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

p. 996 Copy page pinpoint

A 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 B 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 of a brother of the 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 c Adviser for registering him as a trainee and he has worked as a Switch Board Attendant for a period of two years that is the tenure for th~ training and after the lapse of the 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 D 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 of two 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 E and. affirmed by the High Court in Civil Misc. Writ Petition No. 13481/1999 cannot be sustained. The Civil Appeal is allowed. The order of the High Court dated 15.7.2003 as well as the award dated 10.11.1998 made by the Labour Court is set aside.

F 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 l 0.10.1988. 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 of the 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 l O. l 0.1989 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

p. 997 Copy page pinpoint

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 c 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 D (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 E 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. F 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 G 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 of the High Court it appears more than H

998 Sl_JPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A 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 B the expiry of the period of one year applicant cannot claim to have been treated as workman. He was appointed on l 0.10.1988 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 c Section 6N of the 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 of his 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. F 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 G 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 of Section 6N of the Act and set aside his termination/ retrenchment.

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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 of the 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. c '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 F .) 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 of his application, Ext.Ell and the name of the incumbent appears G 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 H

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A 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 of the 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 B 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 c 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 D 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 E· 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 H 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 of Section 6N, therefore, it concluded that the order of termination/ 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 C 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) D 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 E has not complied with the formalities required under the Apprentices Act, 1961 therefore, the concerned workm~n is not an apprentice". This pre- supposes 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 H

1002 SU?REME COURT REPORTS (2004] SUPP. 4 S.C.R.

A 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. D 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 E 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. · F 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. A

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, B 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 c said Act in the year 1973 by Act No. 27 of 1973, Section 4 postulated that apprenticeship training would not commence till a contract of apprenticeship 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. D +

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. E 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). G 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 H

1004 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their jurisdiction in considerations of justice. 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, B would seem to be of a sufficient caliber to excuse or justify a technical violation of the law." 1

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. c 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.

If a contract of apprenticeship is entered into; the violation of the 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 G 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,

t . U.P. STATE ELECTRICITY BOARD v. S.M. SINGH [SINHA, J.] 1005

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 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 non- registration 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 of apprenticeship 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. c 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. D 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). a E 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. If in a given case, F as noticed hereinbefore, the employer fails to get the contract of apprenticeship 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, G 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 H

1006 SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R. . 1

A 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 B 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 of the employer to comply with the other provisions of the Act it would result in invalidation of the contract. An c 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. If such a construction is placed, an apprentice may be held to have ceased to be an apprentice if he himself defaults 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 same per 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 G Co. Rep. 7a]. (See Ashok Leyland Ltd 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 H 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, A

(ii) What was the mischief or 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. B

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 c contract of apprenticeship, the said amendment had been brought about; pursuant whereto or in furtherance whereof the contract of apprenticeship commences. If the purpose of amendment 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 D 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 of the Act are required to be laid before both Houses of Parliament after formulation; but even such a provision is directory in nature. E

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. H

1008 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R. L A 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 of the parties it becomes voidable at the instance of the other party to the contract. If a contract is valid B 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.

C 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 .... " D 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 E 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 of the learned counsel to the effect that in the event of commission of a breach by the employer the contract of apprenticeship shall become a contract of employment. Such a novation of contract is not contemplated in law.

F . 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. G 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 of the decision in Street v. H 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 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 of apprenticeship 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 B 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 c 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... " D 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, E 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. F 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 G 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 H

1010 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A 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 B '.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 of non-registration of contract 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. c 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. D 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. If and 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 G 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 H 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. c