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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

SPECIAL     LEAVE     PETITION     (CIVIL)     NO.7225     OF     2008   

MR. RAM SHIROMAN MISHRA …        PETITIONER

Vs.

MR. VISHWANATH PANDEY …        RESPONDENT

ORDER

Delay condoned.  

2. The petitioner has challenged order dated 27/4/2007  

passed by the Delhi High Court in Writ Petition (Civil)  

No.3042 of 2007.  The case of the petitioner, in short, is  

that the respondent has taken advantage of the kindness  

shown by him by allowing him to stay in his house free of  

cost from 1988 to 1991.  According to the petitioner, when  

he requested the respondent to vacate his house and, in fact  

got his house vacated, the respondent was annoyed.  He,  

therefore, raised a  dispute to the Union  falsely alleging that

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he was working with Messrs Ram Saroman Mishra Jali  

Factory of the petitioner as a machine-man since 1986 and  

his last drawn wages were Rs.1,100/- per month.  He  

further alleged that his services were terminated illegally in  

violation of Section 25F of the Industrial Disputes Act (for  

short, “the ID Act”) on 31/12/1991 and his wages for the  

months of 1/10/1991 to 31/12/1991 were also not paid.  He  

claimed that he was unemployed since the date of his  

termination and he is entitled to full back wages and  

continuity in service.   According to the petitioner he does  

not own any jali factory as alleged and therefore there is no  

question of employing the petitioner as a machine-man.  

3. The Secretary (Labour), Delhi Administration, Delhi,  

referred the said dispute to the Labour Court, Tis Hazari,  

Delhi.  The terms of reference were as under :

“Whether the services of Shri Vishwa Nath Pandey  have been terminated illegally and/or unjustifiably  by the management and, if so, to what relief is he  entitled and what directions are necessary in this  respect?”

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4. Before the Labour Court, the respondent filed an  

affidavit.  It is the case of the petitioner that he was not  

served with the notice and consequently, he did not appear  

before the Labour Court. The award of the Labour Court  

however notes that the management was duly served of the  

claim but no written statement was filed by it and,  

therefore, it was proceeded ex-parte.  The Labour Court  

observed that the material on record clearly showed that the  

respondent had served the management for more than one  

year when his services were terminated on 31/12/1991  

without any valid reason and in violation of Section 2(OO) of  

the ID Act.  The Labour Court further observed that since  

there was no compliance of Section 25F of the ID Act, the  

retrenchment was illegal.  The Labour Court ordered  

reinstatement of the respondent with continuity in service  

and full back-wages calculated at the last drawn wages  

which were Rs.1,100/- per month.  

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5. According to the petitioner, he was unaware of this  

award since notice was not served on him.  He came to  

know about this on 19/3/2003 when some person came to  

his house and informed him that he has to appear on  

20/3/2003  at 10.00 a.m. in the Implementation Cell.  The  

petitioner thereafter moved an application for setting aside  

the ex-parte award before the Labour Court.  The Labour  

Court vide its order dated 5/3/2005 rejected the application  

of the petitioner.  The Labour Court observed that the  

application was filed by the petitioner after publication of the  

award and after issuance of the recovery certificate i.e. after  

the award had become enforceable under the provisions of  

the ID Act.   The Labour Court relied upon the judgment of  

this court in Sangham     Tape     Co.      v.      Hans     Raj,     (2005)     9    

SCC     331   to come to a conclusion that after the award is  

published and recovery certificate is issued, the Industrial  

Tribunal and/or the Labour Court becomes functus officio.  

The Labour Court, therefore, did not have any jurisdiction to  

entertain the application for setting aside the award.  

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6. The petitioner challenged the said order before the  

Delhi High Court.   The Delhi High Court dismissed the writ  

petition filed by the petitioner.  The High Court observed  

that no explanation was given by the petitioner as to why no  

steps were taken to challenge the award expeditiously.  The  

judgment of the High Court indicates that the High Court  

was not satisfied with the explanation given by the  

petitioner and the writ petition was rejected on the ground  

of delay and laches.  Being aggrieved by the said judgment,  

the petitioner has preferred this special leave petition.   

7.  On 20/7/2012 we heard learned counsel for the  

petitioner and reserved the judgment.  

8.  The High Court has not referred to the judgment of  

this court in Sangham     Tape     Co.    The High Court has simply  

dealt with the aspect of delay. But, since it has confirmed  

the Labour Court’s view which is based on Sangham     Tape    

Co., it was necessary for us to examine whether the reliance  

placed by the Labour Court on the said judgment is apt.  

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While examining this, we noticed that on the question  

whether the Industrial Tribunal/Labour Court becomes  

functus officio after 30 days of the  

pronouncement/publication of the award and it loses all  

powers to recall an ex-parte award on an application made  

by the aggrieved party after 30 days from the date of  

pronouncement/publication of the award, two Division Bench  

decisions have taken apparently conflicting view. In  

Sangam     Tape      Co  ., a two Judges Bench held and observed  

that an application for recall of an ex-parte award may be  

entertained by the Industrial Tribunal/Labour Court only in  

case it is filed before the expiry of 30 days from the date of  

pronouncement/publication of award. A contrary view was  

taken  by a two Judges Bench to which one of us (Aftab  

Alam, J.) was a party, in Radhakrishna     Mani     Tripathi   v.  

L.     H.     Patel  , (2009) 2 SCC 81.  In both  cases, the court  

referred to and relied upon the earlier decisions in  

Grindlays     Bank     Ltd.   v. Central     Government     Industrial    

Tribunal, (1980) Supp. SCC 420 and Anil     Sood   v.  

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Presiding     Officer,     Labour     Court     II  , (2001) 10 SCC 534,  

but read and interpreted those two decisions completely  

differently.  Noticing this conflict, a Division Bench in    M/S.    

Haryana     Suraj     Malting     Ltd.     V.        Phool     Chand      (SLP (C)  

No. 6091/2010, to which one of us (Aftab Alam, J.) was a  

party has referred the said issue to a larger Bench.  Since  

the same issue is involved in this case, it is not possible for  

us to dispose of this matter.  We will have to await the  

decision of the larger Bench. In the circumstances, we grant  

leave.  

9. Office Report dated 26/4/2012 indicates that though  

show cause notice was issued to the respondent, neither AD  

card nor unserved cover was received back by the office  

and, therefore, the petitioner filed an application for leave to  

serve the respondent by publication.  The said application  

was granted.  The respondent has been served through  

publication and to that effect, the petitioner has filed an  

affidavit with proof of publication.  Though served, the  

respondent has neither appeared in person nor has he  

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appeared through a counsel.  In the circumstances, the  

execution of award bearing No.ID-375/1992 titled as  

“Management of M/s. Sri Ram Shiromani Mishra Jali Factory,  

Plot No.14A, Gali No.7, Cement Ghati Road, Anand Road  

Industrial Area, New Delhi  versus  Sh. Vishwa Nath Pandey,  

C/o. Jan Jagran Morcha, CS No.9/95, Rakhi Market, Jakhira,  

New Delhi” dated 5/6/1992 passed by the Labour Court, Tis  

Hazari, Delhi, is stayed.  Registry is directed to call for the  

record from the Labour Court, Tis Hazari, Delhi.   Registry is  

further directed to tag this matter  to Special Leave Petition  

(c) No. 6091/2010.  

……………………………………………..J. (AFTAB ALAM)

……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI. AUGUST 08, 2012.

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