ARUNACHALAM S Vs. MANAGING DIRECTOR SOUTHERN STRUCTURALS

JUDGEMENT

(1.) The petitioner was employed as Assistant (Trainee) in the 1st respondent company on June 2, 1984 for a period of two years. Since he was a Post Graduate Degree holder at the time of joining, he was posted as Assistant in the personnel department against the permanent vacancy. During the period of two years, the petitioner was treated as a full member of the department and was allotted duties equivalent to other staff of personnel department. He was paid a consolidated stipend of Rs. 6507- till his probation was declared on June 8, 1986. The petitioner resigned his services with effect from the closing of August 12, 1991. On his resignation, the petitioner was paid all statutory dues to which the petitioner was entitled to, except the gratuity for the period from June 2, 1984 to June 7, 1986. The total amount of gratuity due for the period from June 2, 1984 to June 7, 1986 works out to Rs. 1,889.80.

(2.) The petitioner made a claim before the Assistant Commissioner of Labour, the Controlling Authority under the Payment of Gratuity Act, 1972, the 2nd respondent. The 2nd respondent however, dismissed the application on November 30, 1992 on the ground that the petitioner being a trainee is not entitled to the gratuity for the period between June 2, 1984 and June 7, 1986 as per Section 2(3) of the Payment of Gratuity Act, 1972 (hereinafter referred to as "the Act"). Aggrieved by the said order, the petitioner preferred an appeal before the Deputy Commissioner of Labour (Appeal), the Appellate Authority under "the Act", the 3rd respondent. The appeal was also dismissed on June 30, 1993. Aggrieved by the above orders, the present writ petition, has been filed.

(3.) Learned counsel for the petitioner submitted that the definition of Section 2(e) of "the Act" only excludes an apprentice from the application of the payment of gratuity. The petitioner being a trainee is not excluded under the said definition from the application of the provisions of "the Act". The learned counsel submitted that to determine the question as to whether a person is an employee, mere nomenclature of the post is not of much consequence but the nature of duties performed by person concerned will alone be decisive. According to the petitioner, when he was appointed as an apprentice on June 2, 1984, he was treated as a full member of the department and was allotted duties equivalent to other staff of personnel department. The duties of the petitioner would go to show that he is not an apprentice. The learned counsel submitted that the word "apprentice" in respect of a person means, "a person learning a trade from a skilled employer". The petitioner was not posted to learn as a skilled employee but he was assigned specific duties and therefore, he cannot be considered as an apprentice. The learned counsel submitted that both the Controlling Authority and the Appellate Authority have not properly appreciated the nature of work that was performed by the petitioner for arriving at the conclusion as to whether the petitioner would be considered as an employee within the definition of Section 2(e) of "the Act". The learned counsel would also submit that the 1st respondent in its office order in reference No.L-3/610/A3/530/87 dated October 14, 1987 while in fact extending the benefit of bonus and ex-gratia to the Trainee Officers has distinctly allowed the company apprentices to be eligible only for payment of a fixed sum as Deepavali Gift. Therefore, the learned counsel submitted that since the 1st respondent itself has treated the Trainee Officers and the Apprentices differently, it cannot now contend that the trainees are also apprentices. Hence, the learned counsel seeks to assail both the impugned orders.