M/S Indian Telephone Industries ... vs Sh. Surinder Mohan Singh on 25 July, 2009

[Cites 58, Cited by 0]

Delhi District Court

M/S Indian Telephone Industries ... vs Sh. Surinder Mohan Singh on 25 July, 2009

                                   1/77

        IN THE COURT OF SHRI RAKESH TEWARI:
      ADDL. DISTRICT JUDGE-19: CENTRAL DISTRICT,
               TIS HAZARI COURTS : DELHI.

RCA NO.9/08/77

M/s Indian Telephone Industries Limited & Others
through the Managing Director, Doorawani Nagar,
Bangalore-16 and Regional Manager
Flat No.201-202, Rohit House,
3, Tolstoy Mart, New Delhi.
                                                        ....Appellant


                      VERSUS

Sh. Surinder Mohan Singh
s/o Sh. Ram Lal,
r/o 7-A/3, Channa Market, W.E.A,
Karol Bagh, New Delhi.
                                                      ....Respondent

Date of Institution : 04.11.1977
Date when the case reserved for order : 02.07.2009
Date of Order : 25.07.2009

ORDER

1. Before dealing with the merits of the present appeal, it is necessary to give the background of the case in which the present appeal has come before this court for hearing.

2. Initially, a suit for declaration was filed by the respondent bearing no.11/1974 which was decreed on 2/77 30.9.1977 by the court of Sh. L.D. Malik, the then Ld. Sub Judge, Delhi against which the appeal was filed by the present appellant bearing RCA no. 564/77 which was transferred to another court of Ld. ADJ namely Sh. P.K. Jain (as his Lordship then was) which was again registered as RCA no.55/1979 and this appeal was again transferred to the court of Sh. R.D. Aggarwal, the then Ld. ADJ which was registered as RCA no.105/79. Due to over typing in the order of Sh. R.D. Aggarwal, the then Ld.ADJ dated 12.11.1979, the number of the RCA appeared to be 195/79 although on the opening sheet of the appeal the RCA number was 105/79 which was clearly written in black ink. So, I am taking this appeal as bearing no.105/79.

3. Vide his order dated 12.11.1979, Sh. R.D. Aggarwal, the then Ld.ADJ allowed an application of the present respondent under Order 6 R 17 CPC wherein plaint was allowed to be amended to incorporate the condonation of delay for the period from 31.12.1969 to 2.8.1973 under Section 14 of the Limitation Act and the said appellate court remanded back the case to the Ld. Trial Court with the direction that it would proceed with the case further in 3/77 accordance with the provisions of law.

4. The successor Trial Court on the said direction of the said appellate court namely Sh. C.K. Chaturvedi, the then Ld. Civil Judge, Delhi framed an issue to the effect as to whether time spent in Labour Court can be condoned and if so its effect and vide his order dated 19.9.1983 decided the said issue in favour of the present respondent and allowed the period w.e.f 31.12.1969 to 2.8.1973 to be condoned under Section 14 of the Limitation Act and taking the said remand of the case by the said appellate court of Sh. R.D. Aggarwal, the then Ld. ADJ, Delhi as a limited remand, directed the file to be sent to the successor of the said appellate court and no decree sheet was prepared.

5. On receipt of the file by the then successor appellate court of Ld. ADJ, Delhi namely Sh. K.S. Gupta (as his Lordship then was), ordered that there was no occasion on the part of the court below to have sent this file to the said court after deciding the suit and the file was ordered to be send back to the Ld. Trial Court forthwith.

6. It seems that the present appellant has filed another appeal before the court of Sh. B.N. Chaturvedi, the then Ld. 4/77 Senior Sub Judge, Delhi (as his Lordship then was) bearing RCA no. 232/84 and the said court of the then Ld. Sr. Sub Judge, Delhi, came to the conclusion that the impugned order deciding the additional issue by the then Ld. Senior Civil Judge Sh. C.K. Chaturvedi dated 19.9.1983 is merged with the judgment and decree dated 30.9.1977 against which the appeal was already pending and as such no fresh appeal against the impugned order deciding an individual issue could be maintained separately in the circumstances of the case and dismissed the RCA no.232/84.

7. It further seems that thereafter the present appellant moved various applications for reviving the appeal and the application to revive RCA no.105/79 came before the court of Sh. G.S. Jugti, the then Ld. ADJ, Delhi for hearing and the said court vide its order dated 21.11.1997 came to the conclusion that the appeal decided by the court of Sh. R.D. Aggarwal, the then Ld. ADJ, Delhi on 12.11.1979 was not under Order 41 Rule 24 and no such direction was given by the appellate court as contained under Order 41 Rules 25 and 26 and the appeal was finally decided by the said court of Sh. R.D. Aggarwal, the then Ld. ADJ, under Order 41 Rule 23A 5/77 and as such the trial court was in error in sending the file to the appellate court under its judgment dated 19.9.1983 and that on 19.9.1983, the judgment was complete and final and since there was no appeal pending against the judgment and decree dated 19.9.1983, the application for rehearing of the appeal no.105/79 dated 4.11.1977 did not survive and the application was dismissed and he dismissed all such applications relating to appeal dated 4.11.1977.

8. In view of the said conflicting decisions of the court of then Ld. Sr. Sub Judge, Delhi dated 29.2.1984 in RCA no.232/84 and the decision of Sh. G.S. Jugti, the then Ld. ADJ dismissing the said application on 21.11.1997, the present appellant moved the Hon'ble High Court of Delhi vide Civil Revision No. 329/98 and the Hon'ble High Court of Delhi, vide its order dated 16.1.2007 came to the conclusion that only one of the said two views was possible as the first view which was possible was that the judgment dated 12.11.1979 passed by Sh. R.D. Aggarwal, the then Ld. ADJ, Delhi was a limited remand and the appeal was pending and that the second view was that the said decision disposed of the appeal. It was further held by the Hon'ble High Court of Delhi that 6/77 since both the views were not possible as they were mutually contrary to each other, taking note of the fact that the order dated 29.2.1984 passed by Sh. B.N. Chaturvedi, Ld. Sr. Sub Judge (as his Lordship then was), who decided RCA No.232/84 has attained finality, the impugned order passed by Sh. G.S Jugti on 21.11.1997 could not be allowed to stand and the said order was accordingly set aside, RCA no. 105/79 (it seems that due to said reasons RCA number is mentioned in the order of the Hon'ble High Court of Delhi as RCA no.195/79 whereas in the covering letter, whereby the said order was communicated to the Ld. Predecessor of this court, is mentioning the appeal number as 105/79) against the judgment and decree dated 30.9.1979 passed by Sh. L.D. Malik and the application which was decided by Sh. G.S. Jugti, the then Ld. ADJ, Delhi were accordingly revived. It was further allowed by the Hon'ble High Court of Delhi to the parties to take all pleas available to be urged before the present appellate court including the issue whether there existed any executable decree.

9. Although the Ld. Counsel for the respondent has urged before me that the order of Sh. K.S. Gupta, the then 7/77 Ld. ADJ, Delhi (as his Lordship then was) was not brought to the notice of the Hon'ble High Court of Delhi in Civil Revision No. 329/98, otherwise the Hon'ble High Court of Delhi would not have passed the said order. In my considered opinion, this argument has no merit in view of the fact that Hon'ble High Court of Delhi in Civil Revision No. 329/98 has referred to the order of Sh. G.S. Jugti, the then Ld. ADJ, Delhi dated 21.11.1997 and discussed the view taken by him. I myself have carefully gone through the said order of Sh. G.S. Jugti, the then Ld. ADJ, Delhi and in para 14 of the said order dated 21.11.1997, the order passed by Sh. K.S. Gupta, the then Ld. ADJ, Delhi (as his Lordship then was) dated 10.10.1983 was fully mentioned and as such it cannot be said at all that the said order passed by Sh. K.S. Gupta, the then Ld. ADJ, Delhi (as his Lordship then was) was not brought to the notice of the Hon'ble High Court of Delhi in the said Civil Revision No. 329/98.

10. It is also pertinent to mention that the Trial Court Record of suit no.11/74 was destroyed in the fire and the said suit file was ordered to be reconstructed, which was reconstructed but during the hearing of the appeal, 8/77 particularly on the issue of condonation of delay in filing the suit, I came across the situation where some of the proceedings taken before the concerned conciliation authority under the Labour Laws were not on the record and I directed to summon the said record but on 24.9.2008 the officials from the office of Commissioner (Labour), Delhi, submitted a written report that the requisite record of file no. F.24(404)/70/Lab. with regard to Sh. Surender Mohan, the respondent, could not be traced out.

11. It was in this background that this appeal came up for hearing before this court.

12. The appellant has placed on record additional grounds of appeal and the respondent has filed reply to the same with a strong objection that grounds no.10 to 15 were already available to the appellant prior to remanding of the case by the court of Sh. R.D. Aggarwal, the then Ld. ADJ, Delhi, and the appellant cannot take new grounds now. I shall be discussing the said controversy at the appropriate place in this judgment.

