IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 100 OF 2013
(Arising out of S.L.P. (C) No. 29987 of 2010)
Haryana Power Generation Corporation
Limited and Others ... Appellants
Versus
Harkesh Chand and Others ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The present appeal by special leave is directed against the judgment
and order dated 26th July, 2010 passed by the High Court of Punjab and
Haryana at Chandigarh in LPA No. 865 of 2010 whereby the Division Bench
concurred with the view expressed by the learned single Judge in CWP No.
1383 of 2009
whereunder the respondents were held entitled for grant of
Assured Career Progression Scale (for short “the ACP Scale”) on completion of ten years of service which included training as apprentice.
3. The facts as have been undraped are that the three respondents
invoked the writ jurisdiction of the High Court claiming the benefit of the
second ACP Scale on completion of twenty years of service on the base that
their period of training as apprentice had to be taken into consideration.
Such a claim was founded on the assertion that they had joined as trainees
between 17.4.1987 to 30.4.1987 and were subsequently absorbed and brought
into the cadre.
On completion of ten years from the date they entered the
service as trainees, the first ACP Scale was granted to them. However,
when conferring of the benefit of the second ACP Scale arose, the same was not extended to them.
The said action of the employer compelled them to
knock at the doors of the High Court and during the pendency of the writ
petition, by proceeding dated 23.4.2009, the benefits conferred under the
first ACP Scale was withdrawn referring to a notification issued on
11.3.1990 which stipulated in clause (4) that the trainees referred to
therein would be entitled to increment only on successful completion of
their training and in case of Plant Attendant Grade-II and Technician Grade-
II, increment on successful completion of training would be granted but
without arrears. Though the writ petition was confined to grant of the
second ACP Scale, yet the learned single Judge required the counsel for
both the sides to address about the justifiability of withdrawal of the
benefit of the first ACP Scale and decided both the facets. The said
exercise was undertaken by the learned single Judge as the primal issue in
respect of both the ACP Scales rested on the question whether the period
spent during training could be counted towards regular satisfactory service
or not.
4. It is not in dispute that the respondents were appointed as
Apprentice ITI Trainees by the erstwhile Haryana State Electricity Board
(for short “the Board”) for a period of two years on fixed pay of Rs.350/-
per month in 1987. The Board, vide Office Order No. 706/Finance dated
27.2.1998, set out the eligibility criteria for conferment of benefit of
the ACP Scales. There is no dispute that the respondents, who were
Technicians Grade-II, were not excluded from the application of the same.
The only question that really emerged for consideration before the learned
single Judge as well as by the Division Bench was the relevant date from
which the regular satisfactory service was to be computed for grant of ACP
Scales. The learned single Judge, after referring to the clause and the
communications issued by the Board from time to time, came to hold that the
regular satisfactory service would include the period spent by the persons
as trainees. As regards the withdrawal of the first ACP Scale, the learned
single Judge, referring to the notification dated 14.3.1990 and especially
to clause (4) which dealt with grant of increment and thereafter applying
the same reasoning, came to hold that clause (4) would have no operation to
override the Office Order dated 27.2.1998 which provides how the regular
satisfactory service could be reckoned and, eventually, came to hold that
the ACP Scale that had been withdrawn during the pendency of the writ
petition was absolutely erroneous. Being of this view, he quashed the
withdrawal order and issued a writ of mandamus commanding the respondents
therein to grant both the first and second ACP Scales reckoning the period
of training towards the regular satisfactory service.
5. In the Letters Patent Appeal, the Division Bench analysed the anatomy
of clause 3(q) dealing with grant of the second ACP Scale and the
eligibility criteria, placed reliance on the memorandum dated 27.3.1991
circulated to all the departments to the effect that the period of training
of all employees should be treated as duty for all intents and purposes,
referred to the memo dated 2.1.1992 which stated that the period of
training shall be treated as duty for all intents and purposes, i.e.,
seniority, leave, etc. and for experience in service for the purpose of
promotion and further relying on the memorandum dated 20.1.1992 which has
laid down that such period would be counted as experience in service for
the purposes of promotion, concurred with the opinion expressed by the
learned single Judge and declined to entertain the appeal. Hence, the
present appeal by the appellants.
