Unreasonable delay in raising an industrial dispute and the principle that a party cannot accept a part of an order and reject the other.

JUDGMENT

1. Leave granted.

2. The respondent who had been appointed as a Booking Clerk by the appellant was suspended during the pendency of the disciplinary proceedings initiated by the appellant against him. After the service of the charge-sheet the service of the respondent with the appellant was terminated on 15-3-1973. The respondent filed an appeal before the Deputy General Manager of the appellant. The appellate authority stated that the respondent herein had been careless in his duty but that such carelessness did not warrant an order of dismissal. Accordingly the order of dismissal was converted to one of removal and a fresh chance was given to the respondent to work with the appellant. It was, however, clarified that the respondent would not get the benefit of his earlier service with the appellant. On the basis of this order the respondent joined service with the appellant.

3. Thirteen years later, on 15-6-1986 the respondent raised an industrial dispute challenging the order of the Deputy General Manager whereby he had been permitted to be re-employed with the appellant.

4. The Labour Court set down the matter for ex parte hearing on 8-1-1987 on the ground that the appellant had not filed a written statement despite repeated opportunities. The application made by the appellant for recalling the order dated 8-1-1987 was rejected. On 21-1-1989 an ex parte award was passed by the Labour Court setting aside the order of the Deputy General Manager, insofar as it directed that the respondent would not be entitled to the benefit of his earlier service with the appellant. Being aggrieved with this award the appellant filed a writ petition. The writ petition was ultimately rejected by the High Court. At the time of issuance of notice on the writ petition, the High Court stayed the operation of the award dated 21-1-1989 subject to the appellant's depositing half the amount due under the award, which the respondent was entitled to withdraw without furnishing any security. In case of default, the stay order was to stand automatically discharged. Pursuant to the interim order, the appellant had deposited 50% of the amount calculated on the basis of the award and the respondent has withdrawn the same. The respondent has since retired from service upon superannuation.

5. Before us, the appellant has submitted that the Labour Court should not have entertained the dispute at all, particularly in view of the gross delay of 13 years. Reliance has been placed on the decision of this Court in Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC 455 and the learned counsel submitted that the High Court had erred in not setting aside the award of the Labour Court since the Labour Court had completely overlooked the fact that the respondent had taken the benefit of the very order which was sought to be impugned before it. The decision in Prakash Chandra Sahu v. State Transport Authority, (1997) 9 SCC 32 has also been brought to our attention in this connection.

6. Learned counsel appearing on behalf of the respondent has submitted that the delay by itself was not sufficient to merit dismissal of the industrial dispute. It is submitted that representations had been made before the authorities which had not been considered. It is further submitted that the appellant had not deliberately chosen to file a written statement to controvert the claim of the respondent before the Labour Court. It is finally submitted that the amount involved was very meagre and that this Court should not in exercise of its discretion under Article 136 of the Constitution, interfere with the impugned order of the High Court.

7. We are of the view that in the facts and circumstances of the case, the High Court erred in not setting aside the award of the Labour Court. Apart from the unacceptable manner in which the appellant was denied the opportunity of participating in the proceedings, including being debarred from cross-examining the respondent, the Labour Court shoul