13. The facts giving rise to the present appeal are that the respondent/plaintiff was selected by the 9/77 appellant/defendant no.1 namely M/s Indian Telephone Industries Limited, Bangalore, vide letter bearing no.W/APPTS/17141 dated 19.5.1967 and was appointed as Apprentice Grade-B on a stipend of Rs. 115/-p.m plus D.A for the first year of appointment and @ Rs. 140/- p.m plus D.A for the second year of appointment and that the respondent/plaintiff received another communication dated 19/22.5.1967 from the appellant/defendant no.1 directing the respondent/plaintiff to report for duty with the appellant/defendant no.2 and accordingly, the respondent/ plaintiff resumed duties with the appellant/defendant and the appellant/defendant also got executed an agreement dated 5.5.1967 detailing the terms and conditions of his employment and the respondent/plaintiff vide order dated 4.2.1969 was put on duty for testing of cables but later on the Assistant Regional Manager of the appellant/defendant asked the respondent/plaintiff to carry out certain duties which were not part of the functions of the respondent/plaintiff as an Apprentice and that the Assistant Regional Manager of the appellant/defendant became inimical towards the respondent/plaintiff and levelled certain misconceived and 10/77 unfounded charges of misconduct, insubordination and disobedience of the orders and the appellant/defendant unilaterally and illegally appointed Sh. P. Raghunathan, an employee of the appellant/defendant as Enquiry Officer vide communication dated 25.6.1969, who submitted an enquiry report and illegally terminated the services of the respondent/plaintiff vide communication number ASP/17141(70) dated 27.11.1969 and the respondent/ plaintiff has further alleged in his plaint that the termination of his services was illegal and the Departmental enquiry, on the basis of which said order of termination was passed, was also opposed to the principles of natural justice which was liable to be quashed and declared illegal on various grounds inter- alia that no reasonable opportunity was given to the respondent/plaintiff to represent his case before the Enquiry Officer and that the respondent/plaintiff was not given any person/lawyer to assist or defend him in the enquiry proceedings and that no copy of preliminary enquiry on the basis of which charge sheet was framed was supplied to the respondent/plaintiff although he had asked for the same and that the respondent/plaintiff was not allowed to cross 11/77 examine the witnesses at full length and the questions in the enquiry proceedings were put by the Enquiry Officer himself and that the proceedings were fake one and that the respondent/plaintiff was not issued any show cause notice and that the Disciplinary Authority had not applied his mind and had not considered the report of the Enquiry Officer and that the report of the Enquiry Officer was not supplied to the respondent/plaintiff and that the respondent/plaintiff could not prefer any appeal against the said order of termination and that the appeal was not considered by the Disciplinary Authority and no speaking order was passed and that the order of termination was biased.

14. It was further pleaded in the plaint by the respondent/plaintiff that cause of action arose in his favour on 27.11.1969 when his services were terminated and on 31.7.1973 when the last order from the Conciliation Officer was received and he has also pleaded in his plaint in para 13 that cause of action was arising on day to day basis and he prayed that a declaratory decree in favour of the respondent/plaintiff and against the appellant/defendant be passed declaring that the termination order dated 27.11.1969 12/77 of the respondent's service was illegal, ultra virus, uncalled for, unenforceable and not binding on the respondent/ plaintiff.

15. The plaint was amended by the respondent/plaintiff from time to time and it was one such amendment application which was allowed by the order dated 12.11.1979 by the court of Sh. R.D. Aggarwal, the then Ld. ADJ, whereby the plaintiff/respondent was allowed to incorporate the fact towards cause of action that the condonation of delay for the period from 31.12.1969 to 2.8.1973 may be allowed giving benefit as provided under Section 14 of the Limitation Act.

16. The appellant/defendant in his written statement took the preliminary objections that the suit was not maintainable and was not properly valued for the purposes of court fee and jurisdiction and on merits, it was asserted that the order of termination was perfectly legal.

17. Originally five issues were framed out of which issue no.2 with regard to the privity of contract between the parties and issue no.3 with regard to the valuation of the suit were not pressed for by the appellant/defendant and as such the 13/77 said two issues were decided in favour of the respondent/ plaintiff and the issue no.1 regarding the maintainability of the suit and issue no.4 with regard to the illegality of the termination of the respondent's service were taken together by the Ld. Trial Court and were decided in favour of the plaintiff/respondent and the relief was granted to the plaintiff/respondent that his termination order dated 27.11.1969 was illegal and not binding on the respondent/ plaintiff.

18. So far as the issue with regard to condonation of delay in filing the suit under Section 14 of the Limitation Act was concerned, it was also decided in favour of the respondent/plaintiff by the successor court of the trial court vide order dated 19.9.1983.

19. I have heard Ld. Counsels for both the parties and perused the record including Trial Court Record.

20. Both the Ld. Counsels for the parties have advanced two fold arguments. One set of arguments was towards condoning the delay under Section 14 of the Limitation Act by the Ld. Trial Court vide order dated 19.9.1983 and the other set of arguments was towards the merits of the issues vide 14/77 judgment dated 30.9.1977 whereby the suit of the respondent/plaintiff was decreed.

21. At the very outset, it is pertinent to mention here that as the Trial Court Record was burnt, the appeal has been decided as per copies of the record admitted by both the parties and during the course of arguments, no objection was raised with regard to the validity or originality of the copies of the pleadings or the documents.

22. Before dealing with the first set of arguments qua the condonation of delay in filing the suit under Section 14 of the Limitation Act, I may point out that admittedly the appellant did not lead any evidence on this issue before the successor trial court who decided the issue and condoned the delay in filing the suit. However, the deposition of the respondent/plaintiff is required to be reproduced here. The respondent/plaintiff appeared in the witness box and he stated on Oath that he was terminated on 27.11.1969 by the appellant/defendant illegally and that after consulting Labour Legal Adviser, he filed a petition before the Conciliation Officer known as Assistant Labour Commissioner, on 31.12.1969 and that thereafter the 15/77 conciliation started there and both the parties have appeared and that Ex.PX1 to Ex.PX4 are the letters from the reconciliation officer and Ex.PX5 is the letter submitted by the Regional Manager of the appellant/defendant and that as per Ex.PX1 the respondent/plaintiff was summoned for settlement on 2.8.1973 before the Assistant Labour Commissioner and that thereafter the case was being adjourned on several dates and in the end of the Labour Conciliation Officer told the respondent/plaintiff that since he was an Apprentice, therefore, the Labour Court had no jurisdiction and that thereafter he consulted 2-3 Advocates, out of them one was Sh. K.D. Sharma and that thereafter he sent a notice and filed a suit on 5.12.1973 and that the period from 31.12.1969 to 5.12.1973, which he spent in good faith and on the advice of the Legal Practitioner in Labour Courts be condoned and that as he was not a legal man and did not understand the complications of the limitation.

23. In his cross-examination on behalf of the appellant/ defendant, the respondent/plaintiff replied that one Mr. Sarwan Singh was advising him before the conciliation Officer and that during conciliation he never went to any 16/77 other Advocate and that Mr. Sarwan Singh was Advocate at that time who was in practice and that respondent/plaintiff was not aware that the Labour Court had no jurisdiction over the matter in dispute. The respondent/plaintiff denied the suggestion that he was deposing falsely. He further replied that he went to Sh. K.D. Sharma after the conclusion of the proceedings before the Conciliation Officer and the last date before the conciliation was sometime after 2.8.1973 and that he went two or three times after the letter Ex.PX1 and he did not remember exact date of the conciliation court and that he went within a week to Sh. K.D. Sharma after the conclusion of the proceedings but again said after two weeks. The respondent/plaintiff could not exactly tell how much time Sh. K.D. Sharma took in filing the suit. The respondent/plaintiff further denied the suggestion that he did not want to depose about the dates. He further denied the suggestion that he remembered the dates.

24. On the face of the said evidence on the record, Ld. counsel for the appellant raised first contention that the legal opinion given by the Advocate for going to the Conciliation Officer under the Labour Laws was not proved on the record 17/77 nor the Counsel was produced nor the Conciliation Officer was examined and in this regard Ld. counsel for the appellant has relied upon a judgment of the Hon'ble High Court of Delhi reported as AIR 1973 Delhi 24 titled Banwarilal and Sons Pvt. Ltd. Vs. Union of India and another wherein the Hon'ble High Court of Delhi while dealing with a case under Section 5 of the Limitation Act has held that very able counsel of long standing giving opinion contrary to the latest and widely known pronouncement of law by Supreme Court and High Court cannot be treated as bonafide mistake so as to condone the delay under Section 5 of the Limitation Act.

