TABLE OF CONTENTS

________________________________________________________________

1. LIST OF ABBREVIATIONS....2

2. INDEX OF AUTHORITIES..3

3. LIST OF CASES....4

4. STATEMENT OF JURISDICTION..5

5. STATEMENT OF FACTS.6

6. SUMMARY OF ARGUMENTS...7

7. ARGUMENTS ADVANCED..8-13

8. PRAYER..14

|MEMORIAL ON BEHALF OF PETITIONER.

 LIST OF ABBREVIATIONS
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1. Honble - Honourable

2. SC - Supreme Court

3. SCC - Supreme Court Cases

4. A.I.R - All India Reporter

5. v. - Versus

6. & - And

7. Co. - Company

8. Art. - Article

9. etc. - et cetera

10. anr - Another

11. sec. - Section

12. Corpn. - Corporation

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 INDEX OF AUTHORITIES
___________________________________________________________________________

I. STATUTES

1. The Constitution of India 1950

2. The Apprentices Act, 1961

3. The Industrial Disputes Act, 1947

II. BOOKS

1. S.N.MISHRA, LABOUR AND INDUTRIAL LAWS, 27TH EDITION.

2. M.P.JAIN, INDAIN CONSTITUTIONAL LAW, SIXTH EDITION

III. WEBSITES

1. www.manupatra.com
2. indiankanoon.com

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 LIST OF CASES
________________________________________________________________________

1. Balkrishna Iyer v. Ramaswami Iyer .... AIR 1965 SC 195

2. C.C.E. v. Standard Motor Products.AIR 1989 SC 1298

3. Dhakeswari Cotton Mills Ltd. CIT....... AIR 1955 SC 65

4. Narpat Singh v. Jaipur Development Authority . AIR 2002 SC 2036

5. E.S.I. Corpn. V. Tata Engg. & Co .... AIR 1976 SC 66

6. Regional Director E.S.I. Corporation v. M/s. Arudyog & others... (1987) I L.L.J. 292
(Bom)

7. U.P. State Electricity Board v. Ashok Kumar Shukla and anr ... (2003) II L.L.J
1013 (All.)

8. U.P.S.E.B. v. Shiv Mohan Singh .. (2005) I L.L.J. 117 (S.C.).

9. Raj Kumar Srivastava v. State of U.P....... (1996) I L.L.J. 1054 (All)

10. M/s Tannery & Footwear Corporation of India Ltd. Labour Court, Kanpur II &
others... ...(1994) II L.L.J. 1186 (All)

11. Patel Pravin Kumar Somnath & others v. Gujarat State Land Development Corpn. Ltd.
& others ..... (1993) I L.L.J. 916 (Guj)

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 STATEMENT OF JURISDICTION
___________________________________________________________________________

The Petitioner has approached this Honble court under Article 1361 of the

Constitution of India, 1950.

Article 136 in The Constitution Of India 1950

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces

|MEMORIAL ON BEHALF OF PETITIONER.

 STATEMENT OF FACTS
___________________________________________________________________________

1. Tikaram was engaged as an apprentice in the Jharkhand State Sugar Corporation Ltd.
on a monthly stipend for getting training of general clerk .

2. A contract for this purpose was made between them. As Mr. Tikaram could not get full
knowledge during his training he requested for one more year of training in the said
corporation.

3. When that period came to an end he raised a dispute which was referred for adjudication
to Labour Court. The management contended that he was not an employee.

4. But Labour Court rejected the contention and said that initially he was engaged as an
apprentice but later on he was engaged as employee so the termination of his service
amounted to retrenchment.

5. The Corporation files an appeal to the Supreme Court.

|MEMORIAL ON BEHALF OF PETITIONER.

 ISSUES RAISED
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I. WHETHER THE PRESENT APPEAL FILED BY THE PETITIONER IS

MAINTAINABLE OR NOT IN THE COURT OF LAW?

II. WHETHER THE TERMINATION OF THE RESPONDENT SERVICE

AMOUNTED TO RETRENCHMENT?

|MEMORIAL ON BEHALF OF PETITIONER.

 SUMMARY OF ARGUMENTS
___________________________________________________________________________

III. WHETHER THE PRESENT APPEAL FILED BY THE PETITIONER IS

MAINTAINABLE OR NOT IN THE COURT OF LAW?

It is most humbly submitted before this Honble court that the present appeal filed by the
petitioner is maintainable in the court of law.

Art. 136(1) empowers the Supreme Court to grant, in its discretion, special leave to appeal
from any judgment, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India.

IV. WHETHER THE TERMINATION OF THE RESPONDENT SERVICE

AMOUNTED TO RETRENCHMENT?

It is most humbly submitted before this Honble Court that the termination of the respondent
service does not amount to retrenchment.

