workman. Accordingly, the award given by the Labour Court dated 23. l. 1995 and modified on 28. 1. 1997 are set aside, likewise the order of the High Court affirming the award. Consequently, the appeal is allowed. Civil Appeal No. 1412004.

The case of the respondent- Subodh Kumar was that he was appointed to the post of a Clerk in August, 1981 and as per the letter of the Electricity Board he had participated in the sports events in 1982-1983 and also obtained three certificates. He worked on the post of Clerk till 16. 2. 1984 and his services were terminated on the morning of 16. 2. 1984'. Therefore, he raised industrial dispute that since he has worked for more than 240 days as such he is a workman and entitled to the protection of Section 6N of the U. P. Industrial Disputes Act, 1947. The Labour Court found that there is non- . H compliance ofSection 6N ofthe Act and set aside his termination/ retrenchment.

The Electricity Board contested the matter and submitted that the recruitment to the Electricity Board is regulated by the Rules for appointment/transfer/ selection/promotion of employees and it is also contended that in fact the respondent was engaged as an apprentice trainee in the appellants' organization under the Apprentices Act, 1961 for one year. He started his training on 17. 2. 1983 and on completion ofthe one year training, his services automatically came to an end on 16. 2. 1984 and it was contended that acco1uing to Section 18 of the Act a trainee does not fall under the definition of workman and accordingly labour laws are not applicable to him and the Management is not obliged to appoint him in the Department. The learned Labour Court after considering the evidence and relying on the sports certificates inferred that the incumbent was appointed as a workman and not apprentice trainee.

'However, the Labour Court disbelieved the evidence ofHarish Chandra, WE- 1 who deposed that on the basis of Ext. Ell the incumbent was selected apprentice. Though, the incumbent has denied his own signature, Ext. Ell is the application by the concerned workman and Ext. E/2 is the list of the persons selected as the apprentice trainees and name of the incu1'1. bent appears at SI. No. 96. But curiously enough learned Labour Court has . ~ disbelieved them on the ground that since respondent has denied his · signature, therefore, they should have produced the handwriting expert and the list, Ext. E/2 in which name of the respondent appears at SI. No. 96 was also disbelieved. The learned Judge says, "on what basis it has been shown is not on record''. He further goes to say that ifthe workman has been engaged apprentice trainee then an agreement ought to have been executed but no such agreement is available on record.

He says that an agreement should also be brought on record and same is to be proved and in the absence of the same the story of the apprentice trainee was subsequently developed and he held that respondent cannot be deemed to be an apprentice trainee under the . ) Apprentices Act, 1961. This finding of the learned Labour Court appears to be perverse on the face of it. Just on the basis of the two sports certificates he has rushed to conclude that the incumbent was appointed as a workman. The recruitment in the Electricity Board is under service rules and when the evidence has been produced, Ext. E/2, a list of the apprentices recorded in pursuance ofhis application, Ext. Ell and the name ofthe incumbent appears at SI. No. 96, we fail to understand how such primary evidence of the Management could be so lightly brushed aside. The application by the respondent and that name of the respondent appears at SI. No.

96 of the list of the apprentices go to show that he was apprentice and there was no necessity for the Management to bring hand-writing expert to substantiate ' that the application bears the signature of the respondent when there is already corroborating evidence available on record that the name of the respondent appears in Ext. E/2, list ofthe apprentices and that has been proved by the Management, that is sufficient to show that the incumbent was recruited as a trainee apprentice and after the tenure of the period of apprenticeship, his services came to an end. Just because his agreement was not set for registration that will not change the character of the incumbent as apprentice trainee. Apart from this, the service was terminated on 16. 2. 1984 and the dispute has been raised in 1997. Unfortunately, High Court has also affirmed the same.

The award as well as the order of the High Court cannot be sustained on the basis of the fact that there is primary evidence which goes to show that the incumbent was recruited as apprentice trainee as a Clerk for a period of one year and after the expiry of one year he has no right to continue and he cannot be treated as workman. The view taken by the Labour Court in the award dated 2. 1. 1998 affirmed by the High Court cannot be sustained. Consequently, we allow this appeal, set aside the award of th!! Labour Court dated 2. 1. 1998 and the order of the High Court dated 15. 7. 2003 in Civil Misc. Writ Petition No. 4102711998. Civil Appeal No. 838512003. Respondent-Shiv Kumar Bhatia was appointed by Mis. Kanpur Electricity · Supply Administration, Kanpur on 31. 3. 1986 on the post of Store Keeper. The case of the respondent was that his services were wrongly terminated by order dated 31. 3 . 1987 which was not legal.