25. Ld. counsel for the appellant has further relied upon a judgment of the Hon'ble High Court of Delhi titled Babu Ram Vs. Devinder Mohan Kaura and others reported as AIR 1981 Delhi 14 wherein the Hon'ble High Court of Delhi was dealing with a question as to whether mistaken advice by Senior Counsel if constitutes "sufficient cause" and "good faith" under Section 5 and Section 14 18/77 of the Limitation Act and held that where the senior counsel who had initially advised filing of revision and on realising that an appeal was competent directed filing of appeal by withdrawing revision, made an affidavit with the application for condonation of delay in filing the appeal that he honestly believed that a revision petition was to be filed instead of appeal but did not explain how he honestly believed so, mistaken advice of the counsel could not constitute either 'Sufficient cause' within meaning of Section 5 or evidence of 'good faith' within meaning of Section 14.

26. In the said two cases, Hon'ble High Court of Delhi was dealing with the advice given by the Senior Counsels and in the hyper technical questions of pure civil law and the said Senior Counsels were themselves prosecuting the previous wrongly filed proceedings and in the case of Banwarilal (Supra), the court was concerned only with Section 5 of the Limitation Act and in the Babu Ram's case (Supra), the Hon'ble High Court of Delhi distinguished the judgment of the Hon'ble Supreme Court reported as AIR 1970 SC 1953. 19/77 In the case before the Hon'ble Supreme Court the appeal which ought to have been filed in the High Court of Delhi on proper calculation of valuation for the purposes of jurisdiction, was filed before the court of District Judge who returned the appeal for being presented to the proper Court and when it was refiled in the High Court, it was found to be barred by time and the Ld. Counsel not only refiled the appeal in the High Court but separately challenged the order returning the appeal, by way of revision petition, for being filed in the High Court and for his view, why he had filed the appeal in the Court of the District Judge instead of filing in the High Court, the Ld. Counsel gave explanation by way of relying upon a particular rule and it was in these circumstances that the Supreme Court considered the mistaken advice of the counsel as having been given bona fide and in good faith and held it 'sufficient cause" for condonation of delay in filing the appeal before the proper Court.

27. This distinction by the Hon'ble High Court of Delhi in Babu Ram's case (Supra) with the decision of the Hon'ble Supreme Court as referred above, goes to establish that the question of wrong legal advice given by a counsel is to be 20/77 decided in reference to the particular case before which the question arises.

28. In Banwarilal's case (Supra) there was an objection to the prior proceedings and the question was to determine the "sufficient cause" within the meaning of Section 5 of the Limitation Act till then and it was in this background that wrong advice of the counsel as to whether an appeal to the Supreme Court would lie or a Letters Patent would lie to the Hon'ble High Court was held not to be a sufficient cause for condonation of delay. In Babu Ram's case (Supra) the court was faced with a situation where an appeal was maintainable against the order passed by the subordinate court under Order 43 of the CPC but instead of that a revision petition was preferred and it was the Registry of the Hon'ble High Court which objected to the same and it was in this background that wrong advice of the counsel in filing the revision petition was not condoned under Section 5 and 14 of the Limitation Act.

29. None of the said judgments is applicable to the facts of the present case wherein no objection was filed before the Conciliation Officer with regard to his jurisdiction on behalf 21/77 of the appellant nor before the Civil Courts when the present suit was filed till respondent amended his plaint to incorporate the relief of condonation of delay. Against this, the present appellant not only attended the Conciliation Officer in the labour proceedings but also filed the terms of settlement before the Conciliation Officer vide their representation dated 28.7.1972. It seems that no Lawyer was also appearing before the Conciliation Officer for either of the parties. In these circumstances, the contention of the Ld. counsel for the appellant that no evidence by producing the Lawyer concerned who advised the respondent to choose the said wrong forum, becomes futile and same is hereby rejected.

30. The next contention raised by the Ld. counsel for the appellant was that the Conciliation Officer under the Industrial Disputes Act, 1947 was not a court nor proceedings before him were civil proceedings and in this connection he has relied upon a judgment of the Hon'ble Supreme Court titled Telco Convoy Drivers Mazdoor Sangh and another Vs. State of Bihar and others reported as (1989) 3 Supreme Court Cases 271 wherein it was held that 22/77 making a reference of industrial dispute by the government is an administrative function and the government is the administrative authority and the government cannot determine the industrial dispute itself.

31. Ld. counsel for the appellant has further cited a judgment of the Hon'ble Supreme Court titled Prakash H. Jain Vs. Marie Fernandes (Ms) reported as (2003) 8 Supreme Court Cases 431 wherein while dealing with the competent authority under Section 40 of Maharashtra Rent Control Act, 1999, it was held by the Hon'ble Supreme Court that the said authority was a statutory authority with no power to condone delay in filing of an affidavit with grounds of defence and application for leave to contest under Section 43(4)(a) of the said Act. The said judgment of the Hon'ble Supreme Court is ipso facto not applicable to the present case as the Conciliation Officer was not dealing with any condonation application as such.

32. To the same effect was the judgment of the Kerala High Court titled Ulahannan Chacko and others Vs. 23/77 Pareed Marakkar and others reported as AIR 1978 Kerala 161 wherein the appellate authority under the Rent Control Act was not held to be a Court.

33. Ld. counsel for the appellant has further cited a judgment of the Hon'ble Supreme Court titled The State of Madras Vs. C.P. Sarathy and another reported as AIR 1953 Supreme Court 53 which was again dealing with the power of the government to refer the industrial dispute for adjudication under Section 10 of the Industrial Disputes Act, 1947 and it was held that government was mere an administrative authority while referring the dispute and it was not a judicial or quasi judicial authority. He has further referred to the judgment of the Hon'ble Supreme Court titled State of Bombay Vs. K.P. Krishnan and others reported as AIR 1960 Supreme Court 1223 which was also dealing with the powers of the government under Section 12(5) and under Section 10(1) of the Industrial Disputes Act, 1947 and also discussed the role of Conciliation Officer in the said judgment and it was held that these were mere administrative functions. He has further relied 24/77 upon the judgment of the Hon'ble Supreme Court titled M/s Western India Match Co. Ltd. Vs. The Western India Match Co. Workers Union and others reported as 1970(1) Supreme Court Cases 225 where the question was again with regard to the reference of industrial dispute to be adjudicated by the Industrial Tribunal.

34. Ld. counsel for the appellant has further relied upon a judgment of the Allahabad High Court titled Noor Ali Vs. Kanpur Omnibus Service Ltd. reported as AIR 1955 Allahabad 707 wherein it was held that an authority appointed under Section 15(1) of Payment of Wages Act, is a persona designata and cannot be regarded as a Civil Court within the meaning of Section 14 of the Limitation Act and the proceedings before such an authority cannot be regarded as civil proceedings. To the same effect was the judgment of the Hon'ble Calcutta High Court titled Panchanan Bhattacharjee Vs. Authority under the Payment of Wages Act for West Bengal and another reported as 1984 LAB. I.C. NOC 1. A further judgment of the Hon'ble Mysore High Court titled 25/77 Annu alias Kallappa Vs. Sheshu Gundappa reported as AIR 1970 Mysore 318 was cited on behalf of the appellant wherein it was held that the proceedings referred to in Section 14 are proceedings dealt with under the Code of Civil Procedure in a Court exercising general civil jurisdiction to which alone provisions of Limitation Act apply. Further, the other proceedings referred to therein must be proceedings which relate to the same matter in issue and by taking which the party bona fide believes that he might secure the relief which is under consideration and the relief sought under the Bombay Agricultural Debtors Relief Act were held beyond the scope of Section 14 of the Limitation Act. Similarly, Ld. counsel for the appellant cited a judgment of the Hon'ble Madras High Court titled S. Suppiah Chettiar Vs. V. Chinnathurai and another reported as AIR 1957 Madras 216 wherein the time taken in the prior proceedings under the Workmen's Compensation Act was not condoned under Section 14 of the Limitation Act.

35. In all the said judgments of the different High Courts 26/77 the word used was "Civil Courts" and the "civil proceedings"

and some of the Hon'ble High Courts have gone to the extent of taking the civil proceedings only under the Civil Procedure Code.

36. The said judgments are in sharp contrast to the judgment of the Hon'ble Supreme Court cited by the Ld. Counsel for the respondent titled P. Sarathy Vs. State Bank of India reported as (2000) 5 Supreme Court Cases 355 wherein the court was dealing with the office of Deputy Commissioner of Labour (Appeals), Madras who was held a "Court" but it was opined by the Hon'ble Apex Court that the said authority may not be a "civil court". It was further held that Section 14 of the Limitation Act does not speak of a "civil court" but speaks only of a "court" and that any authority or tribunal having the trappings of a court would be a "court" within the meaning of this section and it was further held that proceedings before the said authority were civil proceedings.

