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TMI Blog2004 (9) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 Division Office, Life Insurance Corporation of India, Kanpur." 4. The services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifest 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 appointed and confirmed as a Development Officer the question of his becoming a workman would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 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 tribunal's conclusion that Mukerjee was a workman is incorrect. The tribunal seems to have been led away by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 very same contention, viz., if a person did not fall within any of the categories of manual, clerical, supervisory or technical, he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution 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 full-fledged officer of the Corporation. Only an officer of the Corporation duly appointed can perform the functions of recruiting agents and take steps fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 executed one part of an instrument of apprenticeship, a recital in that part of the instrument that the apprentice had bound himself apprentice to the master is evidence against the master that the appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 either by novation of the contract or by reason of the conduct of the parties, such a change has been brought about, an apprentice cannot be held to be workman. 38. It is true that the definition of 'workman' a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' 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 who would answer the description of the term 'workman' fell for consideration before this Court in Dharangadhra Chemical Works Ltd. vs. State of Saurashtra and Others [AIR 1957 SC 264], wherein this Court held : "The essential condition of a person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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