6. We have heard Mr. Shivendra Dwivedi, learned counsel for the
appellants, and Mr. R.K. Kapoor, learned counsel appearing for the
respondents.
7. At the very outset, we may note that the respondents were granted the
first ACP Scale on 16.6.1997, 13.1.1999 and 30.6.1998 with effect from
1.5.1997 instead of 1.11.1998 as on that date, they completed ten years of
service. The same was withdrawn during the pendency of the writ petition
where the grievance pertained to non-grant of the second ACP Scale in terms
of the Scheme dated 27.2.1998 introduced by the Board. It is also apt to
note here that the respondents have already been granted second ACP Scale
with effect from 1.11.2008. Thus, the only grievance is that the period
shall differ in respect of each respondent if the training period is not
computed.
8. In the backdrop of the aforesaid narrow controversy, we think it
apposite to scrutinize the various documents brought on record and how they
are to be understood, appreciated and interpreted regard being had to the
contextual meaning of the term ‘training’.
9. The respondent No. 1 was appointed as Apprentice ITI Trainee vide
letter dated 28.3.1987 by the Board. It was stipulated in the said letter
that during the period of training, he would get a fixed pay of Rs.350/-
per month and on successful completion of the training, he may be appointed
as Plant Attendant Grade-II/Technician Grade-II in the scale of Rs.400-700
on temporary basis and he would be exclusively posted in the Thermal
Organisation. It was also stipulated therein that he would enter into an
agreement with the Board that he would serve the Board for at least five
years after successful completion of training and in case he would leave
the service of the Board, he would remit the entire cost incurred by the
Board in connection with the training during the period and thereafter
during the course of his appointment together with interest. Similar
letter was issued to the other respondents. Vide Office Order No.
303/EOM/G-263 dated 6.6.1989, number of persons including the respondents
were appointed as Officiating Technicians Grade-II in the pay-scale of 950-
20-1150-ED-25-1500 with effect from the dates mentioned against their
names. The respondents were appointed on regular basis with effect from
30.10.1988, 17.10.1988 and 25.10.1988 respectively with the stipulation
that they would remain on probation for a period of two years.
10. As the factual narration would exposit, the Board, in exercise of
power under Section 79 of the Electricity (Supply) Act, 1948, issued a
notification on 14.3.1990 by bringing certain amendments in the recruitment
and promotion for employees working in Thermal Power Projects. The
relevant part of the amendment reads as follows: -
“Para 3(i) of Part-A shall be substituted and read as follows:
50% posts shall be filled-up by direct recruitment from amongst
persons having passed 2 years ITI Course with Matric as minimum
qualification. Such directly recruited Plant attendant Gr-II
shall remain on training for a period of two years in regular
pay scale of Plant Attendant Gr-II to be allowed by the Board
from time to time. The Competent Authority may terminate the
services of a Plant Attendant Gr-II (Trainee) without notice and
without assigning any reason, if his work and conduct during the
period of training is not found satisfactory.”
“Para-3 (i) of Part-B shall be substituted and read as follows:
50% posts shall be filled-up by direct recruitment from amongst
persons having passed 2 years ITI Course with Middle examination
with 2 years experience or ITI one year course and Middle
Examination and with 3 years experience on similar works. Such
directly recruitment Technician Gr-II shall remain on training
for a period of two years in the regular pay scale to be allowed
by the Board from time to time. The Competent Authority may
terminate the services of a Technician Gr-II (Trainee) without
notice and without assigning any reason, if his work and conduct
during period of training, is not found satisfactory.
The trainees referred to above shall be entitled to the
increment only on successful completion of their training. In
case of Plant attendant Gr-II and Technician Gr-II, increment on
successful completion of training shall be granted, but without
arrears.”
[underlining is ours]
11. We have referred to the substituted clauses in extenso to appreciate
the use of the word ‘training’ therein after appointment to a post and the
stipulation relating to the grant of increment. In the context of this
notification, the policy relating to ACP Scale granted under the ACP Scheme
and the clarificatory communications are to be understood.