Therefore, he raised an industrial dispute and the matter was referred to the Labour Court and Labour Court found that the Board has not produced any evidence except the application vide 13-B on behalf of the Management wherein it is stated that the contract was entered into between one S. K. Bhatia and the Management under the provisions of the Apprentices Act, 1961. Though opportunities were given to the LT. I. Kanpur for producing the contract but they did not file the contract alleged to have been entered into between workman and the Management. It was alleged that the application was neither registered nor any certificate issued to him after examination of the National Council and it was alleged that the Management took the work from the respondent as a permanent employee. But they illegally terminated the services on 31. 3. 1987. Though the Labour Court has held that the respondent remained an apprentice although he was a workman under the U. P.

Industrial Disputes Act, 1947 which establishes a relationship of a master and servant between them and U. P. STATE ELECTRICITY BOARD v. S. M. SINGH [MATHU_R, J. ]1001 that the Management terminated his services without complying with the provisions ofSection 6N, therefore, it concluded that the order oftermination/ retrenchment is bad. The Management's stand was that he was an apprentice trainee from 31. 3. 1986 to 30. 3. 1987 and he cannot be treated as a workman and they led evidence of Shri K. L. Mehrotra who submitted that the incumbent was an apprentice trainee which is apparent from his own application and a contract was entered into between con::;:med workman and the Management. Shri Mehrotra stated that contract was got signed for the work of apprentice but the same is not available in the official record.

The learned Labour Court on these facts inferred that formalities required under the Apprentices Act, 1961 were not complied with and therefore, the incumbent shall be treated as a workman and accordingly granted relief. Once it is accepted by the Labour Court that the incumbent was recruited under the Apprentices Act, 1961 though the formalities might not have been completed/produced but the fact remains that it is the finding of the Labour Court that the incumbent was appointed und~r the Apprentices Act, 1961, which is apparent from the period that is 31. 3 . 1986 to 31. 3 . 1987 (one year) which is a normal period for training for apprentice Store Keeper and after the end of this period respondent was not allowed to continue. It is apparent that he worked for a period of one year and the Management has produced his application that he was apprentice trainee but just because they could not produce the contract that will not change the character of the appointment of the incumbent.

The Labour Court has observed, "since the Management has not complied with the formalities required under the Apprentices Act, 1961 therefore, the concerned workm~n is not an apprentice". This presupposes that the Labour Court accepted the incumbent as apprentice under the Apprentices Act though the necessary formalities might not have been completed that would not change the character of the incumbent from the apprentice to workman. The character of the incumbent as an apprentice trainee cannot be changed as he owes his existence under. the Apprentices Act, 1961 and after the tenure of one year his services were bound to come to an end and he cannot convert this character of a trainee to an employee of the Management. Apart from this, the services were terminated way back March 1987 and the dispute was raised in 1994.

Therefore, the view taken by the Labour Court of treating the respondent apprentice/ trainee to that of a workman cannot be sustained, likewise the order of the High Court dated 15. 7. 2003 in Civil Misc. Writ Petition No. 19422/1999 whereby this order of the Labour Court has been affirmed by the High Court. Accordingly, we allow this appeal, set aside the order of the High Court dated 15. 7. 2003 as _ 1002 SU? REME COURT REPORTS (2004] SUPP. 4 S. C. R. ( well as the award. dated 13. 5. 1998 made by the Labour Court. No order as to costs. S. B. SINHA, J: Section 2(z) of the U. P.

Industrial Disputes Act, 1947 defines 'Workman' to mean "any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding urtder 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 retrenchment has led to that dispute,.... " A workman includes apprentice in terms of the said provision. U. P. Industrial Disputes Act, 1947, is a general law. The Parliament enacted Apprentices Act, 1961 (for short 'the said Act') which is a special law. It deals with the regulation and control of training of apprentices and for matters connected therewith.

