IMPORTANT POINT
Presumption as to employment under Section 103 of the Factories Act is not applicable to adjudication of dispute referred to under Section 10 of the Industrial Disputes Act.

Headnote:(i) Industrial Disputes Act, 1947 -Factories Act, 1948-Section 103 -Workman-Appointment as an apprentice-Stipend paid-After completion of apprenticeship continued working in anticipation of being provided employment-No appointment letter-No payment of salary apart from stipend-No evidence to indicate deduction of GPF or ESI-Respondent s claim he was workman since he continued working after apprenticeship and termination of service by oral instruction not valid-Not tenable on facts available on record-Even otherwise working in anticipation of securing employment did not make respondent workman or regular employee-Presumption under Section 103, Factories Act not applicable to adjudication under Industrial Disputes Act. (Paras 7 to 14)
(ii) Factories Act, 1948-Section 103-Presumption as to employment-Is rebuttable presumption-Presumption is to be raised for purpose of Factories Act-Presumption not applicable to adjudication of dispute referred to under Section 10 of Industrial Disputes Act. (Para 13)

JUDGMENT

Shivaraj V. Patil, J.-Civil Appeal No. 4501 of 1998 is directed against the order dated 3-12-1997 made by the High Court of Rajasthan in D.B. Civil Appeal No. 523/97. Briefly stated, the facts, which are necessary and relevant for the disposal of this appeal, are the following.

2. At the instance of the respondent, the State Government referred the dispute under Section 10(1) of the Industrial Disputes Act, 1947 vide Notification No. S. P. I. (i) (884) L.C./83 dated 1.2.84 to decide-

"whether the termination of service of labourer Shri Virendra Kumar by the Manager, CIMCO Limited, Bharatpur, was proper and legal? If not, what relief the labourer was entitled?"

3. The contesting respondent claimed that he was appointed as an apprentice by the appellant from 10.9.79 to 21.9.80. After the expiry of the said period, he was on regular service between 22.9.80 to 21.12.80. As there was lock-out in the factory from 7.10.80 to 8.2.81, he was asked by the appellant not to come for work. After the lock-out was over, the respondent worked as General Clerk in the assembly shop of the appellant from 9.2.81 to 30.6.82. Thereafter he worked in the vacancy of Shri K.G. Venkatesan till April, 1983. He was given Rs. 250/- per month from 22.9.80 to 30.6.82 and when he demanded salary for the period between 1.7.82 to April, 1983 he was told that his case had been recommended for approval of the higher officers. He was told by the appellant orally not to come for work from 16.6.1983 on the ground that his services were already terminated. It was his further case that he had continuously worked from 9.2.81 to 15.4.83. Hence he was entitled to become permanent worker.

4. The appellant resisted the claim of the respondent by filing written statement. It was admitted that the respondent had been appointed as an apprentice between 10.9.79 and 22.9.80 at the request of his father who was already serving in the appellant factory. It was pointed out that between the periods 11.8.81 to 10.12.81 and 11.12.81 to 30.6.82 the respondent had been an apprentice as per Exbts. M2 and M1 respectively. It was stated that neither the respondent was employed by any competent authority in the establishment of the appellant nor he had been paid salary. It is clear from condition No. 5 in Exbts. M1 and M2 that the appellant was not obliged to give job to the respondent after the completion of apprenticeship. The Labour Court after considering the rival contentions, in the light of the evidence brought on record, held that the respondent was not a workman. It also held that presumption that could be raised under Section 103 of the Factories Act, 1948 (for short the Act ) stood rebutted as no appointment letter was given to the respondent; he was neither paid any salary or wages and that the relationship of master and servant did not exist between the appellant and the respondent. In view of the conclusions arrived at, the Labour Court passed the award holding that the respondent was not entitled to any relief from the appellant.

5. The respondent challenged the validity and correctness of the said award in the High Court of Rajasthan in S.B. Civil Writ Petition No. 1384/87. The learned Single Judge did not find any good ground to disturb the award passed by the Labour Court, exercising jurisdiction under Article 226 of the Constitution of India. Consequently, the writ petition was dismissed on 6.3.97. The respondent took up the matter in appeal in D.B. Civil Appeal No. 523/97. The Division Bench of the High Court by the impugned order dated 3.12.97 allowed the appeal, set aside the order of the learned Single Judge and allowed the writ petition quashing the award of the Labour Court. Hence this appeal is brought before us by the appellant.

6. The learned counsel for the appellant urged that the Division Bench of the High Court failed to see that the respondent was only an apprentice for short period in two spells; that too with a clear understanding that the a

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2000 Supreme(SC) 1169

IMPORTANT POINTPresumption as to employment under Section 103 of the Factories Act is not applicable to adjudication of dispute referred to under Section 10 of the Industrial Disputes Act.

IMPORTANT POINT
Presumption as to employment under Section 103 of the Factories Act is not applicable to adjudication of dispute referred to under Section 10 of the Industrial Disputes Act.