( 1 ) THIS is a petition under Article 227 of the Constitution of India though styled as one under Articles 226 and 227 of the Constitution of India.

( 2 ) THE petitioner herein is a registered trade union, which seeks to espouse the cause of one of its workmen. The facts and dates relevant to the present controversy are not in dispute. The workman was engaged as a casual labourer by the employer on 1st January 1986, and as per the assertions of the workman, he was terminated with effected from 31st August 1988. Thereafter the workman remained silent and complacent until 15th April 1998 when he first filed a complaint to the Conciliation Officer. The Failure Report dated 29th June 1998 was filed by the Assistant Labour Commissioner (Adipur-Kutch), which was received by the relevant Ministry on 7th July 1998. By an order passed by a concerned officer under the provisions of section 10 (1) of the Industrial Disputes Act, it was found that the Ministry does not consider the dispute fit for making a reference. It is pertinent to note that this order which is the subject matter of challenge in the present petition is not an order on merits of the dispute, and does not refuse to make a reference on any grounds material to or arising from the dispute, but the same has been refused only on the ground that the dispute has been raised after a lapse of 10 years without justifiable reason for the long delay.

( 3 ) IT is also pertinent to note on the factual aspects of the matter that this delay of 10 years is firstly admitted. Secondly, this is a delay between the date of alleged termination and the first complaint filed by the workman before the Conciliation Officer in this regard. However, the most significant factor is that no justification whatsoever has been given or even attempted to be given by the workman for this delay. This justification is not even attempted either before the Conciliation Officer or even in the present petition.

( 4 ) THE crux of the matter, therefore, in the present petition is as to whether a reference can be refused to be made only on the ground of delay dehors the merits of the dispute. Learned counsel for the petitioner has sought to rely upon a recent decision of the Supreme Court in the case of Ajaib Singh Vs. Sirhind Coop. Marketing-cum-Processing Service Society Ltd. (AIR 1999 SC 1351 ). Learned counsel for the petitioner seeks to place particular emphasis on the observations made in para 10 of the said decision. The relevant observations, however, only emphasise that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 are not applicable to 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 hypothetical defence. No reference to the Labour Court can be generally questioned on the ground of delay alone (emphasis supplied ). Further observations in the same paragraph are to the effect that 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 backwages 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 backwages instead of full backwages.

( 5 ) THE aforesaid observations must be read in the light of the context of the controversy before the Supreme court, and in the light of the issues which the Supreme Court was required to consider in the said case. It is material to note that the Supreme Court has in the case of C. I. T. Vs. Sun Engg. Works (1992 (4) SCC 363-Para 39), following its earlier decision in the case of Madhavrao Scindia (1971 (1) SCC 85), held that the decisions of the Supreme Court must be read in the co