The special statute, therefore, shall prevail over the general statute having regard to the maxim "generalia specialibus non derogant (See Talcher Municipality v. Talcher Regulated Mkt. Committee & Anr. , [2004] 6 sec 178. J The said Act is a complete code in itself. An apprentice, as defined in Section 2(aa) of the said Act, is a person who enters into a contract of apprenticeship for the purpose of undergoing apprenticeship training in a designated trade. Entering into a contract of apprenticeship, therefore, is the basis for attracting the provisions of the said Act. · The primal question which arises for consideration is as to whether a person who is an apprentice within the meaning of Section 2(aa) of the said Act would become a workman and, con~equently, would be entitled to the benefits of various labour laws in the event of breaches of the terms of the said contract as also non-registration thereof.

It is neither in doubt nor in dispute that an 'apprentice' within the meaning of the provisions Of the said Act would per se not be a workman within the meaning of Section 2(z) of the U. P. Industrial Disputes Act. It is further not in dispute that in terms of Section 18 of the Act the apprentices being trainees and not workers would not be entitled to the benefits of U. P. STATE ELECTRICITY BOARD v. S. M. SINGH (SINHA, J. ] 1003 provisions of any labour laws. Section 4(1) of the said Act provides that a contract of apprenticeship will have to be executed by the employers and the apprentice before the apprenticeship training begins. Such training commences as soon as the said contract is executed.

Sub-sections (4) and (5) of Section 4 of the said Act, however, provide that every contract of apprenticeship shall be sent to the , ' Apprenticeship Advisor for registration within the period prescribed therefor whereupon, he would register the same if he is satisfied that they meet the qualifications provided in Section 3 thereof. It is relevant to no_tice at this juncture that prior to amendment of the said Act in the year 1973 by Act No. 27 of 1973, Section 4 postulated that apprenticeship training would not commence till a contract ofapprenticeship was entered into by and between the apprentice and the employer and the same was registered with the Apprenticeship Advisor. The provision of Section 4 of the said Act as it existed prior to 1973 assumes importance for the purpose of interpretation thereof. + It is furthermore not in dispute that the said amendment was brought about with a view to avoid delay in commencement of training of the apprentices. Mr. R.

Venkataramani, learned senior counsel appearing on behalf of the Respondents would suggest that despite such amendment the importance of the registration of the contract of apprenticeship cannot be held to be diluted having regard to the expressions used therein which are imperative in character. The learned counsel is not entirely correct. ·F Ordinarily, although the word "shall" is considered to be imperative in nature but it has to be interpreted as directory if the context or the intention otherwise demands. (See Mis. Sainik Motors, Jodhpur and Others v. State of Rajasthan, AIR (1961) SC 1480, para 12). It is important to note that in Crawford on Statutory Construction at page 539, it is stated : "271. Miscellaneous Implied Exceptions from the Requirements of Mandatory Statutes, In General.

-Even where a statute is clearly mandatory or prohibitory, yet, in many instances, the courts will regard certain conduct beyond the prohibition ofthe statute through the use of various devices or principles. Most, if not all of these devices find their jurisdiction in considerations ofjustice. It is a Nell known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient caliber to excuse or justify a 1 technical violation of the law. " It is no doubt true that the Apprenticeship Advisor has certain statutory duties and functions as contained in Sections 4(5), 5, 7, 8, 9, 10, 15 and 29. It is furthermore true that Sections 19 and 20 provide for certain obligations upon the employer to obtain approval of the Apprenticeship Advisor and forward the records to the concerned authorities.

Similarly, the rules framed under Sectfon 37 of the Act confer certain benefits upon the apprentices. If an employer fails to perform his statutory ·n duties or deprives an apprentice from the benefits to which he is entitled to, the Apprenticeship Advisor can file an appropriate complaint before a competent court of law. In terms of Section 31 of the Act the only penalty which can be imposed upon the employer is fine which shall not be less than one thousand rupees but may extend to three thousand rupees. Violation of the provisions of the Act, therefore, does not result in imprisonment. A question which also arises for consideration is as to whether Section 18 of the said Act must be strictly construed. Ifa contract ofapprenticeship is entered into; the violation ofthe terms and conditions thereof, in our opinion, although may lead the penal consequences but the same would not render the contract of apprenticeship void or illegal.

