The trend recently observed by our industry experts, indicated that employers employ workers on a large scale under the guise of ‘trainees’. The deployment, of such employees is through various agencies including Schools, ITIs and private entities promoted by contractors or by private parties. There is a general perception that deployment of such ‘trainees’ will benefit the employer in the long run as trainees cannot claim permanency or status of workmen. The position of labour law in India is that the criteria to decide whether a person is a workman or not is not his designation. Thus in the situation a workman has been employed as trainee, in case of a dispute, the Courts in several cases have held that such a trainee will be considered as a workman.
There have been varying positions on this situation as illustrated below.
- The Delhi High Court in the matter of Kartik Ramchandran R. vs. P.O. Labour Court & Anr. [(2006) II LLJ 160 Del] has held that trainees, even though they are paid provident fund, are not workmen under the Industrial Disputes Act, 1947.
- However, in the matter of MRF Ltd. vs. P. O. EPF [2012 Volume III LLJ 745], where a writ petition was filed by the petitioner company challenging the Assistant Provident Fund Commissioner’s finding that the apprentices engaged by the Company were to be covered under the provisions of the EPF Act, except those apprentices who are employed under the provisions of the Apprentices Act, 1961, the Hon’ble Madras High Court, after examining the kind of work performed and terms of engagement of the apprentices, held as under:
“It is a misnomer to call those persons as trainees or apprentices who were paid overtime wages as a monthly salary and no stipend.”
- Some employers as well as Labour Law Consultants rely upon the judgment of the Hon’ble Supreme Court in the matter of Haryana Power Generation Company Ltd. vs. Harkesh Chand [2013 2nd LLM 43 SC], wherein the Hon’ble Supreme Court has held that Apprentices have no statutory right to claim appointment on completion of their services.
- The Hon’ble Madras High Court in the matter of Workmen of PMP Textiles, Coimbatore vs. Management of PMP Textiles [2011 LLR 731] has held that one should not go by the nomenclature attached to a post to determine whether an individual was an Apprentice or a regular workman, it is the nature of the job which is material. Further, the Court opined that though the workmen in this case were called Apprentices, since they were all involved in the production activities, they are to be treated only as regular workman as defined in the Industrial Disputes Act and they cannot be termed as Trainees/Apprentices.
The issue whether a trainee is a workman or not is be a matter of evidence. Factors such as the ratio of deployment of persons in the guise of trainees to permanent employment, the kind of work extracted from such persons, record of training maintained by the employer, factor of training, payment of overtime, etc. is to be considered by the Court.
The credibility of the training institute also will come under the scanner. There are large scale institutes shown on paper as Trainee Institutes and trainees are deployed through such institutes. The paperwork, credibility of the promoters of such institutes may affect the chances of the employer opposing the claim of such trainees.
The Hon’ble Supreme Court’s decision in the matter of Trayambak Rubber Industries Ltd. vs. Nashik Workers Union & Ors. Reported in [2003 III LLJ 226] is important in this regard. In the said matter the Supreme Court observed that the concerned Company did not have any permanent workmen. All the persons deployed were trainees. The Court also further observed that it would be impossible to believe that the entire production activity was being carried on with none other than the so called trainees. The Court also observed that if they were trainees, there should have been trainers too. Therefore, on facts and evidence brought on record, the Hon’ble Supreme Court concluded that the employer resorted to unfair labour practice. In the said judgment, initially the Industrial Court held that the employees were trainees and not workmen. The said finding of the Industrial Court was set aside by the High Court and the Order of the High Court was upheld by the Supreme Court.