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1994 DIGILAW 330 (DEL)

SANJAY KUMAR v. UNION OF INDIA

1994-05-07

ARUN KUMAR, R.C.LAHOTI

body1994
Arun Kumar ( 1 ) THIS common judgment shall govern the disposal of CWP 1271 /92,2659/92 and 2664/92, all the three raising common questions of law in the background of common set of facts and the three petitions having been heard analogously. ( 2 ) ON 9th January, 1990, the petitioners were appointed as Apprentices for the term of two years by the respondents. Vide order dated 6. 1. 92 the apprenticeship training period of the petitioners was extended upto 30. 1. 1992. The performance of the petitioners as apprentices was satisfactory. From 1. 10. 1991, certain posts of Junior Scientific Assistant in the employment of respondent No. 2 had fallen vacant. The petitioners were all called for interview on 21. 10. 1991. One of the terms of the letter of appointment dated 9. 1. 1990 appointing the petitioners as apprentice scientists was: "5. You are required to sign the enclosed bond to reimburse to this Board the expenditure incurred or a sum of Rs 30,000. 00 whichever is higher, in case of a default from your side as detailed in the enclosed bond form by the Board during your training in the Board. " ( 3 ) THE letter was accompanied by a proforma of surety bond, which the petitioners were required to fill in and which they did fill in. Term No. 3 of the surety bond reads as under : "3. That the employee shall be bound to join the post if any offered by the employer to the employee after successful completion of the period of apprenticeships of two years. " ( 4 ) ON 4. 2. 1992, the respondent No. 2 issued an office memorandum whereby Clause 5 of the appointment letter with regard to surety bond condition was directed to be deleted pursuant to some office order of the Board dated 19. 9. 1991. This change in the terms of appointment letter was done without the consent of the petitioners. ( 5 ) THE respondents thereafter did not appoint the petitioners as Junior Scientific Assistant and instead terminated their apprenticeship. 9. 1991. This change in the terms of appointment letter was done without the consent of the petitioners. ( 5 ) THE respondents thereafter did not appoint the petitioners as Junior Scientific Assistant and instead terminated their apprenticeship. The petitioners having approached this Court at a point of time when the respondents were going to make other appointments on the posts of Junior Scientific Assistants, this Court protected them by issuing an interim direction that any appointment to the post of Junior Scientific Assistant made by the respondents shall be subject to further orders of this Court. ( 6 ) THE case of the petitioners is that they are governed by the provisions of the Apprentices Act, 1961 and in accordance with Section 22 (2) thereof, the respondents were bound to offer suitable employment to the petitioners and the petitioner 405 apprenticeship could not have been terminated so abruptly. ( 7 ) THE defence of the respondents is that the Apprentices Act, 1961 does not apply to them and moreover Clause 5 of the appointment letter having been deleted, the petitioners were not entitled to avail the benefit of Section 22 (2) of the Act. ( 8 ) THE leaned Counsel for the petitioners has placed implicit reliance on the law laid down by the Supreme Court in Narinder Kumar and Ors. v. State of Punjab 1985 (1) SCC 130 and in our opinion rightly so. ( 9 ) LOOKING to the terms of the appointment of the petitioners, it cannot be denied that they were "apprentices", appointed by the respondents to under "apprenticeship training", as defined under Clauses (aa) and (aaa) of Section 2 of the Act. Section 22 of the Act provides as under :- "22. Offer and acceptance of employment:- (1) It shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer. Offer and acceptance of employment:- (1) It shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer. (2) Notwithstanding anything in Sub-section (1) where there is a condition in a contract of apprenticeship that the apprentice shall after the successful completion of the apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract. Provided that where such period of remuneration is not; in the opinion of the Apprenticeship Adviser, reasonable, he may revise such period or remuneration so as to make it reasonable and the period of remuneration so revised shall be deemed to be the period of remuneration agreed to between the apprentice and the employer. ( 10 ) THE above said provision came for the consideration of their Lordships of the Supreme Court in Narinderkumar s case ( supra ). Referring to Sub-section (2) of Section 22, their Lordships observed :- "this Sub-section leaves no doubt that despite the provision contained in Sub-section (1) the employer is under an obligation to offer suitable employment to the apprentice if the contract of apprenticeship contains a condition that the apprentice shall serve the employer after the successful completion of the training. Indeed, when such an offer is made, the apprentice on his part is bound to serve the employer in the capacity in which he was working as an apprentice. " (emphasis supplied ). ( 11 ) THE petitioners accepted the appointment as apprentices in terms of appointment letter dated 9. 