12. Coming back to the narration, recruitment and promotion policy as
amended, the F.A. & C.A.O., PTPS, HSE, Panipat, vide Memo dated 7.12.1990
sought certain clarification in relation to grant of increments. The
clarification sought was to the following effect: -
“In this connection it may please be clarified whether the
period of training in all the cases will count towards
increment, leave salary and pension. The above clarification
may please be issued at the earliest so that the cases are dealt
with accordingly on account of grant of increment and leave
salary etc.”
13. On 27.3.1991, the Secretary, HSEB, clarified the position by stating
as follows: -
“Board vide its notification No. 57, 58, 59, 60/Reg-137, dated
14.03.1990 and Notification No. 76/Reg-39/L, dated 13.09.90 have
granted regular pay scales to the trainee(s) of all categories
w.e.f. 29.1.1990. In this respect the Field Officers have
sought for a clarification whether the period spent by the
trainee on training is to be treated as duty for all intents and
purposes or not.
After considering the pros and cons of the case, it has
been decided that the period spent by the trainee(s) of all
categories on training shall be treated as duty for all intents
and purposes i.e. grant of increment in accordance with the
provisions as contained in the Policy, leave and seniority i.e.
from the date of joining in this cadre.”
[emphasis supplied]
14. In continuation of the aforesaid clarificatory memorandum dated
27.3.1991, the Board issued another memorandum on 22.11.1991. The said
clarification related to grant of regular pay scale to the trainees of all
categories and in that letter, it has been stated as follows: -
“In this connection, it is stated that some field offices have
sought for a clarification as to whether the benefit for the
grant of annual increment under the provisions as contained in
letter dated 27.3.91 is to be given to all trainee(s), who were
appointed during the year, 1987, 1988 & 1989 etc.”
15. After referring to the issue which required clarification, the Board
clarified that it has decided that monetary benefits of regular pay scale
had to be granted to the trainee(s) of all categories with effect from
29.1.1990 but the benefit of grant of annual increment under the provisions
as contained in letter dated 27.3.1991 has to be given to the trainee(s) of
all categories whose services have been regularized on 29.1.1991 or
thereafter. It had been further stated that the consequential benefits
would accrue only from the date on which the regular pay scale has been
granted to the trainees of all categories.
16. As the facts have been further uncurtained, on 27.1.1998, the Board
introduced the Assured Career Progression Scheme (for short “the ACP
Scheme”) with the objective to provide such Board employees who fall within
the scope of the Scheme at least two financial upgradations including the
financial upgradation, if any, availed by such Board employees as a
consequence of the functional promotion. Clause 2 excludes certain
categories of employees, namely, appointed on ad hoc basis, work charged
basis, part time paid out of contingencies and a daily wager from getting
the benefit of the Scheme. Clause 3 deals with the definitions. It
defines in Clause 3(b) “direct recruit fresh entrant”. The same, being
relevant, is reproduced below: -
“(b) “Direct Recruited Fresh Entrant” with reference to a post
or a Board Employee means the post on which such Board employee
was recruited as a regular and direct recruitee in the Board
service and is in continuous employment of Board since such
recruitment;”
17. Clause 5 deals with the eligibility for grant of ACP Scales. That
being the thrust of the controversy the relevant part of the said clause is
reproduced below: -
“5. Eligibility for Grant of ACP Scales:
(1) Every Board employee who, after a regular satisfactory
service for a minimum period of 10 years, has not got any
financial upgradation in terms of grant of a pay scale
higher than the functional pay scale prescribed for the
post as on 31.12.1995, on which he was recruited as direct
recruited fresh entrant: -
(a) either as a consequence of his functional promotion
in the hierarchy, or
(b) as a consequence of the revision of pay scale for the
same post, or
(c) as a consequence of any other event through which the
functional pay scale of the post has been upgraded,
with respect to the functional pay scale prescribed
for the post as on 31.12.1995, shall for the purposes
of drawal of pay; be eligible for placement into the
First ACP scale with reference to him.
