ORDER M.L. Bhat, J.
1. The award of the Labour Court II, Kanpur dated November 29, 1990 is prayed to be quashed in this petition. The said award has directed reinstatement of the respondent No. 2 after recognising him as a workman and has also directed to regularise his services from December 17, 1985. He is entitled to get back wages also. A reference seems to have been made to the Labour Court to consider whether the termination of the service of the respondent No. 2 with effect form November 5, 1983 was proper and legal. If the termination is not treated proper and legal, what is the relief available to him? On proof of the claim of the respondent No. 2, was he entitled to work as Machine Operator and get wages of the said post and could he be regularised on the said post, if so, from which date and on what terms?
2. From the record it is revealed that the respondent No. 2 was enrolled as an apprentice under the Apprenticeship Act of 1961 (hereinafter called as 'the Act of 1961') on November 5, 1981. The period of training was two years and in terms of the provisions of the Act on completion of training a certificate was issued to the respondent No. 2. The terms and conditions of the enrollment of the respondent No. 2 are contained in the letter dated October 27, 1981 copy whereof is annexed as Annexure 1 to the writ petition. In view of the acceptance of the terms and conditions of the enrolment letter he is said to have been enrolled as apprentice. He was to get consolidated stipend of Rs. 130/- per month, which is reflected by Annexure 3 to the writ petition. A contract of apprenticeship under the statute is said to have been sent in triplicate to the concerned authorities for registration as required under Section 4(4) of the Act of 1961. A copy of the contract with covering letter is Annexure 4 to the writ petition. On October 13, 1983 the respondent No. 2 is said to have been informed that on completion of his training under the Act of 1961 he will be released on November 4, 1983. This is reflected by Annexure 5 to the writ petition. A certificate is said to have been issued to the respondent No. 2 on completion of his training on November 18, 1983. The said certificate was received by him without raising any objection. This is reflected by Annexure 6 to the writ petition. The respondent No. 2 seems to have raised an industrial dispute with the petitioner. His contention was that though the training period under the Act was two years but he was put in charge of Tongue Machine Operator in the department in place of the person, who was promoted from the said post to the post of Group Leader on February 5, 1982. With effect from February 5, 1982 the respondent No. 2 had started working against the vacancy caused by the promotion. The Boot factory Manager had written a note on March 12, 1982 to the Officiating Personnel Manager to confirm the petitioner as Tongue Machine Operator. Another letter is said to have been written on June 25, 1982 by the Divisional Manager for the confirmation of the respondent No. 2 on the post. The respondent No. 2 is also said to have made a representation for being designated as Tongue Machine Operator and for being made permanent and for payment of wages attached to the said post. However, his services are said to have been terminated on November 4, 1983 with effect from November 5, 1983 without any justification. The respondent No. 2 had claimed that his services were terminated illegally and without any justification. He was working against the permanent vacancy of Tongue Machine Operator with effect from November 5, 1983 and he was entitled to be paid salary of the said post and regularised with back wages.
3. The petitioner seems to have denied the claim of the respondent No. 2 and it is contended that he was only an apprentice under the Act of 1961, therefore, he was not a workman who could be appointed against the post of Tongue Machine Operator and paid salary. His services could not be regularised.
4. The sole question that falls for consideration of this Court is whether the respondent No. 2 was apprentice under the Act of 1961 or he had become the workman of the petitioner and was entitled to any benefit under the Industrial Disputes Act. The Labour Court has decided the reference in favour of the respondent No. 2 after taking him as a workman and has applied the provisions of the Industrial Disputes Act to him. The petitioner challenges the findings of the Labour Court and contended that the respondent No. 2 is not a workman, therefore, he was not entitled to any relief from the Labour Court. Arguing for the petitioner Mr. V.B. Singh has submitted that apprentices enrolled under the Act of 1961 are not workers. Reference is made to Section 18 of the Act of 1961. The said section reads as under:-
"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 be a 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."
5. On the basis of the aforesaid statutory provision it is argued that the respondent No. 2 could not be treated as a workman and no provision of the Industrial Disputes Act would apply in relation to the respondent No. 2. He was a trainee and on completion of his training, he , under the statute and under the contract of apprenticeship would cease to be a trainee. The provisions of the terms and conditions of his appointment and the contract, which is entered with the respondent No. 2 were thoroughly read by Mr. Singh. After completion of training he has no right whatsoever to claim regularisation or confirmation or permanency in respect of any job with the petitioner. The apprentice has certain obligations which he has to fulfil after being enrolled. One of the obligations of the apprentice is that he has to conduct himself as a trainee and not as a worker. He has to learn his trade conscientiously and diligently and endeavour to qualify himself as a skilled craftsman in his trade before the expiry of period of his training. The contract which the petitioner has signed is a statutory contract. The contract is terminated on the expiry of period of apprenticeship training after complying with certain formalities as regards information to the authorities.