37. To the said extent, I am in complete agreement with the Ld. Counsel for the respondent so far as he has placed 27/77 reliance upon the said judgment of the Hon'ble Supreme Court in P. Sarathy's case (Supra) but in the last part of para 13 of the said judgment citing another case of the Hon'ble Supreme Court, the Hon'ble Apex Court observed that an essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has FINALITY and AUTHORITATIVENESS which are the essential tests of a judicial pronouncement.

38. Ld. counsel for the appellant has also relied on the said premises laid down by the Hon'ble Supreme Court that it is the power to adjudicate which is the essential element of a court.

39. To meet this argument, Ld. Counsel for the respondent has developed his argument that before a proceeding come to a court to be adjudicated, some other requirements may be there under the law which are to be fulfilled so that it may ultimately culminate into a proceeding before a court and in this regard Ld. Counsel for the 28/77 respondent has admitted the judgments of the Hon'ble Supreme Court in Telco Convoy's case (Supra), The State of Madras Vs. C.P. Sarathy's case (Supra), State of Bombay Vs. K.P. Krishnan's case (Supra) and admitted that the Conciliation Officer under the Industrial Disputes Act, 1947 may not be a "court" in the strict sense of the term, although he has been given some trappings of civil court under the said Act but the proceedings before the Conciliation Officer may be a link which may ultimately culminate into an industrial dispute after the second link i.e. the government concerned whose duty is to refer the industrial dispute for adjudication before the Labour Courts or the Industrial Tribunal, as the case may be. Ld. Counsel for the respondent has taken me through para 7 of the judgment of Hon'ble Supreme Court in the case titled State of Bombay Vs. K.P. Krishnan (Supra) wherein it was held that Section 12(2) requires the conciliation officer to investigate the dispute without delay with the object of bringing about a settlement and during the course of his investigation he may examine all matters affecting 29/77 the merits and the right settlement of the dispute and do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement. It was further observed in the said para by the Hon'ble Supreme Court that the duty and function of the conciliation officer is, as his very name indicates, to mediate between the parties and make an effort at conciliation so as to persuade them to settle their disputes amicably between themselves and if the conciliation officer succeeds in his mediation S.12(3) requires him to make a report of such settlement together with the memorandum of the settlement signed by the parties to the dispute and that Section 18(3) provides that a settlement arrived at in the course of conciliation proceedings shall be binding on the parties specified therein. It was further observed by the Hon'ble Apex Court that sometimes efforts at conciliation do not succeed and in such cases the conciliation officer has to send his report to the appropriate 30/77 government under Section 12(4) and this report must set forth the steps taken by the officer for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances and the reasons on account of which in his opinion a settlement could not be arrived at and the object of requiring the conciliation officer to make such a full and detailed report is to apprise the Government of all the relevant facts including the reasons for the failure of the conciliation officer so that the Government may be in possession of the relevant material on which it can decide what course to adopt under Section 12(5). It was further observed by the Hon'ble Supreme Court that Section 12(5) with which they were concerned in the said case provides that if, on a consideration of the report of the conciliation officer, the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference.

40. On the basis of said nature of proceedings before the 31/77 conciliation officer, Ld. Counsel for the respondent has contended that the conciliation officer is the first link in the chain on one hand and on the other end is the dispute adjudicated by the Labour Court or the Industrial Tribunal as the case may be. He has further contended that it is because of the intention behind labour laws that the workmen belonging to the weaker section of the society may not be compelled to go for a long adjudicating procedure against a mighty industry and the first step of resolving the dispute by conciliation has been provided under the Industrial Disputes Act, 1947. He has further contended that if in the present case the conciliation would have arrived at before the Conciliation Officer and particularly in view of the fact that there was no objection to the authority of the conciliation officer on the ground of jurisdiction on behalf of the appellant till that time, no question would have arisen for filing the present suit. In order to support his contention that if the present respondent would have been a "workman" and if the industrial dispute would have been ultimately referred to the Industrial Tribunal and if the Industrial Tribunal would have come to the conclusion that the present 32/77 respondent was not a "workman" then what would have been the position regarding condonation of delay of the period taken by the Industrial Tribunal in holding that the respondent was not a "workman" and in this regard he has cited a judgment of the Hon'ble Madras High Court titled V.S. Ranganatha Iyer Vs. Principal Labour Court, Madras and another reported as 1995 LAB. I.C. NOC 2 (MAD.) wherein it was held that the petitioner who was proceeding under Industrial Disputes Act for relief and the Industrial Court holding petitioner not to be workman and refusing relief and thereafter the petition was filed and in these circumstances, time taken in proceeding under I.D Act has to be excluded for considering delay in filing petition. He has further contended that in service matters particularly where the person has been terminated, reduced in rank or compulsorily retired, the preponderance of the judicial opinion is towards condoning the delay of the time which was taken in the prior proceedings and he has also relied upon a judgment of the Hon'ble Supreme Court titled Nand Kishore Vs. State of 33/77 Punjab reported as 1996 Lab. I.C. 610(SC) wherein the three member bench of the Hon'ble Apex Court was goaded to invite a special leave petition by the appellant against the order dated 5.2.1962 of the Hon'ble Punjab High Court in writ application accompanied by an appropriate application for condonation of delay and the Division Bench of the Hon'ble Apex Court has held that the step of the three- member Bench so taken revealed its mind as reflected in the proceedings and their Lordships wanted to do substantial justice and it was thought better to advice the petitioner to file a special leave petition and the Hon'ble Division Bench of the Apex Court condoned the delay in the said exceptional circumstances. He has concluded his said contention that the proceedings before conciliation officer may culminate into an industrial dispute and though the conciliation officer may not be a "Court" but if it is found that even if conciliation proceedings would have failed, the present respondent would not have got relief for his not being a workman then such time taken in the said proceedings is bound to be condoned.

41. Ld. counsel for the appellant has further contended that if the said argument of the respondent is to be accepted, 34/77 the position in the case is that the respondent abruptly abandoned prosecution of his case before the conciliation officer and filed this suit. Neither the conciliation proceedings could materialize nor the same were declared as failed and he has further contended that we are not in a position to know as to whether the claim of the present respondent was similar in the present suit as well as the proceedings before the conciliation officer. He has further contended that this is the requirement of Section 14 of the Limitation Act that prior proceedings and existing proceedings must be for similar relief.

42. I have already pointed out that this court as an appellate court has tried to summon the record of the concerned Labour office with regard to the proceedings before the conciliation officer but the same were not available and disability before this appellate court is that the original Trial Court Record was burnt and whatever was reconstituted was not complete in itself which transpired during the course of final arguments in this appeal.

43. The position which emerges from the evidence on the record is that DW1 has claimed in his deposition that he has 35/77 been pursuing the case before the conciliation officer on behalf of the appellant and the respondent did not pursue his case. On the other hand, the respondent as a plaintiff has deposed that the conciliation officer opined that he being an apprentice was not a "workman" under the Industrial Disputes Act, 1947 and as such he did not pursue the conciliation proceedings and filed this present suit.

44. Ld. Counsel for the respondent on this evidence has argued that there was no logic in first pursuing the case before the conciliation officer even after it came to the knowledge of the respondent that he was not a "workman", get the ultimate result of the conciliation proceedings or a reference of the industrial dispute by the Government to the concerned Industrial Tribunal or to get the verdict of the Industrial Tribunal to the effect that respondent was a "workman" or not and in these circumstances he has rightly abandoned and not pursued the case before the conciliation officer. Ld. Counsel for the respondent has further pointed out that there are some documents/proceedings before the conciliation officer available on the record which have been filed and admitted by the appellant. The said documents 36/77 were the notices issued to the respective parties to attend the conciliation proceedings and in the notices in the title itself it is mentioned that this notice was being sent with regard to the dismissal of the respondent (the use of the word in vernacular is "Barkhast") and in the said circumstances, the appellant was fully aware with regard to the relief he has claimed before the conciliation officer and even vide their letter dated 28.7.1972 the appellants proposed the terms of settlement also wherein they were ready and willing to give some concession qua wages and stipends to the respondent but there was no mention with regard to the question of dismissal of the respondent and the Ld. Counsel has further taken the stand that as the dismissal of the respondent was in utter disregard of the statutory rules and standing order of the appellant and is dismissal by way of stigma, the respondent is well within his rights to ignore such a patently illegal dismissal and there was no period of limitation prescribed for getting the said illegal dismissal set aside and even there is no need of applying Section 14 of the Limitation Act and in this regard he has relied upon a judgment of the Hon'ble Supreme Court in the case titled The State of 37/77 Madhya Pradesh Vs. Syed Qamarali reported as 1967 SLR page 228 wherein it was held that if the order of dismissal was void and had no legal existence and has been passed in utter disregard to the rules then it was not necessary to have the dismissal order set aside by a court and that the defence of limitation which was based only on the contention that the order had to be set aside by a Court before it became invalid must, therefore, be rejected. Ld. Counsel for the respondent has further pointed out that the said judgment was relied by the Hon'ble Punjab High Court in the case titled Amrik Singh Constable Vs. The State of Punjab reported as 1980(2) Services Law Reporter 616 wherein it was held that if the order of removal from service was in violation of police rules, the order is void and was having no legal existence and it was, therefore, not necessary for the appellant to have that order set aside by the court.

