1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5356 OF 2008 M/s. Radhika Designers Pvt. Ltd. ..Petitioner. Vs. Ravindra Sakharam Ambekar ..Respondent. .... Mr. Dilip N. Mandavia for the Petitioner. None for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 11th November, 2008. P.C. : 1. The Respondent instituted a complaint of unfair labour practices before the Industrial Court under items 5, 9 and 10 read with Item 1 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The case of the workman was that he was engaged for making jewellery; that on 1st July 2004 he had proceeded on leave and that when he reported for work on 10th July, 2004 he was asked by the employer “not to come for duty from that day”. According to the workman though letters were addressed to the employer to allow him to report for duty, the employer had neither complied with the request nor had he responded to the letters. The 2 workman set up the case that the contract of employment had not come to an end and there was a deemed agreement to provide work and wages. In the alternative, it was contended that in the event it was held that there was an oral termination, it was in breach of the mandatory provisions of industrial law and was therefore illegal. 2. The Industrial Court allowed the complaint on 23rd September, 2005 by issuing a declaration that there was an unfair labour practice under items 9 and 10 of Schedule IV. The employer moved an application on 25th May, 2006 for setting aside the order of the Industrial Court on the ground that it had been passed without hearing him. The case of the employer was that the papers had been entrusted to an advocate who had failed to duly prosecute the proceedings. The application for restoration was dismissed by the impugned order dated 8th February, 2008. On behalf of the Petitioner, it has been urged that under Sub section 2 of Section 31, when an order is passed ex parte under sub section (1), the aggrieved party is allowed to make an application within thirty days of the receipt of the order for setting aside the 3 order and if the Court is satisfied there was sufficient cause for the non-appearance of the aggrieved party, it may set aside the order so made and appoint a date for proceeding with the matter. In this case, it was submitted that a reading of the complaint would ex facie demonstrate that the substance of the grievance of the workman was in regard to the oral termination of his services by the employer and the complaint in essence was under Item 1 of Schedule IV. In the circumstances, it was urged that the Industrial Court had no jurisdiction to entertain the complaint since under Section 7 of the Act the exclusive jurisdiction to entertain a complaint under Item 1 of Schedule IV vests in the Labour Court. In any event it was submitted that this was by itself a circumstance which would go to the root of the question as to whether sufficient cause has been shown for the restoration of the complaint. 3. Prima facie, at this stage, for resolving the issue as to whether sufficient cause has been shown for setting aside the ex parte order passed in the complaint, it is of some significance that the question as to whether the Industrial Court would have jurisdiction to entertain the complaint of unfair labour practices is one that would have to be determined upon the complaint. This is 4 not the appropriate or proper stage for the Court to render a final determination on that question. It would suffice to note that the contention of the Petitioner that the complaint read as a whole is a complaint in regard to the oral termination of the services of the workman and is therefore one in respect of which the Industrial Court would have no jurisdiction raises arguable questions. A complaint under Item 1 of Schedule IV lies before the Labour Court and not the Industrial Court. The contention of the employer is that read as a whole, the grievance of the workman is that after he presented himself for work upon the expiry of the leave, he was prevented from working and was not allowed to work. In fact, the order of the Labour Court dated 23rd September, 2005 itself shows that the complaint is styled as a complaint under Items 5, 9 and 10 read with Item 1 of Schedule IV. Whether items 5, 9 and 10 are at all attracted or whether the substance or gravamen of the complaint would relate to Item 1 of Schedule IV would determine the question as to whether the Industrial Court had jurisdiction to entertain the complaint. Having regard to the issue involved and particularly the question of jurisdiction which would go to the root of the proceedings, it is only appropriate and proper that the Industrial Court should have allowed the application for restoration. The 5 Industrial Court was manifestly in error in declining to allow the the application. 4. There is an office report to the effect that the Respondent has been duly served. 5. The Petition is accordingly allowed. The impugned order of the Industrial Court dated 8th February, 2008 is set aside. The miscellaneous restoration application (ULP) No.35 of 2006 shall stand allowed. The order passed by the Industrial Court on 23rd September, 2005 is accordingly set aside. Complaint (ULP) 648 of 2004 is restored to the file of the Industrial Court. The Industrial Court shall now proceed to hear and dispose of the complaint after furnishing an opportunity to the parties of being heard. 6. All the rights and contentions of the parties including on the question of jurisdiction are kept open to be finally decided by the Industrial Court. It is clarified that the observations contained in this judgment in regard to the issue of jurisdiction are confined to the disposal of the application for restoration and shall not preclude a final determination thereon by the Industrial Court. The Petition 6 shall stand allowed in these terms. There shall however be no order as to costs. *****