(1.) TWO matters are taken up together for disposal. The petitions are by the employer. M. P. Electricity Board, and respondents in the two petitions are employees/workmen. True, the main contention which counsel for the petitioner pressed in these two petitions relates to the status of the two respondents in each case contesting the position that M. P. Electricity Board and Ors. vs. Basant Kumar Pandey (02. 02. 1989 -MPHC) Page 2 of 5 they were not workmen, but apprentices. But, for reasons to follow, we propose to hold them not to be apprentices, as contended.

(2.) AWARDS have been passed separately in case of each of the respondent/workmen or employee, but the nature of relief granted to them is the same. Both of them have been reinstated in service and have been awarded back wages. We have taken the view in this matter that a part of the award would stand, while the other part of the award concerning back wages must go. This we say for the following reasons.

(3.) K. N. Gupta, who has appeared for the petitioners in both cases, laboured hard to convince us that to the both respondents the provisions of the Apprentices Act, 1961, are applicable and on that footing, counsel contended that the two respondents, Ramashankar Sharma and Basant Kumar should be deemed apprentices. However, for a single, singular and salutary reason, we hold that contention to be wholly meritless. We have looked at the main provision cited from the Apprentices Act, which we extract:

"18. Apprentices are trainees and not workers - Save as otherwise provided in this Act.- (a) every apprentice undergoing apprenticeship training in a designated trade in an establishment shall he trainee and not a worker,. and (b) the provisions of any law with respect to labour shall not apply to or in relation to such apprentice".

We do not think if any argument is necessary to establish the legal position that for the application of the said Act, the necessary conditions enumerated in Sub-clause (a) aforequoted must be satisfied. Indeed, unless and until it is established in any particular case that the person sought to be labelled as an apprentice is undergoing, apprenticeship training in a designated trade in an establishment, there would be no scope for making any reference or placing any reliance on the provisions of the said Act. It has to be established by pleading and proof in any particular case that the person concerned was being given training in a designated trade and that term is defined in Section 2 (2) (e) which also we quote:

(e) designated trade means any trade or occupation or any subject field in engineering or technology which the Central Government, after consultation with the Central Apprenticeship Council, may, by notification in the Official Gazette, specify as a designated trade for the purposes of this Act. In the instant case, there is neither any pleading nor any proof of the feet that the establishment of the petitioner, namely, M. P. Electricity Board, has been notified by the Central Government in the Official Gazette as designated trade for the purpose of the Apprentices Act, 1961. We do not think if we have to say anything more on this aspect of the contention raised by Shri Gupta and argued with great vehemence by him.

(4.) THE impugned award in both cases, in our view, is fully supported by the provisions of the Annexure to M. P. Industrial Employment (Standing Orders) Rules, 1963. The term permanent employees is defined in Clause 2 of the Annexure. Classification of employees of an industrial concern is made in Clause 2 of the Annexure and in sub-clauses (i) and (vi) respectively are defined terms permanent and temporary employee. This Court had an occasion recently to construe these provisions. The Division Bench of this Court construed the terms aforementioned in the State of M. P. v. Ram Prakash (1990-I-LLJ-551), to hold that dispute can be raised by an employee with regard to his dismissal if he is not treated as permanent employee on the statutory conditions enumerated in Clause 2 of the Annexure being satisfied by him. Indeed, as per proviso to sub-clause (vi), it has been held in Ram Prakash (supra), that any employee who has worked continuously for more than six months in an industrial establishment shall be deemed to be a permanent employee. Another Bench of this Court has reiterated the view expressed in Ram Prakash (supra) and that decision is rendered in M. P. S. R. T. C. , Gwalior v. Harish Agarwal and others (M. P. No. 790 of 1986 decided on 9th January 1989.) One of us (Dr. T. N. Singh, J.) was a party to both the decisions. We do not think if today situation has changed or the law has changed for us to take a different view on the interpretation of the aforesaid provisions.

(5.) IN the instant case, the admitted position is that for much more than six months in each case, each of the respondents has rendered service under the establishment of the petitioner-M. P. Electricity Board. Though we have before us the agreement of apprenticeship, filed in each case, we do not think if that would change in any manner the material completion of the Us in either case. The term apprentice is also defined in Clause 2 and we have no doubt, the relation between the parties in the instant case notwithstanding the contract, must be governed by the statutory provisions. Sub-clause (v) of Clause 2 of the Annexure prohibits any employee being regarded or classified as an apprentice if he has been given training for an aggregate period of more than a year. This seals the fate and fixes the final nail in the coffin of the case of the petitioner that the respondents could be validly told to pack up and go home because they had fulfilled their terms of service under the agreement. We do not think if we have to say anything more on this aspect of the case of the petitioners.

(6.) HOWEVER, we accept Shri Guptas very valid objection to a part of the award passed in each of the cases by which, in the mechanical exercise of its jurisdiction, the Labour Court, in each case, made an award for back wages and the Industrial Court, in appeal, confirmed that award. Sri Gupta has rightly drawn our attention to a decision of this Court in the case of Guna Central Cooperative Bank Ltd. (1987 M. P. L. J. 414), to submit that there is no whisper of any finding to be read in any of the awards as to whether the delinquent employee was in any gainful employment after termination of his service so that> he could be, and had to be, compensated for the loss suffered. Indeed, this view was taken by this Court on the holding of the Apex Court in the case of U. P. Warehousing Corporation v. Vijaya narayan (AIR)1980 S. C840), and we are clear in our mind that that decision of this Court has not suffered any erosion as no contrary view of Apex Court has been placed for our consideration. Sarvashri N. K. Jain and H. N. Upadhyaya, appearing respectively for respondents Basant Kumar and Ramashankar Sharma. submitted that in their written statement the employees/workmen made a claim for payment of back wages on the basis of their being out of employment. However, we do not think that the Labour Court or even the Industrial Court could have even given finding on that because there was no issue framed and no evidence led on the question as to whether the claimants in each case had not been gainfully employed during the relevant period. Accordingly, that part of the award is quashed and the matter is remitted to the Labour Court for deciding the question in accordance with law after framing proper issues and recording necessary evidence if so adduced by the parties.

(7.) IN the result, the petitions succeed to the extent hereinabove indicated. However, we pass no order as to costs in any of the cases. Outstanding amount of security be refunded to the petitioners.