1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2190 OF 2009 India Tourism Development Corporation Ltd. ..Petitioner. Vs. Dilip P. Bagwe and others ..Respondents. .... Mr. J.P. Cama, Senior Advocate with Mr. Saikumar Ramamurthy and Mr. Ramesh Ramamurthy for the Petitioner. Mr. M.D. Nagle for the Respondents. .... CORAM: DR. D.Y. CHANDRACHUD, J. 24th November, 2009. P.C. : 1. Rule, returnable forthwith by consent. Learned counsel for the Respondents waive service. By consent taken up for final hearing. 1A. A complaint of unfair labour practices has been filed under items 9 and 10 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 by the Respondents. The substantive relief in the complaint, that was sought included a direction to the management to continue to pay the salaries/ wages to all the complainant workmen until they were paid their final dues arising out of a Voluntary Retirement Scheme viz. VRS 2007 and VRS 2008. Issues have been framed in the complaint on 15th November, 2008. The management moved an application on 2 16th February, 2009 contending that the complaint had been rendered infructuous as the complainants had been relieved on 18th February, 2008 and that they had been paid their dues under the Voluntary Retirement Scheme. The Industrial Court disposed of the application by observing that the application will be considered while deciding the matter on merit. In addition it may be necessary to note that one of the defences in the written statement filed by the management is that the Industrial Court had no jurisdiction to entertain the complaint as the appropriate government in respect of the undertaking of the management was the Central Government. 2. The defence to the effect that upon the payment of the dues under the Voluntary Retirement Scheme, the complaint had been rendered as infructuous ought not to have been deferred to the hearing of the complaint. There is merit in the submission which has been urged on behalf of the Petitioner that if the Petitioner is right in asserting that all the workmen have been paid their Voluntary Retirement Scheme dues, then in that case the principal relief if not 3 substantive relief that is sought in the complaint would not survive. Counsel appearing for the workmen, however, submitted that the workmen had sought their annual increments with effect from 1st March, 2008 and if these increments are granted then the dues under the Voluntary Retirement Scheme would have to be recomputed. This undoubtedly is a matter which would have to be taken into account by the Tribunal in considering the case of the management that all the dues as a matter of fact have been paid. If the management is correct in its submission, no purpose would be served by requiring that all the evidence in the complaint should be recorded and that a full fledged trial should take place. This would only result in delay. Besides if the entire dues under the Voluntary Retirement Scheme have been paid, nothing would survive and the Industrial Court can put an end to the proceedings in the complaint. In this view of the matter it would be appropriate to direct that two additional issues be framed by the Industrial Court; the first in relation to the defence of the management that the complaint is rendered infructuous upon the payment of VRS dues and second in 4 view of the management’s objection as to the jurisdiction of the Industrial Court. 3. In the circumstances, the Industrial Court is directed to frame the following two additional issues : 1(a) Has the management paid to the complainant workmen the VRS dues and if so is the complaint rendered infructuous upon the payment and receipt thereof; 1(b) Does the Industrial Court have jurisdiction to entertain and try the complaint; 4. Issue No.1(a) shall in the first instance be tried as a preliminary issue. Should it become necessary for the Industrial Court to decide the issue of jurisdiction, this issue is being directed to be tried with the other issues having regard to the principle that has been laid down by the Supreme Court in M/s. Cipla Ltd. v. Ripu Daman Bhanot1 and in the earlier judgment in National Council for Cement and Building Materials v. State of Haryana2. Since the issue as to the jurisdiction of the Industrial Court to entertain and try 1 1999 (82) FLR 225. 2 1996 II CLR 234. 5 the complaint would depend upon which is the appropriate government under Section 2-(a) of the Industrial Disputes Act, 1947, and this is an issue on which evidence would have to be adduced, it would be appropriate if this issue is deferred for trial together with the other issues in the complaint. However, insofar as issue No.1(a) is concerned, it is desirable for the reasons already indicated that the issue should be tried as a preliminary issue. 5. The Industrial Court is requested to dispose of the issue after hearing the parties expeditiously and preferably within a period of two months from today. In the event that the Industrial Court holds that the complaint has been rendered infructuous, nothing further would survive. If the Industrial Court comes to the conclusion that the complaint still subsists, all the other issues shall be heard and disposed of at the trial of the complaint. 6. The Petition is accordingly disposed of in terms of the aforesaid directions. ****