HMT WATCHES LIMITED Vs. REGIONAL LABOUR COMMISSIONER

JUDGEMENT

(1.) There is no more dispute that the term 'workman' as defined in Clause 2.6 of the Standing Orders of the petitioner-factory includes a 'Trainee', The question as to whether a Trainee' would fall within the definition of the term 'employee' under Section 2(e) of the Payment of Gratuity Act, 1972 (for short, 'Act') was required to be answered by the authorities before reckoning the period of training for the purpose of continuous service under Section 2-A of the Act. Apparently, there is no dispute that for certain period of time, the claimants "were engaged as 'Trainees' under a contract and thereafter absorbed into the establishment as regular workmen against regular vacancies. In order to establish that during the course of training, 'Trainees' were, in fact, discharging duties of workman required evidence both oral and documentary by either of the parties, which apparently is not forthcoming from the records.

(2.) Sri Joshua H. Samuel, learned Counsel for the petitioner submits that being under the genuine belief that there was no dispute that training was imparted to the trained during the subsistence of the contract hence no question arose whether it was only training or they had performed duties of regular workman. According to the learned Counsel, the authorities under the Act did not take into consideration this aspect of the matter, but on the perverse misconception-that the definition of the term 'workman' under Clause 2.6 of the Standing Orders, included a 'Trainee', opined that Trainees performed duties as 'regular workmen', entitled to reckon that period of training as service for the purpose of gratuity, calling for interference.

(3.) Contesting respondent though represented by Counsel is absent, conspicuously. Suffice it to notice that the order of the Appellate Authority suffers from an error apparent on the face of the record. This is so because the employees having advanced a contention that their status from 'Apprentice Trainee' was changed to that of 'workman' during the period of training must therefore necessarily plead and prove the requisite facts. In the absence of pleadings or proof, either, of novation of contract or by reason of conduct of parties; such change had been brought about, it is not proper to hold that the 'Trainees' were in fact 'workmen'. Without expressing any opinion, over the aforesaid dispute, in the facts of this case, with an intention to extend an opportunity to place material in that regard, if any, before the Appellate Authority by either of the parties, ends of justice would be met by remitting the proceeding for consideration afresh.