JUDGMENT D.P. Singh, J.
1. Pleadings are complete and the parties agree that the petition may be finally disposed off under the Rules of the Court.
2. This petition is directed against an award of the Labour Court dated 31.3.1999 rendered in adjudication case no. 91 of 1997.
3. The respondent-employee claiming to have been appointed as an Apprentice Clerk (General) in the petitioner organization worked as such from 20.10.1984 to 19.10.1985, where-after she was not allowed to continue. After about 11 years, she made an application dated 1.12.1996 before Conciliation Officer claiming that though she was appointed as an apprentice but. in fact she was a workman and her disengagement was in violation of the provisions of U.P. Industrial Disputes Act, therefore, she should be reinstated with back wages.
4. After submission of a failure report, the dispute was referred to the Labour Court, IV Kanpur which registered it as adjudication case no. 91 of 1997. The parties filed their relevant pleadings which resulted in the impugned award holding that she in fact was a 'workman' and before her disengagement, the provision of the U.P. Industrial Disputes Act had not been complied with, therefore, it ordered her reinstatement and back wages from the date of the reference i.e. 25.7.1997.
5. Learned counsel for the petitioner has firstly urged that once she herself had admitted before the Labour Court that she .. was appointed as an apprentice, the Labour Court could not hold that she was a workman' even though the contract was not registered or filed before the Labour Court. In support of his contention, he has relied upon a three Judge Division Bench of the Apex Court rendered in the case of U.P. State Electricity Board v. Sri Shiv Mohan Singh and Ors. [J. T. 2004 (8) 2721 where it has been held that once a person is appointed as an apprentice, he will continue to be an apprentice unless a formal order of appointment is followed. In the aforesaid case, the Court was confronted with divergent views of Rajasthan, Kerala and our High Court stating that an apprentice does not ipso facto become workman even though they have worked for more than the contracted period. He has also pressed into service another three Judge Bench decision of the Apex Court rendered in the case of Mukesh Kumar Tripathi v. Senior Divisional Manager, LIC and Ors. [J. T. 2004 (7) 232] where it has been held, upholding a decision of our High Court, that the entire burden of proving that the incumbent was a 'workman' though described as an apprentice is upon him and even though he may continue beyond the fixed period, it will not, in all cases, by necessary implication, be deemed that he has become a 'workman'.
6. The Labour Court has found that the petitioner establishment has not produced the contract before it and on the basis of a decision of the Patna High Court rendered in the case of Ram Dular Pawan and Ors. v. Presiding Officer, Labour Court, Bokaro Steel City [1998 (80) F.L.R. 3991 has held that as the contract was neither filed nor registered, the respondent becomes workman. This finding of the labour Court goes against the settled law and as such cannot be upheld.
7. The learned counsel for the petitioner has then urged that no dispute existed after 11 years of her disengagement, and thus the reference was made without application of mind. It is contended that as it was a stale case all the documents were not within its possession and that is why during the pendency of the adjudication, a letter had been issued to the Apprentice Advisor summoning the record relating to the respondent employee, However, learned counsel for the respondent has vehemently urged that this document was never produced before the Court and as such cannot be relied upon. It is true that a document not produced before the Labour Court cannot be relied upon before this Court, but the existence of the document has not been denied by the respondent employee which lends credence to the contention of the counsel for the petitioner. Even otherwise no cogent explanation has been given by the respondent for lying dormant for 11 years and then approaching the Conciliation Officer with the only explanation that she was pursuing her case through oral and written request before the petitioner, but still not producing any such documents or filing any affidavit to that effect. This contention of the learned counsel for the petitioner also appears to be justified.
8. Mr B.N. Singh, appearing for the respondent insists that this petition is hit by laches as it was filed about two years after an award It is true that the .petition was filed belatedly, but it has remained pending for about 5years and pleadings have also been exchanged, therefore, it should not be thrown out only on this ground. The equity is also in favour of the petitioner. For those two years when the petitioner was not filed, the petitioner in all fairness have paid salary amounting to Rs.2,36,924/- through Banker's cheque even though they did not take any work from her. However, in spite of quashing of the award, the amount already paid would not be realized from her
9. For the reasons given above, this petition succeeds and is allowed and the impugned order dated 31.3.1999 is hereby quashed subject to aforesaid observation. No order as to cost.