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TMI Blog1994 (12) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... ining, he was appointed as an apprentice in terms of the provisions of the Apprentice Act, 1961, by respondent 1 in terms of an office order, dated April 28, 1986, and he continued to work as such till 1988. 6. The petitioner contended that his date of birth was recorded by the respondent-company at the time of his appointment as an apprentice. The petitioner got a regular employment from the respondent-company on July 19, 1994. He intended to join the post of Shramik, but his joining report was not accepted in absence of proof of his date of birth. 7. The contention of the petitioner in short is that in terms of the Standing Order framed by the respondent under Section 7 of the Industrial Employment (Standing Orders) Act, 1946, his date of birth having been recorded as September 10, 1959, and the same having been accepted by the respondent in terms of Clause 4 of the Standing Order, the respondent cannot insist upon filing of the original certificate to be granted by the West Bengal Higher Secondary Board. 8. The contention of the respondent, on the other hand, appears to be that the appellant is not a workman within the meaning of the said provision and thus he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of admission of the petitioner and in view of the fact that the age recorded in the Matriculation Certificate is taken from the school register, the same must be held to be correct. Reliance in this connection has been placed upon . 16. It was further submitted that the respondent cannot be allowed to make out a third case in its affidavit. Reliance in this connection has been placed upon . 17. It was further submitted that the respondent has suppressed the material document namely the service sheet and thus an adverse presumption may be drawn against it. On the aforementioned proposition, Sri Roy has relied upon AIR 1967 Cal. 151. It was further submitted that this Court must also take into consideration the conduct of the respondent as arbitrary as the service of the petitioner has already been terminated. 18. The learned counsel in the connection has relied upon . 19. The learned counsel also submitted that this Court can also go into disputed question of fact. 20. Sri Bandopadhyay, learned counsel appearing on behalf of the respondent raised the following contentions: (1) An apprentice is not a workman. (2) Effect must be given to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a trainee does not arise. Reliance in this connection has been placed upon by the learned counsel in 1994 I LLN 569, 1994 2 SCC 768, (1973-II-LLJ-266) (SC), 1986 II LLN 976 and 1975 II LLN 498. 29. It was submitted that the petitioner did not have any legal right to be appointed The learned Counsel contends that as allowing the petitioner to join his job is within the discretionary Jurisdiction of the employer this Court cannot interfere with the impugned order in exercise of its writ jurisdiction. Reliance in this connection has been placed upon Uttar Pradesh State Road Transport Corporation and Anr. v. Mohammed Ismail and Ors. (1991 -II-LLJ-332) (SC) 30. The learned counsel further produced before us a xerox copy of the admit card which shows that the column meant for recording the date of birth is blank. The learned counsel further produced before us a copy of the letter dated September 26, 1994 issued to the respondent by the West Bengal Board of Secondary Education. A perusal thereof shows that the date of birth of the petitioner recorded in its records was September 1, 1957. According to the learned counsel the onus of proof, thus, shifted to the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of a managerial nature. 36. The said definition is in pari materia with the definition of workman as contained in the Industrial Disputes Act, 1947. The question as to whether an apprentice is a workman within the meaning of the provision of the said Act or not would be considered a little later, At this juncture let us consider the provision of the Apprenticeship Act and the rules which have been framed by the Central Government in exercise of its power under Section 37(1) of the 1961 Act. Establishment has been defined in Section 2(g) of the 1961 Act which includes any place where an industry is carried on. Section 2(i) enumerates the establishments in public sector. Respondent 1 comes within the purview of the said definition. Rule 10 of the Rules provide for records and returns to be maintained and submitted to the authorities prescribed therein. The prescribed form stipulating filing of returns of personal details of the apprentice, inter alia, provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineering and Locomotive Company Ltd. (1976-I-LLJ-81) the Apex Court while considering the definition of workman under the Employees' State Insurance Act held that an apprentice is not a workman. 