In the event, the Apprenticeship Advisor obtains informations about such violations, he is entitled to take suitable steps in that behalf under the Act or the rules but he ha! J not been conferred with any power to declare such contract of apprenticeship to be ipso facto void ab initio. Section 20 also provides resolution of disputes between an apprentice and the employer arising out of the contract of apprenticeship which shall be referred to the Apprenticeship Advisor for decision. While resolving a conflict by and between an employer and an apprentice under Section 20 of the said Act, U. P. STATE ELECTRICITY BOARD v. S. M. SINGH [SINHA, J. ] 1005 t . indisputably he can issue directions which the employer will have to comply with and on his failure to do so, he would run the risk of being prosecuted in terms of Section 30 ofthe Act, but even in such a situation he cannot bring an end to the contract.

The contract of apprenticeship like any other contract can be brought to an end by the parties thereto. Once a contract of apprenticeship commences, the same cannot be brought to an end except in accordance with law. By reason of nonregistration of the contract of apprenticeship, the same does not become a nullity. If it is to be held that by reason of non-registration of such contract ofapprenticeship the contract itself comes to an end, it would be detrimental to the interest ofthe apprentices, which would frustrate the object ofthe Act. The definition of 'Apprentice' nowhere states that an apprentice with a view to obtain the benefits ofthe said Act must also be registered. Section 18 of the said Act says that an apprentice shall not be a worker. It does not say that an unregistered apprentice shall be a worker.

Only because the expression "shall" has been employed in sub-section (4) of Section 4, the same may not be held to be imperative in character having regard to the fact that not only, as noticed hereinbefore, a contract of apprenticeship commences but also in view of the fact that an application for registration of apprenticeship contract is required to be made withil). period of three months in terms of Rule 48 of the Apprenticeship Rules, 1992. The Act nowhere provides for the consequences of non-registration. It is not in dispute that the list of apprentices used to ht: sent by the Apprenticeship Adviser himself and, thus, presumably the preliminary scrutiny in that regard had been made by the said authority. Ifin a given case, as noticed hereinbefore, the employer fails to get the contract ofapprenticeship registered and/or fails to carry on his obligations in terms of Section 11 of the Act, he faces penal consequences in terms of Section 31 of the Act.

·Tue employer, furthermore, is liable to pay compensation for termination of apprenticeship as would appear from Rule 6 of the Apprenticeship Rules, 1992, which reads thus : "Compensation for termination of apprenticeship. -Whereas the contract of apprenticeship is terminated through failure on the part of any employer in carrying out the terms and conditions thereof, such employer shall be liable to pay the apprentice compensation . 1 of an amount equivalent to is three months' last drawn stipend; and when the said termination is due to failure on the part of an apprentice in the above manner, then a training cost of an amount equivalent to his three months last drawn stipend shall be made recoverable from such apprentice or from his guardian in case he is minor.

" No provision of the Act or the rules framed thereunder was brought to our notice to show that non-registration of the contract of apprenticeship or violation and/or neglect on the part ofthe employer to comply with the other provisions of the Act it would result in invalidation of the contract. An apprentice remains an apprentice having regard to the definition contained in Section 2(aa) of the Act and continues to work in the said capacity. His status does not change to that of a workman only because the contract has not been registered or the employer has not carried out his obligations thereunder. Ifsuch a construction is placed, an apprentice may be held to have ceased to be an apprentice ifhe himselfdefaults in performing his obligations under the contract. \ . ' Recently, in Canbank Fif! ancial Services Ltd v. The Custodian and Ors.

, (2004) 7 SCALE 495, this Bench has held that even if a benami transaction is prohibited the sameper se would not render the transaction void ab initio and illegal. It is now well-settled principle of law that if the language used in a statute is capable of bearing. more than one construction, the true meaning thereof should be selected having regard to the consequences resulting from l adopting the alternative constructions. A construction resulting in hardship, non-fulfilment of the purpose for which statute has been brought in force \.. i . should be rejected and should be given that construction which avoids such results. Sub-section (4) of Section 4 of the said Act can also be . held to be directory having regard to the rule laid down in Heydon's case. ((1584) 3 Co. Rep. 7a]. (See Ashok LeylandLtd v. State o/Tamil Nadu & Anr. , (2004] 3 SCC I and Ameer Trading Corporation Ltd v. Shapoorji Data Processing Ltd, (2004] 1 sec 102.