(2) Every Board employee who, after a regular satisfactory
service for a minimum period of 20 years, has not got more
than one financial upgradation in terms of grant of pay
scale higher than the functional pay scale prescribed for
the post as on 31.12.1995 on which he was recruited as a
direct recruited fresh entrant: -
(a) either as a consequence of his functional promotion
in the hierarchy, or
(b) as a consequence of the revision of pay scale for the
same post, or
(c) as a consequences of any other event through which
the functional pay scale of the post has been
upgraded, with respect to the functional pay scale
prescribed for the post as on 31.12.1995, shall for
the purposes of drawal of pay; be eligible for
placement into the First ACP scale with reference to
him.
Provided that grant of ACP scale shall also be considered
financial upgradation for the purpose of this para.
NOTE : For the purposes of this scheme regular satisfactory
service would mean continuous service counting towards seniority
under H.S.E.B. including continuous service in P.S.E.B. before
reorganization, commencing from the date on which the board
employee joined his service after being recruited through the
prescribed procedure or rules regulations etc. for regular
recruitment, in the cadre in which he is working at the time of
being considered his eligibility for grant of ACP scales under
this scheme and further fulfilling all the recruitments
prescribed for determining the suitability of grant of ACP
scales. The period spent on ad hoc basis; work charged basis;
contingent basis and daily wages will not be counted for the
purpose of counting of prescribed length of “Regular
Satisfactory Service” for this scheme.”
[emphasis supplied]
18. In this backdrop, it is to be seen whether the period spent in
apprenticeship would be counted towards regular satisfactory service. The
learned single Judge as well as the Division Bench has returned a finding
in favour of the respondents solely on the basis of the clarificatory
letters and communications. Before we advert to the quintessential tenor
of the said communications, it is necessitous to understand the nature of
appointment, the concept of an apprentice, his rights under the law and the
basic ingredients of regular satisfactory service.
19. As has been stated earlier, the respondents were appointed as
apprentices ITI trainee for a period of two years. Each of them were paid
a fixed salary of Rs.350/-. After completion of the training, it was
mentioned in the letter of appointment that they may be appointed to the
post of Officiating Technical Grade-II in the pay scale of Rs.400/700 on
temporary basis.
20. Section 2(aa) of the Apprentices Act, 1961 (for short “the 1961 Act”)
defines “apprentice” which means a person who is undergoing apprenticeship
training in pursuance of a contract of apprenticeship.
21. Section 2(aaa) defines “apprenticeship training” which means a course
of training in any industry or establishment undergone in pursuance of a
contract of apprenticeship and under prescribed terms and conditions which
may be different for different categories of apprentices. Section 18
clearly states that apprentices are trainees and not workers.
22. In U.P. State Electricity Board v. Shiv Mohan Singh and Another[1],
A.K. Mathur, J., speaking for Hegde, J. and himself, while dealing with the
status of apprentice, has stated thus: -
“Therefore a combined reading of the sections as well as Rules
makes it clear that apprentices are only persons undergoing
training and during that training they are entitled to get a
particular stipend, they have to work for fixed hours and at the
end of period of training they have to appear in the test and a
certificate is issued to them. There is no obligation on the part
of the employer to give them any employment whatsoever. The
position of the apprentice remains as an apprentice trainee and
during the period of training they will not be treated as
workmen. Only obligation on the part of the employer is to impart
them training as per provisions of the Act and Rules and to pay
them stipend as required under Rule 11 and beyond that there is
no obligation on the part of the employer to accept them as his
employees and give them the status of workmen. There is no
relation of master and servant or employer and employee.”
23. Be it noted, in the said case, in paragraph 51, it has been laid down
that the 1961 Act is a complete code in itself and it lays down the
conditions of the apprentices, their tenure, their terms and conditions and
their obligations and what are the obligations of the employer. It also
lays down that the apprentices are trainees and not workmen and if any
dispute arises, then the settlement has to be made by the Apprenticeship
Advisor as per Section 20 of the Apprentices Act, 1961 and his decision
thereof is final. The nature and character of the apprentice is nothing but
that of a trainee and he is supposed to enter into a contract and by virtue
of that contract, he is to serve for a fixed period on a fixed stipend and
that does not change the character of the apprentice to that of a workman
under the employer where he is undergoing the apprenticeship training. Sub-
section (4) of Section 4 only lays down that such contract should be
registered with the Apprenticeship Adviser, but by non-registration of the
contract, the position of the apprentice is not changed to that of a
workman. From the scheme of the Act, the apprentice is recruited for the
purpose of training as defined in Section 2(aa) of the Apprentices Act,
1961 and from the language employed in Sections 6 and 7, it is more than
clear that the nature and character of the apprentice is that of a trainee
only and on the expiry of the training, there is no corresponding
obligation on the part of the employer to employ him.
