1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.5513/2005. : : General Manager, North Western Railway, Head Quarter Office, Jaipur & Ors. Vs. Central Industrial Tribunal, Jaipur & Anr. : : Date of Order 27.1.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Alok Garg for the petitioner. Mr. V.K.Mathur for the respondent-workmen. Heard learned counsel for the parties. This writ petition has been filed challenging the award passed by the Central Industrial Tribunal, Jaipur dated 28.1.2005 whereby reference has been answered on the question of validity of termination of 18 workmen by the management of the petitioner. This Court while admitting this writ petition vide order dated 2.12.2005, stayed the operation of impugned award. Subsequently, the respondent-workman filed an application under Section 17-B of the Industrial Disputes Act, 1947 which came up before the Court on 17.7.2007 on which date, learned counsel for the parties agreed that main matter 2 itself be heard for final hearing. Today, this case is listed for final disposal. Shri Alok Garg, learned counsel for the petitioner has confined only to one argument that in spite of petitioner having raised a plea in reply to the statement of claim that the dispute was raised in the year 1984-85 when the respondent-workman was allegedly removed from service after expiry of more than seven years. Learned counsel in support of his argument relied on the judgment of Supreme Court in the case of Director, Food & Supplies, Punjab & Anr. Vs. Gurmeet Singh : 2007 (5) SCC, 727 and argued that Supreme Court in the aforesaid case set aside the judgment of Punjab and Haryana High Court upholding award of the Labour Court solely on the ground that the Labour Court did not decide the question of delay raised before it and, therefore, remanded the matter to the Labour Court to decide it afresh. Shri V.K.Mathur, learned counsel for the respondent-workman cited the judgment of Supreme Court in Ajaib Singh Vs. Sirhind Cooperative Marketing cum Processing Service Society Ltd. & Anr. : AIR 1999 SC, 1351 and argued that Supreme Court in that case held that even where there is a delay, the Court can mould the relief and in 3 doing so, deny the back wages. It was argued that even if the Industrial Tribunal did not record findings on that point this could not be a ground for remand. Upon hearing the learned counsel for the parties and perusing the cited judgments as also the award passed by the Tribunal, I find that Industrial Tribunal in para 4 of its award, has noticed the objection of the petitioner that there was delay of seven years in raising the dispute, but it has not rendered any finding on that aspect. In fact, perusal of the award indicates that alleged date of retrenchment in most of the cases was 5.7.1986 and the notification making reference was issued on 12.3.1999. There was thus a huge gap between the date of retrenchment and in making reference. Question whether this delay would completely disentitle the respondent from the reliefs as claimed or whether the relief of back wages could be moulded, which is the sole submission of the respondent-workman, would have to be first determined by the Tribunal to arrive at the conclusion as to how much was the delay. The Supreme Court in Ajaib Singh (supra) of course directed that even where there is a delay, the Court can mould the relief and in doing so, deny the back wages. But the later judgment on which reliance has been placed by the petitioner is directly applicable in the 4 facts of this case. In that case, award of the Tribunal which was confirmed by the High Court was set aside by the Supreme Court solely on the ground that there was no finding whatsoever on the plea of delay of nine years in making reference to the Tribunal. Therefore, in my considered view, the contention raised by learned counsel for the petitioner deserves to be upheld and it is accordingly accepted. In the result, this writ petition is allowed. The award passed by the Industrial Tribunal dated 28.1.2005 is set aside. The matter is remanded back to the Industrial Tribunal for its adjudication afresh in accordance with law. Both the parties are at liberty to raise their respective arguments before the Tribunal on the question of delay including moulding or otherwise, of the relief. There shall be no order as to costs. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.5.