6. Reliance was placed by the learned Counsel for the petitioner on the case of Karuna Shanker Tripathi v. State of U.P., reported in 1992 (65) IFLR 203. The Lucknow Bench of this Court has drawn a distinction between apprentices under the Act of 1961 and apprentices who do not fall within the ambit of Section 18 of the Act of 1961. If a person is an apprentice under the Act of 1961 he cannot be treated as a workman and after completing his training he is not entitled to be retained in service. In such a case the provisions of the Industrial Disputes Act would not be attracted. If the apprentice is not appointed under Section 18 of the Act of 1961, he would be apprentice in accordance with the general term and would be covered by the definition of 'workman' under the Industrial Disputes Act. Reliance is placed on a decision of the Supreme Court given in the Employees State Insurance Corporation v. The Tata Engineering and Locomotive Co. Ltd., (1976-I-LLJ-81). A distinction was drawn between an apprentice under the Industrial Disputes Act and apprentice, who was enrolled by a contract. It was held that apprentices are mere trainees for a particular period for a distinct purpose and the employer is not bound to employ them in their work after the period of their training is over. Rajasthan High Court in the case of Hanuman Prasad Chaudhary v. Rajasthan State Electricity Board, Jaipur, reported in 1986 Lab 1C 1014 has also taken a similar view. An apprentice who was enrolled under the Act of 1961 was held to be not an apprentice for the purpose of the Industrial Disputes Act. In Narendra Kumar v. The State of Punjab, reproted in (1985-I-LLJ-337) it has been held that the employer has no obligation to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor does it oblige the apprentice to accept any employment under the employer. However, if there is a contract to the contrary, the terms of the contract would bind the parties and if an employer under the contract is obliged to offer certificate to the apprentice he has to offer certificate to him in the same way if the apprentice has agreed to serve the employer after training then he has to fulfil his obligations.
7. The learned Counsel for the respondent No. 2 has submitted that the respondent No. 2 was permitted to work on the post of Tongue Machine Operator and there were recommendations in his favour, therefore, he became the workman with effect from February 5, 1982 and he would be governed by the provisions of the Industrial Disputes Act. He has also relied on Section 2(s) of the Industrial Disputes Act, which defines 'workman' and which reads as under-
"2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial 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, but does not include any such person.
(i) who is subject to the Air Force Act 1950 (45 of 1950), or the Army Act, 1950, or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisor capacity draws wages exceeding one thousand six 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."
8. The apprentice is included in the definition of 'workman', therefore, it is submitted that the respondent No. 2 would be a workman within the meaning of 'workman' under the Industrial Disputes Act. He has also relied on an authority of the Karnataka High Court in the case of The Management of Tungabhadra Sugar Works (P) Ltd. v. The Presiding Officer, Labour Court, reported in 1983 Lab IC 1185 and has submitted on the basis of this authority that the existence of relationship of employer and employee is the essence of the matter. Mere proof that a person is an apprentice or a trainee is not sufficient. He has also relied on an authority of the Madhya Pradesh High Court in the case of Madhya Pradesh Electricity Board v. Basant Kumar Pandey reported in (1991-I-LLJ-323). It is held that for application of Section 18 of the Apprentices Act it is necessary that the conditions enumerated in Clause (a) of that section must be satisfied. A person labelled as an apprentice must be undergoing apprenticeship training in a designated trade in an establishment.
9. According to the learned Counsel for the respondent No. 2, respondent No. 2 was not undergoing apprenticeship training in a designated trade but was put in charge of some other work in place of other man who was promoted and he was asked to discharge his functions and, therefore, he ceased to be an apprentice under the Act of 1961. The learned Counsel for the respondent No. 2 also relied on some office notes contained in Annexure CA1 AND CA2 to the counter affidavit. In one of the notes a certificate of efficiency and honesty is given to the respondent No. 2 and a request is made that his case may be ; considered for regularisation in service. The second note is also to the same effect. This is a recommendation to absorb the respondent No. 2 as Tongue Machine Operator in Grade 'C. However, these are only recommendations and ] not orders, therefore, the learned Counsel for the respondent No. 2 was not correct in saying that two orders were issued in favour of respondent No. 2 whereby he was appointed as Tongue Machine Operator. There is a distinction between ; the appointment order and a recommendation or a testimonial. Recommendation and testimonial do not confer any vested right on a person. The recommendation and testimonial can be considered by the appointing authority and in this case the appointing authority was requested to consider the efficiency of the respondent No. 2 and allow him to hold the post of Tongue Machine Operator, but no order for regular appointment of the respondent No. 2 was made by any authority. The learned Counsel for the respondent seems to be under the impression that since the respondent No. 2 had worked for sometime in place of some regular employee, therefore, he has become the employee of the petitioner during the training period notwithstanding the terms of the contract between him and petitioner and the provisions of the Apprentices Act of 1961.