1. 1990. They were required to sign and submit the bond in the proforma accompanying the appointment letter. The term No. 3 of the bond clearly contemplated that the petitioners had no choice to deny the employment offered by the employer. ( 11 ) THE petitioners accepted the appointment as apprentices in terms of appointment letter dated 9. 1. 1990. They were required to sign and submit the bond in the proforma accompanying the appointment letter. The term No. 3 of the bond clearly contemplated that the petitioners had no choice to deny the employment offered by the employer. The term clearly suggests, as was the case before their 406 Lordships in Naiinder Kumar s case (supra), that on successful completion of the period of apprenticeship of two years, the respondents were to offer employment to the petitioners and the petitioners were bound to join. The surety bond created reciprocal obligations. The term could not have been withdrawn ex-parte by the respondents. The petitioners had successfully completed the period of probation. The very fact that the respondent had initiated the process of appointment of Junior Scientific Assistants and had also called the petitioners for interview, clearly suggests that the vacancies were also available with the respondents where against the petitioners could have been appointed. The respondent cannot be permitted to wriggle out of their obligation contemplated by Section 22 (2) of the Act. 12. Though the respondents have contended that the Apprentices Act, 1961 is not applicable to them, but they have not been able to substantiate their plea. Theres is an establishment and they are an employer. They are appointing apprentices undergoing apprenticeship training. Nothing has been pointed out to exclude the applicability of the Act to them. 13. We may deal with and dispose of a preliminary objection raised on behalf of the respondents to the maintainability of the petitions. It is submitted that Section 20 of the Act provides an altetnate efficacious remedy to the petitioners which having not been availed, the petitions would not lie. Section 20 of the Act reads as under : - "20. settlement of disputes)- (1) Any disagreement or dispute between an employer and an apprentice arising out of the contract of apprenticeship shall be referred to the Apprenticeship Adviser for decision. (2) Any person aggrieved by the decision of the apprenticeship Adviser under Sub-section (1) may, within thirty days from the date of communication to him of such decision, prefer an appeal against the decision to the Apprenticeship Council and such appeal shall be heard and determined by a Committee of that Council appointed for the purpose. (2) Any person aggrieved by the decision of the apprenticeship Adviser under Sub-section (1) may, within thirty days from the date of communication to him of such decision, prefer an appeal against the decision to the Apprenticeship Council and such appeal shall be heard and determined by a Committee of that Council appointed for the purpose. (3) The decision of the Committee under Section (2) and subject only to such decision, the decision of the Apprenticeship Adviser under Section (1) shall be final. " 14. To attract the applicability of Section 20, there must be disagreement or dispute arising out of the contract of apprenticeship. 15. In the case before us the. very existence of contract of apprenticeship is in dispute in view of the terms thereof having been altered by the respondent. The plea under Section 20 aforesaid does not lie in the mouth of the respondents inview of their stand that benefit of the Act was not available to the petitioners. What petitioners are agitating is not any disagreement or dispute "arising out of the contract of apprenticeship. They are seeking enforcement of the statutory obligation of the employer arising under Section 22 of the Act. The plea of availability of alternate efficacious remedy therefore, fails. 16. For the foregoing reasons, all the three petitions are allowed. The respondents are directed to appoint the petitioners in all the three cases as Junior Scientific Assistants within a period of two months from today. Petition allowed.