TaxTMI 
TaxTMI 
2004 (9) TMI 653
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....led and referred to for the sake of brevity as "the Corporation") on or about 16.7.1987 as Apprentice Development Officer. The relevant terms and conditions contained in the offer of appointment are as under: "2. You will be taken, at the outset, as an Apprentice for a period of one year commencing from 16.7.1987 on a stipend of Rs. 1250/- per month, and will be given two months theoretical training at Divisional Office, Kanpur and thereafter the (sic) months Branch training followed by Field Training in a Branch as may be decided to us. You will faithfully and diligently apply yourself to the course of training fixed for you and carry out all orders and directions given to you. 3. On completion of the apprenticeship period, if your work and conduct are found satisfactory, you will be appointed as a Development Officer on probation on a monthly basic pay of Rs. 700/- and such other allowances as are admissible in accordance with staff Regulations. 4. During the period of apprenticeship, you shall be liable to be discharged from service without any notice. 7. You are not entitled to any travelling allowance for joining the Training Centre at Divis....
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....t been overruled by this Court in H.R. Adyanthaya (supra), the High Court has committed a manifest error in passing the impugned judgment. 10. Mr. K. Ramamoorthy, learned senior counsel appearing on behalf of the Respondents, on the other hand, would submit that in H.R. Adyanthaya (supra) a Constitution Bench of this Court has clearly laid down the law that even if a person does not perform managerial or supervisory duties, with a view to hold that he is a workman, it must be established that he performs skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward and as it has not been established that the Appellant herein performed any of the jobs enumerated in Section 2(s) of the Act, he is not a workman. 11. The learned counsel has also drawn our attention to a Scheme known as the Life Insurance Corporation of India (Apprentice Development Officers) Recruitment Scheme, 1980 (for short "the Scheme") for the purpose of showing that an Apprentice Development Officer is a person recruited for training and subsequent appointment to the cadre of Development Officers. It was submitted that as the Appellant was appointed in terms thereof, unless he was....
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....tently held that the designation of the employee was not of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman. It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that word as it existed before the amendment of 1956. The nature of the duties of Mukerjee is not in dispute in this case and the only question, therefore, is whether looking to the nature of the duties it can be said that Mukerjee was a workman within the meaning of S. 2 (s) as it stood at the relevant time. We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for which he had to work. In the circumstances the t....
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....rkmen employed to do 'operational' work came to be included in the definition. What is more, it is by virtue of this amendment that for the first time those doing non- manual unskilled and skilled work also came to be included in the definition with the result that the persons doing skilled and unskilled work whether manual or otherwise, qualified to become workmen under the ID Act." 18. Considering the decisions in May and Baker (supra), Western India Match Co. (supra), Burmah Shell Oil Storage (supra) as also S.K. Verma (supra) and other decisions following the same, this Court in H.R. Adyanthaya (supra) observed: "However, the decisions in the later cases, viz., S. K. Verma ((1983) 4 SCC 214 : 1983 SCC (L&S) 510 : (1983) 3 SCR 799), Delton cable ((1984) 2 SCC 569 : 1984 SCC (L&S) 281 : (1984) 3 SCR 169), and Ciba Geigy (1985) 3 SCC 371 : 1985 SCC (L&S) 808 : 1985 Supp (1) SCR 282) cases did not notice the earlier decisions in May & Baker ((1961) 2 LLJ 94 : AIR 1967 SC 678 : (1961) 2 FLR 594) WIMCO ((1964) 3 SCR 560 : AIR 1964 SC 472 : (1963) 2 LLJ 459), and Burmah Shell ((1970) 3 SCC 378 : (1971) 2 SCR 758 : AIR 1971 SC 922 : (1970) 2 LLJ 590) cases and the v....
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....cision has been held to have been rendered per incuriam, it cannot be said to have laid down a good law. This Court is bound by the decision of the Constitution Bench. 24. From a perusal of the award dated 28.5.1996 of the Tribunal, it does not appear that the Appellant herein had adduced any evidence whatsoever as regard the nature of his duties so as to establish that he had performed any skilled, unskilled, manual, technical or operational duties. The offer of appointment dated 16.7.1987 read with the Scheme clearly proved that he was appointed as an apprentice and not to do any skilled, unskilled, manual, technical or operational job. The onus was on the Appellant to prove that he is a workman. He failed to prove the same. Furthermore, the duties and obligations of a Development Officer of the Corporation by no stretch of imagination can be held to be performed by an apprentice. 25. Even assuming that the duties and obligations of a Development Officer, as noticed in paragraph 8 of S.K. Verma (supra), are applicable in the instant case, it would be evident that the Appellant herein could not have organized or developed the business of the Corporation without becoming a fu....
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.... Edn. Volume 16, it is stated : "586. Form and parties. A contract of apprenticeship is unenforceable if it is not in writing. Usually the contract is effected by deed under which the apprentice is bound to serve a master faithfully in a trade of business for an agreed period and the master undertakes to give the apprentice instruction in it and either to maintain him or pay his wages. Technical words are not necessary. An apprentice cannot be bound without his own consent, and consent without execution of the instrument is insufficient. The instrument must be executed by the apprentice himself, for no one else has a right to bind him. In the case of a minor his father or mother or other guardian, although not necessary parties to the contract, usually execute it too in order to covenant for the apprentice's due performance of the contract since, in the absence of a local custom, an apprentice who is a minor cannot be sued on his own covenant. A contract of apprenticeship is binding on a minor only if it is on the whole beneficial to him. It is not essential that the master should execute a deed of apprenticeship, but where a master had in fact execut....
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....In its absence the version of the concerned workman is disbelieved and it is held that concerned workman after expiry of apprenticeship was not appointed as Probationary Development Officer. Instead he continued to work as Apprentice." 36. A 'workman' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 must not only establish that he is not covered by the provisions of the Apprenticeship Act but must further establish that he is employed in the establishment for the purpose of doing any work contemplated in the definition. Even in a case where a period of apprenticeship is extended, a further written contract carrying out such intention need not be executed. But in a case where a person is allowed to continue without extending the period of apprenticeship either expressly or by necessary implication and regular work is taken from him, he may become a workman. A person who claims himself to be an apprentice has certain rights and obligations under the statute. 37. In case any person raises a contention that his status has been changed from apprentice to a workman, he must plead and prove the requisite facts. In absence of any pleading or proof that ....
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....he expression 'management' cannot be assigned to the expression 'management' occurring in Section 64 of the Act. In the present case, the context does not permit or requires to apply the defined meaning to the word 'management' occurring in Section 64 of the Act."" 41. In Sri Chittaranjan Das vs. Durgapore Project Limited & Ors. [1995 (2) CLJ 388], it was opined: "In my opinion, it is not difficult to resolve the apparent conflict. Both in the Industrial Employment (Standing Order) Act, 1946 as also the certified Standing Order of the company the word "including an apprentice" occurs after the word 'person'. In that view of the matter in place of the word 'person', the word 'apprentice' can be substituted in a given situation but for the purpose of becoming a workman either within the meaning of the 1946 Act or the standing order framed thereunder, he is required to fulfil the other conditions laid down therein meaning thereby he is required to be employed in an industry to do the works enumerated in the said definition for hire or reward, whether the terms of employment be express or implied." 42. The question as to wh....