It is clear from the section that retrenchment comes when we talk about the workman and not
the apprentice. In the present case the respondent is an apprentice and not a workman.
Therefore, the termination of his services does not amount to retrenchment.

|MEMORIAL ON BEHALF OF PETITIONER.

 ARGUMENTS ADVANCED
___________________________________________________________________________

I. WHETHER THE PRESENT APPEAL FILED BY THE PETITIONER IS

MAINTAINABLE OR NOT IN THE COURT OF LAW?

It is most humbly submitted before this Honble court that the present appeal filed by the
petitioner is maintainable in the court of law.

Art. 136(1) empowers the Supreme Court to grant, in its discretion, special leave to appeal
from any judgment, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India.

Art. 136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

The matter lies within the complete discretion of the SC and the only limit upon it is the
wisdom and good sense of the Judges of the Court.2

Article 136(1) does not define the nature of proceedings from which the SC may hear appeals,
and, therefore, it could hear appeals in any kind of proceedings whether civil, criminal, or
relating to income- tax, revenue or labour disputes, etc.

Under Art. 136(1), the Supreme Court may hear appeal even though the ordinary law pertaining
to the dispute makes no provision for such an appeal.

In Dhakeswari3, the Court has stated: It is not possible to define the limitations on the
exercise of the discretionary jurisdiction vested in the Court by Article 136. The limitations
whatever that may be, are implicit in the nature and character of the power itself. It being an

2
Balkrishna Iyer v. Ramaswami Iyer, AIR 1965 SC 195
3
AIR 1955 SC 65

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exceptional and overriding power, naturally it has to be exercised sparingly and with caution
and only in special and extraordinary situations.

In the present case, the extraordinary question arises as substantial question of law here is
whether the termination of the respondent service leads to retrenchment or not.

Article 136 is the residuary power of the Supreme Court to do justice where the Court is
satisfied that there is injustice.4

In the case of Narpat Singh v. Jaipur Development Authority5, The SC has described the
nature of its power under Art. 136 as follows:

The exercise of jurisdiction conferred by Art. 136 of the Constitution on this Court is
discretionary. It confers a discretionary power of widest amplitude on this Court to be
exercised for satisfying the demands of justice. On the one hand, it is an exceptional power to
be exercised to be exercised sparingly, with caution and care and to remedy extraordinary
situations or situations occasioning gross failure of justice; on the other hand, it is an
overriding power where under the court may generously step in to impact justice and remedy
injustice.

In the present case, the respondent was an apprentice and on the termination of his
apprenticeship, he could not be considered as a workman. The apex court gave the decision
that the respondent is a workman. And therefore, an appeal is filed in the SC to look upon the
matter and to remedy injustice. The substantial question here involved is that the respondent
cannot be considered as a workman as according to section 18 of the Apprentices Act, 1961,
apprentices are trainee and not workers.

Hence, the present appeal is maintainable in the present Court.

4
C.C.E. v. Standard Motor Products, AIR 1989 SC 1298
5
AIR 2002 SC 2036

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 II. WHETHER THE TERMINATION OF THE RESPONDENT SERVICE
AMOUNTED TO RETRENCHMENT?

It is most humbly submitted before this Honble Court that the termination of the
respondent service does not amount to retrenchment.

According to the Section 2 (oo) of Industrial Disputes Act, 1947

" retrenchment means the termination by the employer of the service of a workman for
any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary
action, but does not include--

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of
employment between the employer and the workman concerned contains a stipulation in
that behalf; or

(bb) termination of the service of the workman as a result of the non- renewal of the
contract of employment between the employer and the workman concerned on its expiry or
of such contract being terminated under a stipulation in that behalf contained therein; or]

(c) termination of the service of a workman on the ground of continued ill- health;]

It is clear from the section that retrenchment comes when we talk about the workman and
not the apprentice. In the present case the respondent is an apprentice and not a workman.
Therefore, the termination of his services does not amount to retrenchment.

Apprentice not as an employee.

In E.S.I. Corpn. V. Tata Engg. & Co.6, it was held that apprentices are not employees.
They are engaged by a Company merely as trainees for a particular period for a distinct
purpose and the Company is not bound to employ them in their work after the training
period is over. The object of apprenticeship is learning under certain agreed terms. Simply
because certain payment is made to him and he has to be under certain rules of discipline
do not convert him to a regular employee. They are not said to be employed in or in

6
AIR 1976 SC 66

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 connection with the work of the Company. They are also not given wages within the
meaning of that word in Section 2(22).

It was held in Regional Director E.S.I. Corporation v. M/s. Arudyog & others7, that the
apprentices under any scheme are exempted from the operation of law relating to labour by
virtue of clause (b) of Section 18 of the Apprentices Act. Hence apprentices are not
employees for the purpose of determining the coverage of the Act.