24. Thereafter, the majority, referring to Section 22 of the Act, opined
as follows: -
“Section 22 makes it abundantly clear that at the end of the
apprenticeship training, it is not obligatory on the part of the
employer to offer an employment to an apprentice who has
completed the period of apprenticeship. It is only if the terms
of the contract of the apprenticeship lay down a condition that
on successful completion of an apprenticeship training, an
employer will offer him an employment then it is obligatory on
the part of the employer to do so. If there is no such condition
stipulated in the apprenticeship contract then the employer
cannot be compelled to offer employment to such apprentice. At
the same time, it is not obligatory on the part of the apprentice
to serve that employer if there is no such stipulation to this
effect. So it is a mutual thing and it depends on the terms of
contract. The survey of all these provisions of the Acts and the
Rules as mentioned above, makes it clear that the character and
status of apprentice remains the same and he does not become
workman and labour laws are not attracted.”
S.B. Sinha, J., in his concurring opinion, has stated thus: -
“Moreover in terms of Section 22 of the Act, the employer has no
statutory liability to give employment to an apprentice.”
25. In Narinder Kumar and Others v. The State of Punjab and Others[2], a
two-Judge Bench dwelt upon the letter of appointment of apprentices and
came to hold that the employer was bound to appoint the apprentices in the
available vacancies because of Section 22(2) of the 1961 Act and the
contractual obligations arising out of para 2 of the letter of appointment
which stated that the apprentices shall be absorbed in the department if
there are vacancies. Be it noted, emphasis was laid on the nature of the
contract.
26. In Dhampur Sugar Mills Ltd. v. Bhola Singh[3], while dealing with an
award passed by the Labour Court under the U.P. Industrial Disputes Act
relating to apprentices, a two-Judge Bench opined thus: -
“14. If the respondent was appointed in terms of the Apprentices
Act, 1961, he will not be a workman, as has been held by this
Court in Mukesh K. Tripathi v. Senior Divisional Manager, LIC[4]
and U.P. SEB v. Shiv Mohan Singh (supra).
15. In terms of the provisions of the Apprentices Act, 1961, a
trainee or an apprentice has no right to be absorbed in
services.”
27. We have referred to the aforesaid pronouncements solely for the purpose
that an apprentice does not have a statutory right to claim an
appointment and the employer is not under any statutory obligation to
give him employment. However, if the terms of the contract of
apprenticeship lay down a condition that on successful completion of
apprenticeship an employer would offer him an employment, then it is
obligatory on his part to do so. In the absence of such a condition,
there is no obligation. It depends on the terms of the contract. In
the case at hand, as the letter of appointment would show, the employer
had only stated that on successful completion of the training, the
apprentice may be appointed as Plant Attendant/Technician Grade-II.
Thus, it was not a mandatory term incorporated in the agreement casting
an obligation on the employer to appoint him.
28. Having dealt with the rights of an apprentice, we may presently proceed
to dwell upon the issue
whether any of the clarificatory
letters/circulars conferred any benefit on these employees so that they
could be treated to be in regular service.
On a perusal of the
notification issued by the Board, it is clear as crystal that it relates
to two categories of direct recruits who shall undergo training for a
period of two years in the regular pay scale.
Thus, the said
notification has no application to apprentices who avail the training.
In the clarification issued on 27.3.1991, there is a mention with regard
to the regular pay scale in the notification dated 13.9.1990.
The query
was limited to the issue whether the training period of such a trainee
would be counted for all intents and purposes or not.