45. Ld. Counsel for the respondent has further relied upon a judgment of the Hon'ble Punjab and Haryana High Court titled Nachhatter Singh Vs. State of Punjab and 38/77 others reported as 1991(1) Services Law Reporter 28 wherein in para 6 of the judgment it was held by the said Hon'ble High Court that once the order of termination of services is contrary to the mandatory provisions of Article 311(2) of the Constitution, the same would be void in the eye of law and relying upon the said judgment of the Hon'ble Supreme Court in The State of Madhya Pradesh Vs. Syed Qamarali's case (Supra) it was further held that it was not necessary to bring a suit for declaration for setting aside the order within a period of three years and the order of the learned Additional District Judge treating the suit to be barred by limitation was set aside being contrary to the law laid down by the Apex Court.

46. Ld. Counsel for the respondent has further pressed a direct judgment of a Division Bench of the Hon'ble Bombay High Court titled Satyabhamabai Kom Janardan Khare Vs. Govind alias Babu Bin Janku Bade reported as 1914 The Indian Law Reporters Vol. XXXVIII page 653 (Reference no.2 of 1914) wherein the time taken by the 39/77 plaintiff before the conciliation officer was condoned because the Government abolished the conciliation system with effect from a particular date and thereafter the plaintiff filed a suit to recover the money and he claimed to exclude the time which he spent before the conciliation officer. To answer the said contentions of the Ld. Counsel for the respondent, the Ld. counsel for the appellant has submitted that the respondent was not governed by any statutory rules and he was just governed by the contract of apprenticeship only and the enquiry was conducted to find out as to whether to continue with the contract of apprenticeship or not.

47. I find no force in the said contention of the Ld. counsel for the appellant in view of the fact that clause I(g) of the agreement Ex.P2 dated 5.5.1967 commands the respondent to obey and abide by all the rules, regulations and standing orders of the company with regard to Apprentices/employees in the matter of hours of work, leave, overtime and other matters. Further, in view of clause VII of the said agreement which also mentions that for the reasons of unsatisfactory work, conduct or progress or 40/77 breach on the part of the Apprentice of any of the terms and conditions of the agreement or of any of the rules and regulations of the company, the respondent may be suspended or dismissed or the agreement may be cancelled or his period of apprenticeship may be extended and in the termination letter of the agreement, the said clause VII of the said agreement has been referred to which is Ex.P9. Similarly, the said clause VII is mentioned in the letter dated 30.12.1969 Ex.P8 whereby it was communicated to the respondent that the findings and proceedings of the enquiry was not being supplied to him and his request for reinstatement was also turned out and in view of the enquiry report Ex.DX3 wherein in the last sentence of the conclusion it was held that the respondent was guilty of disobeying lawful orders of his superiors under Section 13.1 of the Standing orders of the company. I have also a copy of the Standing Orders on the record which mentions that the same were framed under Section 7 of the Industrial Employment (Standing Orders) Act, 1946 in which classification of workmen in standing order (2) mentions that workmen shall be classified which included the apprentice also. 41/77

48. The question before me is that as to whether there was a justification for the respondent to have moved by way of proceedings under the Labour Laws or was he proceeding before the conciliation officer without any basis at all. In my considered opinion and in view of the fact that the definition of the "workman" as given in Section 2(s) of the Industrial Disputes Act, 1947 includes the apprentice and the second question before me was that in view of the deposition of the plaintiff before the Ld. Trial Court that he was informed by the conciliation officer that he was not a workman was also justified because admittedly he was an apprentice and was governed by the Apprenticeship Act, 1961 wherein not only in the definition clause Section 2(r) an apprentice has not been covered under the term "worker" and as per Section 18 of the Apprenticeship Act, 1961 it has been happily worded that every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker and the provisions of any law with respect to labour shall not apply to or in relation to such apprentice.

49. The hyper technical approach taken by the Ld. counsel for the appellant that the said conciliation officer 42/77 being an administrative authority has no business to decide as to whether the respondent was a workman or an apprentice, is against the ground reality in the present case which can be easily inferred from the circumstances that a person like respondent belonging to a weaker socio-economic strata must have followed whatever was told to him by anyone because of his lack of knowledge of the forum where to pursue his case which is fortified by his deposition that even after leaving his case before the conciliation officer, he consulted two or three Lawyers. Even otherwise, the said approach of the Ld. counsel for the appellant is not tenable in view of the fact that the appellant never objected the jurisdiction of the conciliation officer and till date even during the final arguments no objection was raised against the maintainability of the suit nor the same was argued before me that prima facie in view of Section 20 of the Apprenticeship Act, 1961 the suit was not maintainable because any disagreement or dispute between an employer and an apprentice arising out of the contract of apprenticeship shall be referred to the apprenticeship adviser for decision and against any such decision of the said adviser 43/77 the appeal was maintainable before the Apprenticeship Council whose decision shall be final. Although jurisdiction of the civil court is not barred in any of the provisions of the Apprenticeship Act, 1961, but I have discussed the said Act in order to find out the justification with the respondent for filing the present suit.

50. Last but not the least, the approach towards condonation of delay has been defined by the Hon'ble Supreme Court in the case titled State of Bihar and Others Vs. Kameshwar Prasad Singh and Another reported as AIR 2000 SC 2306 wherein the Hon'ble Apex Court although dealing with a request under Section 5 of the Limitation Act but has laid down the broad principles and objects with which the condonation of delay may be granted in a proceeding and it was held that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated and that as against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. It was further observed by the Hon'ble 44/77 Apex Court that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay and that there is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of malafides and that a litigant does not stand to benefit by resorting to delay and that in fact, he runs a serious risk. It was further observed by the Hon'ble Supreme Court that it must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

51. The sum total of my said discussion is that I am in complete agreement with the contentions raised by the Ld. Counsel for the respondent, as mentioned above and following the decisions of the superior courts relied by him, I hold that no time limit was required to file the present suit and even otherwise if there was a limitation prescribed for filing the suit and the suit was filed after some delay, the same was rightly condoned by the Ld. Trial Court although I 45/77 have the different reasons for the same as discussed above.

52. Coming to the another set of arguments on the merits of the grounds of appeal now. The first and foremost argument advanced by the Ld. counsel for the appellant is that the apprenticeship of the respondent was terminated because he refused to follow the order of his superiors for bringing the tools and almirah and he protested against the said duty assigned to him by his superior officers on the ground that it was not the part of his training programme nor was the part of the apprenticeship agreement. Ld. counsel for the appellant has further argued that first he should have obeyed the order and then he would have challenged the legality or the proprietary of the said order and he could not have decided the things himself and in this regard Ld. counsel for the appellant has relied upon a judgment of the Hon'ble High Court of Delhi in LPA no.26 of 2007 decided on 3.12.2008 titled R.K. Singhal Vs. Presiding Officer Industrial Tribunal.

53. In the said judgment of the Hon'ble High Court of Delhi in LPA no.26 of 2007, the appellant was working as a 46/77 Senior Laboratory Assistant in the department of Anthropology, University of Delhi and on 27.9.1975, the post of Storekeeper was abolished and posts of Senior Technical Assistants and Junior Lab Assistants were created in the different departments of the University and in the department of Anthropology there was only one post of Technical Assistant created by abolishing existing post of Storekeeper and the existing Technical Assistant was promoted as Senior Technical Assistant w.e.f. 11.11.1976 and the appellant was promoted as Technical Assistant in the department of Anthropology to whom the previous Technical Assistant handed over the charge and when the appellant was on leave from 7.8.1981 to 16.9.1981, the Head of the Department issued a letter dated 15.9.1981 asking him to hand over charge of the store to the previous Technical Assistant who was already promoted as Senior Technical Assistant and the appellant did not comply with the order and protested against the same and requested to review the said order in the light of decision of Executive Council but the Head of the Department again directed the appellant to hand over the charge of the store to the previous Technical 47/77 Assistant but the appellant did not comply that order also and wrote a letter to the Head of the Department to wait for the revised decision of the Executive Council. Consequently, his crossing of Efficiency Bar was deferred and the appellant raised an industrial dispute to permit him to cross the Efficiency Bar and he was suspended from services and a charge sheet was issued to him for disobedience of lawful orders issued by the Head of the Department and he was found guilty of the charges after enquiry and he was compulsorily retired from the services and it was in this background that the Hon'ble High Court of Delhi held that it is one thing to question the validity of a decision of the administration, but another to disobey the orders passed by the superior and if any employee takes upon himself to pre-judge as to the legal nature of the command, it would be an act of insubordination to defy such an order and that even if it is assumed that he has a legitimate grievance, this would be no justification for him to refuse to carry out such an order and that the remedy in such circumstances is to seek 48/77 independent legal redress in so far as the question of validity of the order is concerned.