1 The mischief rule enables the court to take into consideration the following four factors for construing an Act: - U. P. STATE ELECTRICITY BOARD v. S. M. SINGH [SINHA, J. ] 1007 t• (i) What was the law before the making of the Act, (ii) What was the mischiefor defect for which the law did not provide, (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which "shall suppress the mischief and advance the remedy". Prior to 1973, the provision for registration was mandatory in character. Only having regard to the delay which has occasioned for registration of contract of apprenticeship, the said amendment had been brought about; pursuant whereto or in furtherance whereof the contract of apprenticeship commences.

Ifthe purpose ofamendment was to make the contract workable even without registration, we fail to see any reason as to why the provision should be construed as imperative in character so as to render a contract of apprenticeship a nullity which is possible to be avoided and the object thereof can be achieved by taking recourse to the penal provisions. It may be true that rules framed under Section 37 ofthe Act are required to be laid before both Houses of Parliament after formulation; but even such a provision is directory in nature. It is not a case where any of the apprentices repudiated the contract.

No argument has also been advanced to the effect that the contract of apprenticeship was merely a camouflage or a ruse so as to establish that in effect and substance, while appointing a person as an apprentice, the employer has been taking work from him malafide or with a view to deprive him from the benefits of the Jabour legislations, nor any material in respect thereof had been brought on records. Whether a relationship of an employer and workman or an employer and an apprenticeship had been brought about, is essentially a question of fact. The Court while determining such a dispute must consider the factual matrix involved therein in the light of the provisions of the said Act. Once it is held that a contract of apprenticeship entered into by and between the < employer and the workman is a genuine one and not a camouflage or a ruse, • a presumption would arise that the concerned person is not a workman.

L It is one thing to say that a contract is illegal being opposed to public policy so as to render the same void in terms of Section 23 of the Indian Contract Act but it is another thing to say that by reason of breaches of the terms and conditions thereof by one ofthe parties it becomes voidable at the instance ofthe other party to the contract. Ifa contract is valid in law the breaches thereof would not render it invalid but the same may only enable a party thereto, who had suffered by reason of such breach, to avoid the contract. Unless the terms and conditions of a contract are avoided by a party 'thereto the contract remains valid and all consequences flowing therefrom would enure to the benefit of the parties thereto. Mr. Venkataramani has relied upon a decision of the Court of Appeals in F. C. Shepherd & Co. Ltd. v.

Jerrom, [1986] 3 All ER 589 wherein it is stated: "If the party against whom frustration is asserted can by way of answer rely on his own misconduct, injustice results.... " Ex facie the said decision has no application in the present case. The . \ plea of frustration was not pleaded or established. It is one thing to specify as what would be the legal consequences of a breach of a contract but it is another thing to say that despite subsistence of a valid contract, the statutory benefits thereof shall not enilre to the parties thereto. In absence of any specific provision in the statute, we are unable to accede to. the submissions ofthe learned counsel to the effect that in the event ofcommission ofa breach by the employer the contract of apprenticeship shall become a contract of employment. Such a novation of contract is not contemplated in law. .

With a view to become a workman, not only the apprentice has to show that he comes within the purview of the definition of the term 'workman' as contained in Section 2(z) ·. of the U. P. Industrial Disputes Act, 1947 but he must further plead ~nd establish that his job is such which fulfills the requirements of the said term. [See Mukesh K. Tripathi v. Sr. Divn. Manager, LIC & Ors. , JT (2004) 7 SC 232 = (2004) 7 SCALE 442. ] In Bruton v. London and Quadrant Housing Trust, [1999] 3 All ER 481, a contract of tenancy was held to be binding upon the parties even though the grantor lacked the necessary power. A housing association which itself was a licensee granted a licence which in view ofthe decision in Street v. Mountford, (1985] AC 809 was treated to be a tenancy even though the U. P. STATE ELECTRICITY BOARD v. S. M. SINGH [SINHA, J. ] 1009 l .. hcusing association, being themselves mere licensees had no power to grant a legal tenancy valid against all the world.