10. On consideration of the material and the law applicable to the subject it is to be held that the respondent was an apprentice under the Act of 1961. He was governed by Section 18 of the said Act and had not become a workman under the Industrial Disputes Act. The Industrial Disputes Act would include apprentice in the definition of 'Workman' but the expression 'apprentice' used in Section 2(s) of the Industrial Disputes Act connotes an apprentice, who is not an apprentice under Section 18 of the Act of 1961. An Industry may engage a worker on the | apprenticeship basis and impart training to him for making him a trained skilled labour or semiskilled labour for a particular trade. Such an apprentice would not be governed by Section 18 of the Act of 1961. An employer has prerogative to impart training to its workers, who are skilled or unskilled, and appoint them against any post after the said workers achieve efficiency and during the period of training they may be treated as probationer or apprentice, but such workers necessarily do not become apprentices under the Act of 1961.
11. An apprentice appointed under the Act of 1961 would not become apprentice for the purpose of Section 2(s) of the Industrial Disputes Act. In fact there is no conflict between Section 18 of the Apprentices Act and Section 2(s) of the Industrial Disputes Act. Under the two statutes the expression 'apprentice' is used with a different connotation and meaning.
12. The respondent No. 2 admittedly was enrolled as an apprentice under the Act of 1961. He was governed by the terms of his enrolment as also by the contract of apprenticeship, which was entered into between him and the petitioner vide Annexure 4 to the writ petition. No obligation is cast on the petitioner to employ the respondent No. 2 after completion of the training period. During the course of training, there is no right or title in the respondent No. 2 to seek appointment against a regular post. Under the contract an apprentice has to conduct himself during the training period as a trainee and not as a worker. This is one of the obligations of the apprentice arising out of the contract. The apprentice was to get only a consolidated pay of Rs. 130/- per month in the arrangement, which was made with him. Having accepted the enrolment as apprentice and having undergone the training as such, he cannot turn round during the course of training and say that he became a regular employee merely because he was put in charge of some work by the petitioner. There was no master and servant relationship between him and the petitioner. He was an apprentice undergoing training and governed by the provisions of the contract which he never challenged during the course of his apprenticeship training. He was informed on October 13, 1983 that his training will come to an end on November 4, 1983 and he appears to have signed this document without any objection. His name was to be struck off from the pay roll with effect from November 4, 1983 of which information was given to the respondent No. 2. He was issued testimonial also on November 18, 1983 about his work during the training period.
13. The Labour Court in its award seems to have relied on Section 2(s) of the Industrial Disputes Act. It has not at all adverted to the provisions of Section 18 of the Apprentices Act of 1961. That section precludes the respondent to take benefit of any Labour Law as an apprentice. Therefore, there is a glaring mistake and error apparent on the face of the award. The respondent No. 2 had never become a workman nor could he be treated as a workman. There is an overwhelming evidence on record that the respondent No. 2 was an apprentice under the Act of 1961. He was bound by the terms and conditions of his enrolment and by the terms and conditions of the apprenticeship contract which he; entered with the petitioner. He was to get only Rs. 130/- per month as consolidated pay during the period of training and after completion of the training he was to be relieved by the petitioner. All these formalities have been completed and under Section 22 of the Act of 1961 the petitioner had no obligation to offer him service even after completion of his training. The contention of the respondent No. 2 that he was appointed only after three months of his enrolment in place of some Tongue Machine Operator is not borne out from the record. There is no appointment letter in favour of the respondent No. 2. He might have been asked to discharge the functions of some mechanic during the training period but that would not make him an employee of the petitioner or a workman within the meaning of Section 2(s) of the Industrial Disputes Act. The recommendations, which are made in his favour by some officers to the higher authorities for considering him for appointment on the basis of his efficiency and hard work, would not make him a workman unless there was some appointment letter in pursuance of those recommendations. A recommendation or testimonial could not be termed as appointment order. The respondent No. 2 had never ceased to be apprentice trainee during the period of two years i.e from November, 1981 to November, 1983. He has been relieved also as apprentice and given certificate of good behaviour, which he had accepted as trainee. Therefore, the respondent No. 2 cannot be heard to say that he was a workman under the Industrial Disputes Act.
14. For the reasons stated above, the writ petition succeeds and is allowed. The impugned award dated November 29, 1990 passed by the respondent No. 1 is hereby quashed as being invalid and bad in law. The claim petition of the respondent No. 2 before the respondent No. 1 under the Industrial Disputes Act shall stand dismissed. There will be no order as to costs.