54. Ld. Counsel for the respondent has pointed out that the said ground urged before this appellate court was never taken by the appellant in the initial appeal which was pending before Sh. R.D. Aggarwal, the then Ld. ADJ and the predecessor of this court nor this ground was agitated throughout and even in the additional grounds filed before this court, the said ground was not taken and as such the respondent has taken the said ground by way of surprise. Ld. Counsel for the respondent has further argued, without prejudice to his said objection to the said ground, that in whole of the enquiry report the refusal on the part of the respondent has not been proved unequivocally and in fact the officials themselves were not clear about assigning the duty of tools and of bringing almirah, to the respondent nor it was mentioned in the order as to whether the respondent was to personally carry the tools and the almirah or not. He has further contended that the witnesses who appeared in the enquiry have shifted their stands that the respondent was to do only supervision of carrying the tools and almirah but it 49/77 was for the contractor to do the same and as such the said judgment of the Hon'ble High Court of Delhi does not come to the help of the appellant. He has further contended that it was the Enquiry Officer in the whole proceedings who was bent upon proving the charge against the respondent.

55. I have gone through the Enquiry Report carefully. The witness Sh. P.B. Mathur, who issued the said order, has answered in his cross-examination that he orally requested the respondent to take up the tools and requested to bring the almirah and tools to stores so that tools may be kept safely and when he was questioned as to why the peon was not asked to do the said work it was answered by the said witness that when a work is given to a supervisor it is his duty to do the jobs and at the best he can take the help from staff meant for such jobs. But the said witness has further answered that it was beneficial for the company that the respondent should work in any department and in any capacity.

56. From the said statement of the said witness, it is clear that it was a request made to the respondent to take tools and almirah but he was never given to understand that he was to do it as Supervisor.

50/77

57. The Enquiry Officer thereafter put the questions to the said witness in reply to which he answered that he has no enmity with Surinder Mohan and that he was acting in good faith and thereafter the Enquiry Officer asked a question to the said witness as to whether he was of the opinion that the duties assigned to the respondent by the local order would help him to have full acquaintance with the tools, job as an apprentice to which the witness replied in affirmative.

58. Thereafter the witness namely Sh. A.P. Kulshreshtha appeared who deposed that it was brought to his notice that the respondent was issued with work of issuing tools once a week and he was asked verbally and in writing to carry out and that he thought it would be helpful for a trainee to get trained and he pointed out that according to his agreement with appellant he could not be asked to do jobs that are not covered in the agreement and that he referred the matter to Administration and in the meanwhile he was asked to do the job and the Administration held its order as correct. In his cross-examination, Sh. Kulshreshtha has specifically replied that almirah and tools were not to be taken by the respondent personally and he was to supervise the carrying 51/77 which the contractor was to do. He further replied that he fully remembered and told the respondent that it was not his ultimate work but the respondent was supposed to be acquainted with his duties. Again the Enquiry Officer put a question to the said witness as to whether he felt in good faith that the work allotted by the local order dated 4.2.1969 would be beneficial to the respondent to which the witness replied in affirmative.

59. Thereafter the witness Sh. P.D. Gupta appeared who deposed that he requested the Regional Manager that he had no clerk attached to engineering and the tools to be transferred to stores and as such Sh. Mathur, who was Incharge of the stores asked Surinder Mohan to take charge of the tools and to bring them to stores from the main office and that Sh. Surinder Mohan (respondent) came to the office and there was some hesitation on his part in taking over the tools and thereafter he told the respondent that it is the Commander who has to decide the work and not the soldier.

60. The said witness was not cross-examined on behalf of the respondent although he was present but no reason was assigned for non cross-examination of the said witness and 52/77 thereafter the Enquiry Officer proceeded to put questions to the said witness and one of the question was as to whether Sh. P.D. Gupta told the respondent that since he refused to take tools and almirah in stores the duties were given to him to which he replied in negative.

61. Thereafter the statement of one Sh. Chatterjee was recorded who deposed that as far as the work of the respondent was concerned, he had no complaint and as regard the particular assignment of the stores, he had also personally explained his nature of work and had told the respondent to take over that assignment to which he opposed and the respondent disobeyed him in this case and in other instances he has obeyed. Again this witness was not cross- examined on behalf of the respondent and the Enquiry Officer proceeded to put questions to him and in answer to the question as to whether Mr. Mathur consistently insisted the respondent to bring tools and almirah to stores from R.M.'s office to which he could not answer since the same related to Sh. Mathur and he further replied that Sh. Mathur did not consult him before issuing the said order.

62. Thereafter one Sh. Mohinder Singh was produced as a 53/77 witness for the appellant in the Enquiry and who deposed that the respondent was working with the office and was asked to do the duties enunciated in the list BDA-6 dated 4.2.1969 and in the file it is there that he refused it and everything was sent to Administration. He was not cross- examined by the respondent but the Eqnuiry Officer proceeded to cross-examine him and a question was put to him as to whether he remembered that he (the witness) and the respondent were inside R.M.'s office when Mr. Gupta came to which he replied in negative. He was further put a question by the Enquiry Officer as to whether he remembered about the talks between him (the witness) and R.M to which he replied that it was all about the order of ARM and respondent's representation. A question was further put by the Enquiry Officer to the witness reproduced as follows:

Q. Do you remember that R.M having said that although the duties are not his (respondent) as a matter of fact he can give it?

To the said question, the witness replied that he never said that.

54/77

63. The above depositions, cross-examination and non cross-examination of the said witnesses and their zig-zag stand about the exact order given to the respondent and the conduct of the Enquiry Officer that instead of acting as an Umpire, he acted as a Prosecutor to bring about the guilt of the respondent somehow or the other, go to establish that it was not a case well covered under the decision of the Hon'ble High Court of Delhi in R.K. Singhal's case (Supra).

64. The manner in which the enquiry was conducted, the assistance of an employee not given to the respondent and the manner in which the Enquiry Officer put his own words into the respective mouths of the witnesses are the facts which are speaking for themselves resulting into the only conclusion that an apprentice was sacrificed from his career for no fault on his part.

65. The next contention raised by the Ld. counsel for the appellant was that mere a suit for declaration under Section 34 of the Specific Relief Act is barred as no further relief has been asked for in the present suit and as such the suit is hit by the proviso to Section 34 of the Specific Relief Act. In this connection Ld. counsel for the appellant has relied upon the 55/77 judgment of the Hon'ble Supreme Court titled Ashok Kumar Srivastav Vs. National Insurance Company Ltd. and others reported as (1998) 4 Supreme Court Cases 361 wherein the Hon'ble Supreme Court has held that maintainability of a suit cannot be adjudged from the effect which the decree may cause but it can be determined on the basis of ostensible pleadings made and the stated reliefs claimed in the plaint. He has further relied upon another judgment of the Hon'ble Supreme Court titled Executive Committee of Vaish Degree College, Shamli and others Vs. Lakshmi Narain and others reported as AIR 1976 SC 888 wherein it was held that the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as of right and that the relief has to be granted by the Court according to sound legal principles and ex debito justitiae and the Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression and the court while dealing the Delinquent 56/77 Official who was a habitual absentee held that in the peculiar circumstances of the said case, the grant of declaration and injunction was not justified. Ld. Counsel for the appellant has further cited a judgment of the Hon'ble Calcutta High Court titled Shailendra Nath Bose and others Vs. Charu Chandra Bannerji and others reported as AIR 1929 Calcutta 422 wherein it was held that although court can grant a declaration that a person is entitled to any legal character or to any right to any property but court will not grant declaration likely to be infructuous.