It is, therefore, necessary to ascertain as to how the parties to the contract thought thereabout. Ordinarily, it is impermissible in law for a party to the contract ofapprenticeship to allow it to be worked out and then contend that it was a contract of employment. In The Employees' State Insurance Corporation and Another v. The Tata Engineering & Locomotive Co. Ltd. and Another, [1975] 2 SCC 835, it was held : "The concept of apprenticeship is, therefore, fairly known and has now been clearly recognized in the Apprentices Act. Apart from that, as we have noticed earlier, the terms and conditions under which these apprentices are engaged do not give any scope for holding that they are employed in the work of the company or in connection with its work for wages within the meaning of Section 2(9) of the Act... " Decisions are galore to show that despite a contract of apprenticeship r • coming to an end, the concerned workman must fulfil the eligibility criteria of appointment.

[See Rajendra Singh and Others v. U. P. State Electricity Board, Shakti Bhawan, Lucknow and Others, (2000) 86 FLR 155, Sri Chittaranjan Das v. Durgapore Project Limited & Ors. , (1995) 2 CLJ 388, Babula[ and Others v. Rajasthan State Road Transport Corporation and Another, (2000) 84 FLR 847 and Mitrangshu Roy Choudhary v. Union of India & Others, (1999] 3 SCC 649. ] A Division Bench of the Gujarat High Court in Bal/khan Doskhan Joya v. Gujarat Electricity Board, (2002) 92 FLR 914, whereupon Mr. Venkataramani, relied, observed :· "... The Central Legislature was, therefore, fully alive to the situation that an apprentice, undergoing an apprenticeship training under an apprenticeship contract duly registered, would be only a 'trainee' and not a 'workman', to which other Jaws in respect of labour shall not apply.

Therefore, in inclpding, in the definition of 'workman', 'apprentice' as well, the legislative intention appears to be obvious that such apprentices, who are not undergoing apprenticeship training under a duly registered 'apprenticeship contract, envisaged by the Apprentices Act, and to whom provisions of Section l 8 of the said Act are not applicable, would, nonetheless, be included in the definition of 'workman' under the l. D. Act and would get all the protection of labour laws. The learned single Judge may be right in his reasoning that even after non-registration of the contract of apprenticeship, the appellant would pnly be a 'trainee', or an 'apprentice', as intended by the parties and he would not be an '. employee' or a 'workman', within the meaning of the Apprentices Act.

Even if, as stated by the learned single Judge, the appellant, as a result ofnon-registration ofcontract of apprenticeship, is deemed to be a trainee or an 'apprentice', he would, nonetheless, be covered within the definitfon of 'workman' under Section 2(s) of the l. D. Act. " The ratio enunciated in the said decision appears to be self-contradictory. An apprentice cannot both be an apprentice and a workman under the 1947 Act. Similarly, the observations made by the Patna High Court in Ram Dular Paswan and Others v. P. O. Labour Court, Bokaro Steel City and Others, . \. (1998) 80 FLR 399 to the effect that "The Apprentices Act does not deal with the investigation and settlement of industrial disputes between the employer and the workmen. Therefore, so far as the settlement of the industrial disputes is concerned, the l. D. Act will prevail over the Apprentices Act. If the employer takes the kind of work mentioned in Section 2(s) of the l. D.

Act from the apprentice, the dispute between them · has to be settled under and in accordance with the said Act. But if the apprentice does not perform such ,work, the l. D. Act will not apply to him. The line of demarcation between the apprentice and the workman is very clear. Ifand when a question as to whether an apprentice is really an apprentice or is a workman wearing the mask of an apprentice, is raised the appropriate authority/Labour Court will have to apply mind to the nature of his work. The veil has to be lifted in order to find out the reality. But such a question cannot be decided merely on the basis of apprenticeship contract or on the basis of the label, which a person wears. " does not appear to be correct, particularly for the reasons that the High Court has failed to consider tp. at Section 20 of the 1961 Act provides for settlement U. P. STATE ELECTRICITY BOARD v. S. M. SINGH [SINHA, J. ] 101 l ' ... of disputes.

Furthermore, as observed hereinbefore, such a contention has to be specifically pleaded and established. Moreover in terms of Section 22 of the Act, the employer has no statutory liability to give employment to an apprentice. We are, therefore, of the considered view that non-registration of the contract of apprenticeship would not render the same nugatory. '. Subject to the foregoing supplemental reasons, I respectfully concur with the judgment of Mathur, J. N. J. Appeals allowed. -- ..