An apprentice may be a workman provided he is not a trade apprentice within the meaning of the provision of 1961 Act.

( 1 ) THIS appeal is directed against an order, dated September 1, 1994, passed by a learned Single Judge of this Court whereby and whereunder the writ application filed by the writ petitioner appellant was summarily dismissed.

( 2 ) THE facts of the matter lies in a very narrow compass.

( 3 ) ACCORDING to the petitioner, his date of birth is September 10, 1959 which was also recorded in the register maintained by Durgapur T. N. Singh School, wherein the petitioner allegedly read from Class V

( 4 ) THE petitioner contended that he appeared in the year 1975 in the Higher Secondary Examination in the science stream from the said school but failed therein. His date of birth as aforementioned was stated by the headmaster of the said school in the certificates, dated December 22, 1978 and September 20, 1991.

( 5 ) THE petitioner thereafter joined training in the Trade Course of Fitter in the Industrial Training Institute, Durgapur. Upon completion of his training, he was appointed as an apprentice in terms of the provisions of the Apprentice Act, 1961, by respondent 1 in terms of an office order, dated April 28, 1986, and he continued to work as such till 1988.

( 6 ) THE petitioner contended that his date of birth was recorded by the respondent-company at the time of his appointment as an apprentice. The petitioner got a regular employment from the respondent-company on July 19, 1994. He intended to join the post of Shramik, but his joining report was not accepted in absence of proof of his date of birth.

( 7 ) THE contention of the petitioner in short is that in terms of the Standing Order framed by the respondent under Section 7 of the Industrial Employment (Standing Orders) Act, 1946, his date of birth having been recorded as September 10, 1959, and the same having been accepted by the respondent in terms of Clause 4 of the Standing Order, the respondent cannot insist upon filing of the original certificate to be granted by the West Bengal Higher Secondary Board.

( 8 ) THE contention of the respondent, on the other hand, appears to be that the appellant is not a workman within the meaning of the said provision and thus he was bound to satisfy the management with regard to the proof of his age before he could be allowed to join the post. It has been submitted that the age of the petitioner was not recorded in its registers nor any identity card was issued to him.

( 9 ) SHRI Pratap Roy appearing oh behalf of the appellant contended that in terms of the Standing Orders, an apprentice is also a workman and thus the age of the petitioner recorded in the service report in terms of Clause 4 thereof must be held to be good for proper recording of his age as a workman in terms of the aforementioned offer of appointment.

( 10 ) IT was submitted that in terms of the said rule, the other particulars of an apprentice are also required to be recorded which being an act performed by a Public Officer in exercise of his statutory duty, is admissible in evidence under Section 35 of the Evidence Act. He further submitted that even if any discrepancy exists between the age recorded in School Register vis-a-vis the certificate granted by the School Examination Board, the former shall prevail. Sri Roy urged that the date of birth recorded by the respondent company and sent to the concerned authorities under the provisions of the Industrial Employment (Standing Orders) Act, 1946, the same must be held to have a sanctity and they would be presumed to be correct.

( 11 ) THE learned counsel submitted that the impugned action, thus must be held to be violative of principles of natural justice as his date of birth could not have been altered to his disadvantage.

( 12 ) IN support of his aforementioned contention the learned counsel relied upon State of Orissa v. Binapani Devi (1967-II-LLJ-226) (SC ).

( 13 ) IT was further submitted that a presumption of correctness of the official Act should be drawn in terms of Section 114