66. On the other hand, Ld. Counsel for the respondent has cited a judgment of the Hon'ble High Court of Delhi in RSA No. 361-D of 1962 decided on 26.4.1971 titled Prakash Vati Sawhney Vs. Life Insurance Corporation of India and Anr. wherein a mere suit for declaration without any further relief was held to be maintainable. He further cited a judgment of the Hon'ble Patna High Court in First Appeal No. 170 of 1975 decided on 17.1.1980 titled Assistant Branch Manager, Now Branch Manager, LIC of India and Ors. Vs. Shanti Swarup Sharma wherein a suit by a 57/77 permanent employee of LIC for declaration that acceptance of resignation was premature and no further relief was sought, the suit was held maintainable as the acceptance of resignation was not in accordance with law and was illegally deprived of legal character. Ld. Counsel for the respondent has further cited a judgment of the Hon'ble Supreme Court titled State of M.P Vs. Mangilal Sharma reported as AIR 1998 SC 743 wherein Hon'ble Supreme Court was dealing with a case where mere a suit for declaration against the termination of service was filed by the plaintiff and he was reinstated and then the Hon'ble Apex Court held that it was not necessary for the plaintiff to seek reliefs of arrears of salary in a suit for declaration as he may be satisfied with a mere relief for declaration that he continues to be in service and of course if he afterwards claims arrears of salary in a suit for the period prior to the relief of declaration he may face the bar of Order II Rule 2 of the CPC. It was further held that a declaratory decree merely declares the right of the Decree Holder vis-a-vis the judgment debtor and does not in terms 58/77 direct the judgment debtor to do or refrain from doing any particular act or thing. Since in the present case before the Apex Court decree does not direct reinstatement or payment of arrears of salary the executing court could not issue any process for the purpose as that would be going outside or beyond the decree and that the respondent as a Decree Holder was free to seek his remedy for arrears of salary in the suit for declaration and the executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not How directly and necessarily flows from the declaratory decree.

67. Ld. Counsel for the respondent has further relied upon a judgment of the Hon'ble High Court of Delhi titled Union of India Vs. R.P. Dhir and Ors reported as ILR 1970 Delhi 433.

68. Admittedly, in the case before me the respondent had preferred a Special Leave Petition before the Hon'ble Supreme Court and vide order dated 11.12.2006, the Hon'ble Supreme Court granted the permission to the present 59/77 respondent to file a fresh suit for damages before the appropriate forum and this permission was granted after recording the statement of the Ld. Counsel for the respondent before the Hon'ble Apex Court and it is also admitted position in this case that the respondent has already filed a suit for damages. In view of this position, the contention raised by the Ld. Counsel for the appellant that mere declaratory suit without any consequential relief is not maintainable, becomes redundant as the filing of the fresh suit for damages under the permission of the Hon'ble Apex Court is nothing but a continuation of seeking further relief which the respondent would have claimed in the present suit. Hence, the said contention of the Ld. Counsel for the appellant is hereby rejected and the said judgments cited by him do not come to the help of the appellant in view of the said suit filed by the respondent for damages against the appellant. The said case decided by the Hon'ble Supreme Court in Mangilal Sharma's case (Supra) also answered the plea mentioned by the Hon'ble High Court of Delhi in CR no.329/98 as to whether there exists any executable decree.

69. The further argument raised by the Ld. Counsel for 60/77 the appellant is that no stigma was cast upon the respondent by terminating his apprenticeship as the enquiry was to ascertain as to whether the apprenticeship agreement dated 5.5.1967 be continued or not and in this connection he has relied upon a judgment of the Hon'ble Supreme Court titled Bishan Lal Gupta Vs. The State of Haryana and others reported as AIR 1978 SC 363 wherein it was held that where a probationer's services are terminated by an innocuous order after holding summary inquiry only for determining his suitability to continue in service and giving him ample opportunity to answer whatever is alleged against him, the Supreme Court would certainly not interfere under Art.

136 on a merely technical plea that the case deserved a fuller enquiry. It must be shown that such an enquiry could serve a useful purpose. The facts must indicate that, if this fuller inquiry was held, the Govt. servant will be found to be blameless. Otherwise, further prolongation of such litigation is pointless.

61/77 It is only if patent facts disclose a serious enough infringement of law as well as indubitably damaging and undeserved consequences upon a probationer that the Court's conscience could be so moved as to induce it to interfere under Art. 136. If, however, after going into the particular facts and circumstances of a case, the court finds, that the inquiry conducted and notices given were intended only to arrive at a finding on the desirability of continuing a person in service, and more serious action was not contemplated, it means that no stigma was intended to be cast.

It may be that, in some cases, the mere form does not indicate the exact nature and result of the proceeding judged by its nature and its effects upon a probationer. To some extent the courts are bound to take into account what the incontrovertible evidence disclosed. It may conclude that, even if the reputation of a probationer was to some degree affected by what took place, yet, if those facts could not reasonably be 62/77 disputed by him, it provided a sufficient ground for terminating his services.

There is, in such cases, no injustice.

70. To appreciate the said argument, I have gone through the show cause notice given by the appellant to the respondent on 8.3.1969 Ex.DX1 wherein it is mentioned that it had come to notice that the respondent has not been carrying out the instructions given to him by his Departmental Officer and the respondent was called upon to show cause in writing within seven days from the date of receipt of the memo as to why the agreement dated 5.5.1967 executed by him should not be determined under the provision of clause VII of the agreement.

71. The respondent filed his reply dated 25.3.1969 which is Ex.DX2. In the memo dated 25.6.1969 Ex.P6, it was ordered that it was decided to constitute one man enquiry committee consisting of Sh. P. Ranganathan, Enquiry Officer to enquire into the case of alleged misconduct on the part of the respondent and he was directed to appear before the Enquiry Committee as and when called for and was also directed to produce before the Enquiry Committee any 63/77 witness/documents in his defence subject to the approval of the Enquiry Committee.

72. In pursuance of the said memo, the enquiry was conducted and findings of the enquiry were given on 26.8.1969, which is Ex.DX3, and vide memo dated 27.11.1969 Ex.P7, the respondent was informed that the appellant has decided under Clause VII of the agreement dated 5.5.1967 entered into between the parties, to terminate the respondent from the Apprenticeship and accordingly, his apprenticeship with the company was terminated with effect from afternoon of 01.12.1969 and he was further directed to reimburse the expenditure incurred by the company in connection with his training in pursuance of the agreement. Further, when the respondent asked for the report of the enquiry findings/proceedings, the appellant vide letter dated 30.12.1969 Ex.P8, informed the respondent that as he was terminated from the apprenticeship agreement under Clause VII of the agreement entered into between the parties, the question of providing him findings/proceedings of the enquiry did not arise and his request for reinstatement was also not agreed to.

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73. Ld. Counsel for the respondent has submitted that termination of the apprenticeship of the respondent was by way of stigma and he was not terminated simpliciter.

74. No doubt that memo of termination of the respondent dated 27.11.1969 does not mention about any enquiry or ground of termination nor a valid reason as mentioned in clause VII of the agreement of apprenticeship dated 5.5.1967 but the letter dated 30.12.1969 Ex.P8, whereby it was communicated to the respondent that no question arose of providing him the findings/proceedings of the enquiry, goes to establish that an enquiry was conducted. The Enquiry Report in its conclusion in one sentence has mentioned that the respondent was guilty of disobeying the lawful orders of his superiors under Section 13.1 of the Standing Orders of the appellant company. In the Standing Orders in Rule-1 where the definitions have been mentioned provides in sub clause (4) that "workman" means every person male or female, employed by the Company within the meaning of the Industrial Employment (Standing Orders) Act, and workman shall include employee and employee shall include workman. In Rule-2 of the said Standing Orders there is a classification 65/77 of workmen and workmen have been classified into six categories which mentions that "apprentice" is in category 5 and "learner" is in category 6 and thus, the classification of workmen provides that apprentice has been treated at par with the other categories of the workmen although it is further mentioned in Rule-2 that an "Apprentice" is one whose terms and conditions of service are set out in special agreement and who is designated as such. Admittedly, the termination of the respondent was under Rule 13.1 for his misconduct as per Enquiry Report and procedure for terminating a workman has been provided in Rule 15 wherein in clause (1) it is mentioned that for punishment of category 14.1 to 14.4 the Manager may take such action as may be necessary after giving an opportunity to the employee concerned to explain in writing and clause (2) mentions that inter-alia if the disciplinary action is taken for dismissal then the Manager shall first frame a charge sheet, thereafter an Enquiry Committee shall be constituted and enquiry shall be conducted in the manner as provided in Rule 15 clause (2)(b). It is further mentioned in Rule 15 sub clause 2(c) that on receipt of the findings and/or recommendations of the enquiry 66/77 committee, the Manager shall decide the punishment to be awarded and in awarding the punishment the Manager shall take into account the gravity of the misconduct, the previous record if any of the workman and any other extenuating or aggravating circumstances that may exist and the decision of the Manager regarding the punishment shall be communicated to the employee in writing and that a copy of the findings of the Enquiry Committee shall be supplied to the workman if requested and that the workman shall also be supplied with copies of statements and documents made admitted before the enquiry committee in case the punishment is one of dismissal.