In U.P. State Electricity Board v. Ashok Kumar Shukla and anr8, the first respondent as
per his contention was engaged as an apprentice under the Apprentices Act, 1961 as a Boiler
Attendant. He has worked for more than 240 days and his services were terminated after
expiry of 3 years term of contract of Apprenticeship. The Labour Court made an award in
view of the fact that the contract was not registered as required under Sec. 4(4) of the said
Act. Claim of respondent was allowed with full back-wages from the date of reference till
the date of award. The award was challenged by the Electricity Board on the ground that
the respondent was only apprentice and not a workman to claim benefits of the
U.P.Industrial Disputes Act, 1947. The High Court set aside the award and held that the
petitioner had sent the respondents contract (for apprentice) from to the concerned
authority for registration. If it was not responsible for the same. Secondly, the respondent
was in employment for 3 years without making claim for salary rather than stipend and this
disentitled the respondent for any relief.

In U.P.S.E.B. v. Shiv Mohan Singh9, the respondent was appointed as an apprentice trainee
and on completing of training for 3 years was relieved as per terms of appointment as an
apprentice. Labour Court gave an award in his favour declaring him entitled to benefit of
Section 25-F of the Industrial Disputes Act, 1947. The award was affirmed by the High
Court. Hence it was challenged before the Supreme Court. It was held that section 4(4) of
the Apprentices Act, 1961 was only directory and not mandatory and non-registration of
apprenticeship contract will not change character of apprentice or confer status of
workman. Respondent could not be declared to be a worker/workman and could not claim
the benefit of section 25-F of the Industrial Disputes Act, 1947.

7
(1987) I L.L.J. 292 (Bom)
8
(2003) II L.L.J 1013 (All.)
9
(2005) I L.L.J. 117 (S.C.).

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 In Raj Kumar Srivastava v. State of U.P.10, and others, it was held that the petitioner had
himself applied for engagement as an apprentice under the Apprentices Act, 1961 and
signed the contract under the provisions of the Act, particularly Section 18 which declares
that every apprentice undergoing training shall be trainee and not a worker. Therefore, the
petitioner was rightly held not to be a workman.

From the above cases discussed, it is clear that apprentice cannot be held as a workman as
in the present case Tikaram was only engaged as apprentice and not as a workman. And
according to the cases the apprentice who is going under the training shall not be considered
as a workman.

Section 18. The Apprentices Act, 1961-

Apprentices are trainees and not workers. -Save as otherwise provided in this Act,-

(a) every apprentice undergoing apprenticeship training in a designated trade in an

establishment shall be a trainee and not a worker; and

(b) the provisions of any law with respect to labour shall not apply to or in relation to such
apprentice.

In M/s Tannery & Footwear Corporation of India Ltd. Labour Court, Kanpur II &
others11, the question was whether an apprentice under the Apprentices Act can become a
regular workman by merely discharging the functions of a regular mechanic during the
training period. It was held that an apprentice under the Apprentices Act would not become
an apprentice for the purpose of Section 2(s) of the Industrial Disputes Act. The word
apprentice is used with different connotation and meaning under the two Acts. Having
accepted involvement as an apprentice and having undergone training as such, the
respondent cannot turn round and say that he became a regular employee nearly because
he was put in charge of some work by the petitioner. There was no master servant
relationship in this case.

In Patel Pravin Kumar Somnath & others v. Gujarat State Land Development Corpn.
Ltd. & others12 under the contract of Apprenticeship the petitioners were engage as mere
trainees for a period of one year and the Corporation was not bound to employ them in their

10
(1996) I L.L.J. 1054 (All)
11
(1994) II L.L.J. 1186 (All)
12
(1993) I L.L.J. 916 (Guj)

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 work after the training period was over. It was held that such Apprentices cannot be said to
be employed in connection with the work of the Corporation more so when they were not
given wages but only stipend. The relationship between the Corporation and the Apprentice
is not that of master and servant, on the other hand it is a contract of Apprenticeship pure
and simple under which Apprentices were to be given training for a specified period.

From the above discussion, we can conclude that Tikaram was an apprentice and never be
considered as a workman. As per section 18 of the Apprentices Act, 1961 it is clear that
apprentice during the period of apprenticeship cannot be said as worker. And after the end
of the period of apprenticeship, it is wrong to consider that it leads to make apprentice as a
worker.

Therefore, the termination of the respondent service does not amount to retrenchment.

|MEMORIAL ON BEHALF OF PETITIONER.

 PRAYER
___________________________________________________________________________

Wherefore in the light of facts presented, arguments advanced and authorities cited,
this Hon'ble Court might be pleased to adjudge and declare that,

The present appeal is maintainable.

The termination of respondent service does not amount to retrenchment.

And/or

Pass any other order which it deems fit in the ends of justice, equity and good conscience.

All of which is most respectfully submitted.

________________ S/d,

Counsel on behalf of Petitioner

|MEMORIAL ON BEHALF OF PETITIONER.