Haribhau S/O. Gaman Waghchaure vs State Of Maharashtra And Anr.
2001 Latest Caselaw 946 Bom

JUDGMENT

R.M. Lodha, J.

Heard Mr. Shrichetan Agarwal, the learned counsel for the appellant and Mr. S.R. Singh, the learned A.G.P. for respondents 1 and 2.

2. This Letters Patent Appeal is directed against the order passed by the learned single Judge dated July 23, 1999 whereby the learned single Judge upheld the order passed by the Labour Court rejecting the reference on the ground that notice of demand was made by the appellant herein after ten years of his termination.

3. The learned single Judge in the impugned order observed that the delay of ten years in raising the demand from the date of termination cannot be ignored.

4. The learned counsel for the appellant relied upon the judgment of Supreme Court in Ajaib Singh v. Sirhind Co-op. Marketing cum-Processing Service Society Ltd. & Anr. which was also cited before the learned single Judge. In Ajaib Singh's case the Apex Court in paragraphs 10 and 11 of the report held thus at pp. 1264 & 1265 of LLJ:

"10. It follows, therefore, that the provisions of Art. 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 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 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 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-management on the full Bench judgment of the Punjab and Haryana High Court in Ram Chander Morya v. State of Haryana 1999 (1) SCT 141 is also of no help to him. In that case the High Court nowhere held that the provisions of Art. 137 of the Limitation Act were applicable in the proceedings under the Act. The Court specifically held neither any limitation has been provided nor any guidelines to determine as to what shall be the period of limitation in such cases." However, it went on further to say that "reasonable time in the cases of labour for demand of reference or dispute by appropriate Government to Labour Tribunal will be five years after 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 justified in prescribing the limitation for getting the reference made or an application under Section 37-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 if fit not to prescribe any period. The Courts admittedly interpret law and do not make laws. Personal views of the Judges presiding the Court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation intentionally 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 applicability of the period of limitation for the purposes of invoking the jurisdiction of the Courts/Boards and Tribunal under the Act.

11. In the instant case the respondent-management is not shown to have taken any plea regarding delay as is evident from the issues framed by the Labour Court. The only plea raised in defence was that the Labour Court had no jurisdiction to adjudicate the reference and the termination of the services of the workman was justified. Had this plea been raised, the workman would have been in a position to show the circumstances preventing him in approaching the Court at an earlier stage or even to satisfy the Court that such a plea was not sustainable after the reference was made by the Government. The learned Judges of the High Court, therefore, were not justified in holding that the workman had not given any explanation as to why the demand notice had been issued after a long period. The findings of facts returned by the High Court in writ proceedings, even without pleadings were, therefore, unjustified. The High Court was also not justified in holding that the Courts were bound to render 'an even handed justice by keeping balance between the two different parties. Such an approach totally ignores the aims and objects and the social object sought to be achieved by the Act. Even after noticing that "it is true that a fight between the workman and the management is not a just between equals, "the Court was not justified to make them equals while returning the findings which it allowed to prevail, would result in frustration of the purpose of the enactment. The workman appears to be justified in complaining that in the absence of any plea on behalf of the management and any evidence, regarding delay, he could not be deprived of the benefits under the Act merely on technicalities of law. The High Court appears to have substituted its opinion for the opinion of the Labour Court which was not permissible in proceedings under Art. 226/227 of the Constitution."

5. The Apex Court in the aforesaid judgment has held that the Limitation Act does not apply to the proceedings under the Industrial Disputes Act and the relief cannot be denied to the workman merely on the ground of delay. The Apex Court further observed that 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 mere hypothetical defence. It has further been observed by the Apex Court that no reference to the Labour Court can be generally questioned on the ground of delay alone. In view of the aforesaid judgment of the Supreme Court in Ajaib Singh 's case, the argument of the learned counsel for the appellant that the Labour Court was not justified in rejecting the reference oh the ground of delay, and the learned single Judge was also not justified in upholding the said judgment cannot be said to be without substance and, therefore, initially we thought of remanding the matter back to the Labour Court. However, the learned A.G.P. cited before us the judgment of the Apex Court in State of Gujarat and Ors. v. Pratamsingh Narsinh Parmar 2001-I-LLJ-1118, wherein the Apex Court observed that ordinarily a department of the Government cannot be held to be an industry and rather it is a part of the sovereign function. In paragraph 5 of the report, the Apex Court held thus at pp. 1119 & 1120 of LLJ:

"5. If a dispute arises as to whether a particular establishment or part of it wherein an appointment has been made is an industry or not, it would be for the person concerned who claims the same to be an industry, to give positive facts for coming to the conclusion that it constitutes "an industry". Ordinarily, a Department of the Government cannot be held to be an industry and rather it is a part of the soverign function. To find out whether the respondent in the writ petition had made any assertion that with regard to the duty which he was discharging and with regard to the activities of the organisation where he had been recruited, we find that there has not been an iota of assertion to that effect though, no doubt, it has been contended that the order of dismissal is vitiated for non-compliance of Section 25-F of the Act. The State in its counter-affidavit, on the other hand, refuted the assertion of the respondent in the writ petition and took the positive stand that the Forest Department cannot be held to be an industry so that the provisions of Section 25-F of the Act cannot have any application. In the absence of any assertion by the petitioner in the writ petition indicating the nature of duty discharged by the petitioner as well as the job of the establishment where he had been recruited, the High Court wholly erred in law in applying the principle enunciated in the judgment of this Court in Jagannath Maruti Kondhare (supra) to hold that the Forest Department could be held to be "an industry".

6. In view of the aforesaid decision of the Apex Court and there being no assertion in the complaint indicating the Forest Department of the State of Maharashtra as industry, we have no hesitation in holding that the respondents are not industry and, therefore, no purpose would be served in remanding the matter back to the Labour Court.

7. Letters Patent Appeal is accordingly dismissed. No costs.