48. In Hanuman Prasad Choudhury v. Rajasthan State Electricity Board, Jaipur 1986 II LLN 976. S.C. Agarwal, J. (as His Lordship then) was, held, in Paras, 13 and 14, at pages 982 and 983. This would show that an apprentice who is a workman under the said regulations would include a person who may not be an apprentice under the Apprentices Act. In that view of the matter, it can be said that for the purpose of Section 2(s) of the Industrial Disputes Act a person who is designated as apprentice but is not governed by the Apprentices Act would be a workman governed by the provisions of Industrial Disputes Act. But an apprentice who is governed by the provisions of the Apprentices Act, would not be a workman under Section 2(s) of the Industrial Disputes Act and would not be governed by the provisions of the Industrial Disputes Act. 14. Apart from the aforesaid principle of harmonious construction, the conflict between the provisions of Section 2(5) of the Industrial Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prentice or not, can be regarded as a workman only if he is employed in an industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment are express or implied. 49. In Satvinder Singh and Ors. v. State of Punjab and Ors. reported in 1986 (2) SLR 437, M. Punchhi, J. (as his Lordship then was) upon considering the provision of Apprenticeship Act observed: Rather Section 18 of the Act specially says that every apprentice undergoing apprenticeship training in the designated trade in the establishment shall be a trainee and not a worker. The note is specific in that regard that one must have rendered one year's service as an employee of the Punjab State Electricity Board and not having received one year's training in the Board. Both status cannot be equated in any event. Thus, I am of the considered view that the petitioner did not hold the qualifications to claim the posts and were rightly declined interview by the Board despite being called. 50. Same view has recently been taken in Tannery and Footwear Corporation of India Ltd. v. Labour Court II Kanpur, 1994 II LLN 481. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the University or Board of Secondary Education or similar educational authority nor filed any certified copy of the date of his birth as recorded in the Register of Municipality or local authority or filed any other documents as provided for in Rule 4 of the Certified Standing Order of the respondent-company. 55. It is true that the petitioner filed a certificate obtained from the Headmaster of the school. Such certificate given by the Headmaster may be admissible in evidence in a suit. Assuming that the school leaving certificate which has been produced by the petitioner for the first time in this Court may be taken to be admissible in evidence in terms of Section 35 of the Evidence Act as Sri Pratap Roy contends but the same also is not conclusive. The petitioner evidently although passed the Matriculation Examination did not produce his Matriculation Certificate. He has not denied that he had appeared in the said examination. 56. The petitioner's admit card did not contain his date of birth. The contention of Sri Roy that as the petitioner appeared as an external candidate no date of birth was recorded therein cannot be accepted. An external candidate pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till then in view of the aforementioned letter of the Board, the petitioner prima facie tried to play fraud with the respondent-company. 63. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation. 64. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the Petitioner, the same is not sacrosanct nor the respondent-company would be bound thereby. 65. In S.P. Chengalvaraya Naidu v. Jagannath, reported in AIR 1994 SC 243, it was held that a decree obtained by fraud is a nullity and non est in the eye of law. 66. In Mahish Kumar v. State of Bihar reported in 1994 (1) BLJ 456 a Division Bench of the Patna High Court had held that admission obtained in M.B.B.S. course by practicing fraud being a nullity: the principles of natural Justice are not required to be complied with in the event such admissions are cancelled. 67. In Smt Shrisht Dhawan v. Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to furnish documents showing his date of birth. He could not have refused to do so only on the ground that his date of birth was recorded earlier in the records of the respondents while he was an apprentice. Principles of natural Justice supplements the law and not supplants it, nor can it be brought in service with a view to stultify the law. (See Dr. Rash Lal Yadav v. State of Bihar and Ors. ). 77. Moreover in this case admittedly a dispute has arisen relating to the exact date of birth of the petitioner. Such a dispute cannot be resolved in a proceeding under Article 226 of the Constitution of India. 78. For the views I have taken, it is not necessary to consider the effect of the provisions of Section 35 of the Evidence Act nor is it necessary to consider the decisions relating to drawing of presumption in terms of Section 114 thereof. 79. A presumption under Section 114 may not be drawn by a Court. 80. In a case of this nature where a certificate of date of has been granted by a Head- master of a private institution. Drawing of presumption under Section 114 of the Indian Evidence Act does not arise. In any event, such presumption e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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