In that context,
it was clarified that the period spent by the apprentice of all
categories shall be treated as duty for all intents and purposes, i.e.,
for grant of increment in accordance with the provisions as contained in
the policy, leave and seniority, i.e., from the date of joining in this
cadre.
It is worth noting that the Board had issued further
clarification that the benefit of grant of annual increment under the
provisions as contained in the letter dated 27.3.1991 was to be given to
the trainees of all categories whose services had been regularized on
29.1.1991 or thereafter, and the consequential benefit should accrue
only from the date on which the regular pay scale has been granted to
the trainees of all categories.
Clause 5 of the ACP Scheme which
provides for eligibility criteria, in its note stipulates that for the
purpose of the scheme, regular satisfactory service would mean continuous service counting towards seniority under the Board including the continuous service in PSEB before reorganization.
It has been
clearly stated that period spent on ad hoc basis, work charged basis, contingent basis and daily wages would not be counted for the purpose of counting the prescribed length of regular satisfactory service for the scheme.
The respondents, as is evident, were appointed on different
dates, i.e., 30.10.1988, 17.10.1988 and 25.10.1988 respectively as
Technicians Grade-II in the pay scale on regular basis.
Their period of probation was for two years.
The letter/circular dated 27.3.1991
emphasizes the terms from the date of joining in the cadre. As is
perceptible from the clarificatory letter dated 27.3.1991, the trainees
of all categories have been granted regular pay scale from 21.1.1990 and
decision had been taken that the training period or period spent as
trainees of all categories shall be treated as duty for all intents and
purposes.
On 20th of January, 1992, it was further clarified that the
period spent by the trainees of all categories on training would be
counted as experience in service for the purposes of promotion.
On a
scrutiny of the promotion policy, the ACP Scheme and the communications,
we find that the High Court has erred in its appreciation of the
contents of the promotion policy and the conditions incorporated in the
scheme and the clarificatory letters issued from time to time and their
essential purport.
The Board, on 14.3.1990, substituted and added
certain clauses to the recruitment and promotion policy.
We have
reproduced the same earlier and on a proper scrutiny, it is perceivable
that 50% posts are to be filled by direct recruitment from amongst
persons who have passed 2 years ITI course with Matric as minimum
qualification and such directly recruited Plant Attendants Grade-II
would remain on training for a period of two years on the regular pay
scale of Plant Attendant Grade-II to be allowed by the Board from time
to time, and the other 50% is be filled up by direct recruitment from
amongst persons who have passed two years ITI course with middle
examination with two years experience or ITI one year course with middle
examination and with three years experience of similar works.
Such
directly recruited Technician Grade-II shall remain on training for a
period of two years in the regular pay scale. The clarificatory letter
has to be read in the said context and we are disposed to think so as
the persons appointed under the policy in the regular pay scale are
required to go on training. The clarification sought related to grant
of increment and computation of period that is spent as trainee in the
capacity of Plant Attendant Grade-II and in that context, the
clarification issued was that the training of all categories on training
would be counted. It is worthy to note that the respondents were not
recruited under the said policy. They were appointed as apprentices ITI
trainee on 28.3.1987 and they were not given any kind of post. It is
only mentioned that they may be appointed as Plant Attendant Grade-
II/Technician Grade-II. Thereafter, they were appointed on different
dates as Officiating Technician Grade-II. The regular pay scale was
given from the date of appointment. Prior to that, it was a fixed pay.
They were not working on a post. They did not belong to any cadre. In
fact, they were not recruited and, hence, the term trainee which has
been referred to in various clarificatory letters has been misconstrued
by the High Court.
29. In view of the aforesaid analysis, we conclude and hold that the
judgments rendered by the learned single Judge as well as by the
Division Bench are unsustainable and are, accordingly, set aside.
However, we clarify that if any financial benefit had been availed by
the respondents, the same shall not be recovered, but their dates for
grant of ACP Scale shall remain as determined by the appellants.
Accordingly, the appeal is disposed of. The parties shall bear their
respective costs.
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
January 07, 2013
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[1] (2004) 8 SCC 402
[2] AIR 1985 SC 275
[3] (2005) 2 SCC 470
[4] (2004) 8 SCC 387
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