IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1175 OF 2008 Malabar Hill Citizen’s Forum and Ors. .. Petitioners Versus Uday Anant Gurav and Ors. .. Respondents Mr. C.V.Singh, Sr Advocate with Mr. I.A.Engineer and Mr.M.S. Bharadwaj for the petitioners. Mr. S.I. Kazi alongwith Mr. V.M.Parkar for the respondents. CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. DATE : 10th June, 2008 DATE : 10th June, 2008 DATE : 10th June, 2008 P.C. P.C. P.C. 1. Heard Mr.Singh, learned senior counsel appearing for the original respondent in complaint (ULP) No.409 of 2005 and petitioner in this petition. I have also heard Mr.Kazi for the respondent-original complainant. 2. With their able assistance I have perused the impugned order below Exhibit C-24 dated 11th April, 2008. An application has been filed copy of which is at Exhibit G by the present petitioners praying that the issues which are framed by the court below include certain issues pertaining to the jurisdiction of the Industrial Court to entertain and try the complaint and they go to the root of the case. The application was that in order to avoid lengthy trial the issue :2: pertaining to jurisdiction may be framed as preliminary issue and tried as such. 3. That application was opposed by the respondent-original complainant. Apart from contending that the application is vague and there is no justification in making the same, additionally, it was contended that matter is fixed for recording of evidence and therefore instead of piecemeal adjudication the Court must proceed with the trial. 4. That application was argued and the Court below has observed that when a reply was filed to the interim relief application there was no request made to try any issue as preliminary issue. The interim relief was refused. The issues were framed and it was decided that the trial will proceed. At the same time the Court below was aware of the issues. It has referred to them in the impugned order. However, the apprehension of Mr. Singh is that in paragraph 3 of impugned order the learned Judge has opined that this is not a case where employer-employee relationship is totally denied. The rival cases have been set out and the Court below has observed that matter is ripe for final hearing. When it is fixed for evidence, then, picking up five issues and trying them as preliminary issues would not be proper. :3: That is how the application is rejected but Mr. Singh’s contention is that this course of action is contrary to the settled principle that the Court exercising jurisdiction under MRTU and PULP Act must have the authority to decide the complaint. The question of its authority goes to the root of the matter. Ultimately, the trial on merits cannot be held and would be a futile exercise if the preliminary issue of jurisdiction is answered in favour of the present petitioner. 5. After this matter was argued for sometime, in my view entering into any larger controversy at this stage would be an academic exercise. The Court below has not decided the issues. The trial is fixed by the Court below. It has given directions with regard to recording of evidence. Ultimately, several issues are framed by the Court below but finally it is for it to determine as to whether it is obliged to render findings on all issues. It may be that the Court below comes to a conclusion that it has no jurisdiction. Then, obviously, the other issues would not survive and any findings thereon would be academic. However, it is for the Court to decide whether it should proceed to record findings on all issues. It is the complainant who will step into the box and will try and make the case in the complaint. The respondents can always cross-examine the :4: witness/witnesses on all points and it is for them to decide the line of cross-examination. The entire material that would come before the Court below would enable it to render finding on both issues namely jurisdiction and merits. None had disputed that in this case the issue of jurisdiction is a mixed question. In such circumstances, no prejudice is going to be caused by the order passed by the Court below. Clarifying that the impugned order is interlocutory so also that it does not conclude any matters and more so on jurisdiction and maintainability, the present petition is disposed of. Needless to state that it would be open for the respondents to urge that if the Court below comes to conclusion that it has no jurisdiction, then, it should not proceed to render any findings on the merits of the matter. Equally, the complainant can argue otherwise. However, the Court below must decide as to whether it is necessary to render any findings on merits, if it concludes and holds that it has no jurisdiction to entertain and try the complaint. The converse is too obvious to be stated. (S.C.Dharmadhikari, J)