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TMI Blog2004 (10) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act, 1947, is a general law. The Parliament enacted Apprentices Act, 1961 (for short 'the said Act') which is a special law. It deals with the regulation and control of training of apprentices and for matters connected therewith. The special statute, therefore, shall prevail over the general statute having regard to the maxim "generalia specialibus non derogant [See Talcher Municipality Vs. Talcher Regulated Mkt. Committee & Anr., [(2004) 6 SCC 178]. The said Act is a complete code in itself. An apprentice, as defined in Section 2(aa) of the said Act, is a person who enters into a contract of apprenticeship for the purpose of undergoing apprenticeship training in a designated trade. Entering into a contract of apprenticeship, therefore, is the basis for attracting the provisions of the said Act. The primal question which arises for consideration is as to whether a person who is an apprentice within the meaning of Section 2(aa) of the said Act would become a workman and, consequently, would be entitled to the benefits of various labour laws in the event of breaches of the terms of the said contract as also non-registration thereof. It is neither in doubt nor in disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where a statute is clearly mandatory or prohibitory, yet, in many instances, the courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their jurisdiction in considerations of justice. It is a well known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient caliber to excuse or justify a technical violation of the law." It is no doubt true that the Apprenticeship Advisor has certain statutory duties and functions as contained in Sections 4(5), 5, 7, 8, 9, 10, 15 and 29. It is furthermore true that Sections 19 and 20 provide for certain obligations upon the employer to obtain approval of the Apprenticeship Advisor and forward the records to the concerned authorities. Similarly, the rules framed under Section 37 of the Act confer certain benefits upon the apprentices. If an employer fails to perform his statutory duties or deprives an apprentice from the benefits to which he is entitled to, the Apprenticeship Advisor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the expression "shall" has been employed in sub- section (4) of Section 4, the same may not be held to be imperative in character having regard to the fact that not only, as noticed hereinbefore, a contract of apprenticeship commences but also in view of the fact that an application for registration of apprenticeship contract is required to be made within a period of three months in terms of Rule 4B of the Apprenticeship Rules, 1962. The Act nowhere provides for the consequences of non-registration. It is not in dispute that the list of apprentices used to be sent by the Apprenticeship Adviser himself and, thus, presumably the preliminary scrutiny in that regard had been made by the said authority. If in a given case, as noticed hereinbefore, the employer fails to get the contract of apprenticeship registered and/or fails to carry on his obligations in terms of Section 11 of the Act, he faces penal consequences in terms of Section 31 of the Act. The employer, furthermore, is liable to pay compensation for termination of apprenticeship as would appear from Rule 6 of the Apprenticeship Rules, 1962, which reads thus : "Compensation for termination of apprenticeship.- Whereas the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following four factors for construing an Act: (i) What was the law before the making of the Act, (ii) What was the mischief or defect for which the law did not provide, (iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which "shall suppress the mischief and advance the remedy". Prior to 1973, the provision for registration was mandatory in character. Only having regard to the delay which has occasioned for registration of contract of apprenticeship, the said amendment had been brought about; pursuant whereto or in furtherance whereof the contract of apprenticeship commences. If the purpose of amendment was to make the contract workable even without registration, we fail to see any reason as to why the provision should be construed as imperative in character so as to render a contract of apprenticeship a nullity which is possible to be avoided and the object thereof can be achieved by taking recourse to the penal provisions. It may be true that rules framed under Section 37 of the Act are required to be laid before both Houses of Parliament after formulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties thereto. In absence of any specific provision in the statute, we are unable to accede to the submissions of the learned counsel to the effect that in the event of commission of a breach by the employer the contract of apprenticeship shall become a contract of employment. Such a novation of contract is not contemplated in law. With a view to become a workman, not only the apprentice has to show that he comes within the purview of the definition of the term 'workman' as contained in Section 2(z) of the U.P. Industrial Disputes Act, 1947 but he must further plead and establish that his job is such which fulfills the requirements of the said term. [See Mukesh K. Tripathi Vs. Sr. Divn. Manager, LIC & Ors. JT 2004 (7) SC 232 = 2004 (7) SCALE 442]. In Bruton Vs. London and Quadrant Housing Trust, [1999] 3 All ER 481, a contract of tenancy was held to be binding upon the parties even though the grantor lacked the necessary power. A housing association which itself was a licensee granted a licence which in view of the decision in Street Vs. Mountford, [1985] AC 809 was treated to be a tenancy even though the housing association, being themselves mere license ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e protection of labour laws. The learned single Judge may be right in his reasoning that even after non-registration of the contract of apprenticeship, the appellant would only be a 'trainee', or an 'apprentice', as intended by the parties and he would not be an 'employee' or a 'workman', within the meaning of the Apprentices Act. Even if, as stated by the learned single Judge, the appellant, as a result of non- registration of contract of apprenticeship, is deemed to be a trainee or an 'apprentice', he would, nonetheless, be covered within the definition of 'workman' under Section 2(s) of the I.D. Act." The ratio enunciated in the said decision appears to be self- contradictory. An apprentice cannot both be an apprentice and a workman under the 1947 Act. Similarly, the observations made by the Patna High Court in Ram Dular Paswan and Others vs. P.O. Labour Court, Bokaro Steel City and Others [1998 (80) FLR 399] to the effect that "The Apprentices Act does not deal with the investigation and settlement of industrial disputes between the employer and the workmen. Therefore, so far as the settlement of the industrial disputes is conce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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