75. Now the Agreement of Apprenticeship dated 5.5.1967 and the Standing Orders are to be read together because the same are making reference to each other. If the order of termination in the said circumstances would have been innocent or innocuous order, I would have understood the applicability of the said case of the Hon'ble Supreme Court in Bishan Lal Gupta's case (Supra) but in the present case it was not merely reflecting on the incapability of the respondent. It was rather a charge of his misconduct which 67/77 was served upon him and the full fledged enquiry was conducted, even the evidence has come on the record by way of deposition of the appellant's witnesses that the respondent was obeying the orders in general and his officers were having no complaints against him except in one order of removal of tools and almirah, I fail to understand as to how Ld. counsel for the appellant is relying upon the said judgment in Bishan Lal Gupta's case (Supra) in favour of the appellant wherein the petitioner being a probationer was asking for full fledged enquiry which was declined in the circumstances that he was found incapable and he was given sufficient opportunity to explain the same in writing which is not the case before me at present wherein the respondent was held guilty of misconduct. Hence, the contention that there was no stigma cast upon the respondent is not tenable in view of the said evidence and documents on the record and rather the judgment cited in Bishan Lal Gupta's case (Supra) goes against the appellant and its conduct in the present case.

76. Ld. counsel for the appellant has further argued that 68/77 even if no copy of the departmental proceedings/findings of the Enquiry Committee were supplied to the respondent, no prejudice has been caused to him and in this connection he has relied upon a judgment of the Hon'ble Supreme Court titled Managing Director, ECIL, Hyderabad, etc Vs. B. Karunakar etc reported as AIR 1994 Supreme Court 1074 wherein it was held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him and that a denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice and it was further held that report of Inquiry Officer has to be furnished to the 69/77 employee even if statutory rules are silent or against it and that this applies to employees in all establishments whether Government or non Government, public or private. It was further held by the Hon'ble Apex Court that when the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him and that to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual and the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights and that whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report has to be considered on the facts and circumstances of each 70/77 case.

77. Similarly, he has relied upon another judgment of the Hon'ble Supreme Court titled Oriental Insurance Co. Ltd. Vs. S. Balakrishnan reported as (2003) 11 Supreme Court Cases 734 wherein the facts before the Hon'ble Apex Court were to the effect that on detection of the fact that departmental enquiry instituted culminated in an order of dismissal from services and along with the dismissal order, a copy of enquiry report was furnished to the delinquent and in such circumstances, in the absence of any prejudice having been caused to the delinquent, it was held that mere non supply of enquiry report before inflicting the punishment was not fatal to the proceedings.

78. I am surprised as to how the said two judgments of the Hon'ble Supreme Court in the case of Managing Director, ECIL (Supra) and the case of Oriental Insurance Co. Ltd.(Supra) are helping the appellant in the present case. In the ECIL's case (Supra) it was commanded by the Hon'ble Supreme Court that 71/77 reinstatement with back-wages should not be mechanically ordered whereas in the suit filed by the respondent there is no prayer for his reinstatement of apprenticeship nor he has claimed any stipend or wages. It was a suit for mere declaration that his termination of apprenticeship be declared null and void and illegal. In the second case of Oriental Insurance Co. Ltd.(Supra) the Hon'ble Suprme Court was dealing with a situation where the enquiry report was furnished to the delinquent along with the dismissal order but in the present case even after terminating the apprenticeship of the respondent vide order dated 27.11.1969 Ex.P7, he was denied the supply of copies of the enquiry report subsequent thereto on 30.12.1969 vide letter Ex.P8. In these circumstances, the said two judgments rather go against the appellant in so far as the appellant conducted itself right from the issuance of show cause notice till the termination of the respondent.

79. Ld. counsel for the appellant has further raised a contention that apprentice is mere a trainee and by virtue of an Apprenticeship Agreement no relationship of employer and employee is created and as such the respondent cannot 72/77 take the benefit of his being an employee so that the other rules and regulations are to be followed for him and he has relied upon a judgment of the Hon'ble Suprme Court titled The Employees' State Insurance Corporation and Another Vs. The Tata Engineering & Locomotive Co. Ltd and Another reported as (1975) 2 Supreme Court Cases 835.

80. I have carefully gone through the said judgment and in para 11 of the judgment it was held by the Hon'ble Supreme Court that from the terms of the agreement it is clear that apprentices are mere trainees for a particular period for a distinct purpose and the employer is not bound to employ them in their works after the period of training is over. During the apprenticeship they cannot be said to be employed in the work of the company or in connection with the work of the company and that it would have been so if they were employed in a regular way by the company and that the purpose of the engagement under the particular scheme is only to offer training under 73/77 certain terms and conditions and that the apprentices are not entitled to additional remuneration or allowances to which regular employees are.

81. There is no dispute before me about the said premises of law laid down by the Hon'ble Supreme Court in the said case. Moreover, the Hon'ble Apex Court was dealing with Section 2(s) of the Industrial Disputes Act, 1947 which defines the "workman". But the other contentions raised by the Ld. counsel for the appellant were that the respondent has abandoned his proceedings before the Conciliation Officer under the Industrial Disputes Act, 1947 and in the next breath the appellant is citing the said judgment in its favour. Even otherwise, it is mentioned in the Apprenticeship Act, 1961 in Section 22 that it shall not be obligatory on the part of the employer to offer an employment to any apprentice who has completed the period of his apprenticeship training in his establishment nor shall it be obligatory on the part of the apprentice to accept an employment under the employer. But for the purposes of disagreements or dispute between an employer and an apprentice arising out of the contract of 74/77 apprenticeship, he has been treated at par with other employees in all matters of conduct and discipline and Section 17 of the said Act provides that the apprentice shall be governed by the rules and regulations applicable to the employees of the corresponding category in the establishment in which the apprentice is undergoing training. The Apprenticeship Agreement dated 5.5.1967 refers to the breach of any of the terms and conditions of the agreement or of any of the rules and regulations of the company and the rules by way of Standing Orders in Rule 2 has classified the apprentice as a workman. The said judgment of the Hon'ble Supreme Court in the ECIL's case (Supra) was laying down the proposition that by virtue of his apprenticeship agreement he cannot claim his employment as a matter of right or claim his status as an employee but the Hon'ble Supreme Court was nowhere dealing with the situation where the work and conduct of an apprentice was in question or where a charge of misconduct has been levelled against the apprentice as in the case before me. Hence, the said contention of the Ld. counsel for the appellant is hereby rejected.

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82. Ld. counsel for the appellant has further contended that termination of the Apprenticeship Agreement is not a punishment and on the other hand, Ld. Counsel for the respondent has vehemently opposed the said argument by saying that it was not only a punishment but the respondent was terminated which was by way of stigma.

83. In order to appreciate the said contention, I have gone through clause VII of the Apprenticeship Agreement dated 5.5.1967 once again and it is provided in the clause VII of the said agreement that the appellant company shall during the period of Apprenticeship had a right and power (a) to extend the period or term of apprenticeship at the same rate of stipend, or (b) to cancel the agreement, and/or (c) to suspend or dismiss the apprentice for any valid reason such as unsatisfactory work, conduct or progress or breach on the part of the Apprentice of any of the terms and conditions of the agreement or of any of the rules and regulations of the appellant company, for the time being in force. I have also gone through the Standing Orders of the appellant company which defines misconduct in Rule 13 and as many as 37 acts or conduct have been defined as misconduct which were 76/77 inclusive in nature and the said definition of the misconduct was not exhaustive. Rule 14 of the Standing Orders provides for punishment which includes censure/reprimand/warning and an employee is liable to be dismissed if he has been censured/reprimanded or warned three times in a year. Further punishments are fine, suspension, postponement of annual increment, stoppage of annual increment, reduction in the grade or reversion or demotion to a lower grade and dismissal for misconduct without notice or any payment or compensation in lieu of notice whatsoever. Rule 15 provides procedure for punishment and the enquiry to be conducted. In view of the said terms and conditions of the agreement and the Standing Orders, the termination coupled with the detailed enquiry and holding the respondent guilty of misconduct was certainly by way of punishment and by no stretch of imagination it can be termed as discharge simpliciter or not amounting to any punishment. On the other hand, I am of the considered opinion that the appellant is guilty of killing a butterfly with a hammer throw as the punishment was disproportionate to the alleged guilt of the respondent even if we take the same as proved on record. 77/77 Instead of terminating the apprenticeship for an alleged one incident of disobedience the termination of his apprenticeship and that too in an extended period was certainly harsh. In the result, I find no merits in the appeal and the same is hereby dismissed. Let an appellate decree be prepared accordingly. Since the Trial Court Record was reconstructed, a copy of this order be placed on the Trial Court Record and be sent forthwith to the successor court of the Ld. Trial Court and the miscellaneous record of the other appeals and applications filed by the appellant and summoned from the Record Room, be sent back to the Record Room and whatever documents were filed at the appellate stage shall remain with the appeal file and the same be consigned to the Record Room separately.

ANNOUNCED IN THE OPEN COURT ON 25.07.2009 (RAKESH TEWARI) ADJ-19: CENTRAL DISTRICT DELHI.

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Delhi District Court

M/S Indian Telephone Industries ... vs Sh. Surinder Mohan Singh on 25 July, 2009