- (1.) BY means of this writ petition, the petitioner has prayed for writ of Certiorari quashing the impugned order dated 11-03-2005, passed by Respondent No. 3 contained as Annexure No. 3 to the writ petition.
(2.) BRIEF facts of the case giving rise to this writ petition are that the peti tioner was working as Beldar on mus ter roll since 03-01-1992 till 31-12-1992 regularly. On 01-01-1993, he was denied from doing any work and his service was illegally retrenched without following the provisions of Section 6-N of U. P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act ). On 06-12-2004, the petitioner made an application to the Conciliation Officer under Section 2-A of the Act along with the application for condonation of de lay and the case was registered as C. R/ C. D. 3. Case No. 64 of 2004. The Conciliation Officer on receipt of the appli cation issued notices to both the parties to file the objections/ written state ments. Respondent No. 4 filed its ob jection stating therein that the petitioner has worked with the employer i. e. respondent No. 4 for some time as the Model Study was to be completed for a canal that was financed by the World Bank, within stipulated time, after do ing the work for some time the petitioner/workman has stopped coming to the work on his own and matter is barred by delay. Thereafter, the Re spondent No. 3 after hearing both the parties passed the impugned order and rejected the application of the petitioner on the ground of delay. Feeling ag grieved, the petitioner has come up in the writ petition. I have heard learned counsel for the parties and perused the entire evi dence on record. The question of delay in raising the dispute has to be adjudicated by the Labour Court and not by the Concilia tion Officer. Apart from this, the matter of delay does not bar the jurisdic tion of Labour Court and provisions of Article 137 of the Indian Limitation Act are not applicable in cases of Industrial Disputes Act as there is no specific time provided in the Act for raising the dis pute. Therefore, the impugned order cannot be sustained in the eye of law.
(3.) THE Apex Court in the case Ajalb Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and another [1999 (82) FLR 137] held that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it can not be denied to the workman merely on the ground of delay. The plea of delay is raised by the employer is re quired to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribu nal, labour Court or board, dealing with the case, can appropriately mould the relief by declining to grant back wages to the workman till the date, he raised the demand regarding his illegal retrenchment/termination or dismissal. The court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. On account of the admitted de lay, the labour court ought to have ap propriately moulded the relief by deny ing the appellant-workman some part of the back wages. The Apex Court has observed as under: "it follows, therefore, that the provi sions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypo thetical defence. No reference to the labour court can be generally ques tioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the tribunal, labour Court or board, dealing with - the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages. Reliance of the learned counsel for the respondent-manage ment on the full bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana, is also of no help to him. In that case the High Court nowhere held that the provisions of Article 137 of the Limitation Act were ap plicable in the proceedings under the Act. The Court specifically held "nei ther any limitation has been pro vided nor any guidelines to determine as to what shall be the period of limitation in such cases". How ever, it went on further to say that "reasonable time in the cases of la bour for demand of reference or dis pute by appropriate Government to labour tribunal will be five years af ter which the Government can refuse to make a reference on the ground of delay and laches if there is no explanation to the delay". We are of the opinion that the Punjab and Haryana High Court was not justi fied in prescribing the limitation for getting the reference made or an application under Section 3/-C of the Act to be adjudicated. It is not the function of the Court to prescribe the limitation where the Legislature in its wisdom had thought it fit not to prescribe any period. The courts admittedly interpret law and do not make laws. Personal view of the Judges presiding the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation inten tionally left over by the Legislature. The judgment of the Full Bench of the Punjab and Haryana High Court has completely ignored the object of the Act and various pronouncements of this Court as noted hereinabove and thus is not a good law on the point of the applicability of the pe riod of limitation for the purposes of invoking the jurisdiction of the courts/boards and tribunals under the Act. ";