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TMI Blog2004 (10) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... ntice' 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 provisions of any labour laws. 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 Section 37 of the Act confer certain benefits upon the apprentices. If an employer fails to perform his statutory 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strial 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 Vs. Talcher Regulated Mkt. Committee Anr., [(2004) 6 SCC 178]. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e M/s. Sainik Motors, Jodhpur and others, Vs. 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 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 well 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 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 record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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. 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 within a period of three months in terms of Rule 4B of the Apprenticeship Rules, 1962. The Act nowhere provides for the consequences of non-registration. It is not in dispute that the list of apprentices used to be 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, 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 conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Heydon's case. [(1584) 3 Co. Rep. 7a]. [See Ashok Leyland Ltd. Vs. State of Tamil Nadu Anr., (2004) 3 SCC 1 and Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd. (2004) 1 SCC 702]. The mischief rule enables the court to take into consideration the following four factors for construing an Act: (i) What was the law before the making of the Act, (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. 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. 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 apprenticeship a nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaded 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 enure 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. 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 fulfills the requirements of the said term. [See Mukesh K. Tripathi Vs. Sr. Divn. Manager, LIC Ors. JT 2004 (7) SC 232 = 2004 (7) SCALE 442]. In Bruton Vs. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apprentices Act, and to whom provisions of Section 18 of the said Act are not applicable, would, nonetheless, be included in the definition of 'workman' under the I.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 only 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 of non- registration of contract of apprenticeship, is deemed to be a trainee or an 'apprentice', he would, nonetheless, be covered within the definition of 'workman' under Section 2(s) of the I.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 vs. P.O. Labour Court, Bokaro Steel City and Others [1998 (80) FLR 399] to the effect that The Appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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