1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2191 OF 2009 India Tourism Development Corporation Ltd. ..Petitioner. Vs. Bharatiya Kamgar Sena ..Respondent. .... 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. 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 before the Industrial Court. The substantive relief that has been sought in the complaint includes a direction to the Petitioner to provide normal and usual work to all the employees whose names appear at Annexure A to the complaint at the duty free shops at 2 Mumbai Airport. On 16th February, 2009 an application was filed on behalf of the Petitioner for the disposal of the complaint as infructuous. According to the Petitioner the duty free shop where the Petitioner was carrying on business had been vacated and the space was handed over to the Airport Authorities. As a result it was contended that all the permanent employees had taken Voluntary Retirement and about four or five persons who remained had been relocated to other offices of the Corporation at New Delhi. According to the Petitioner the entire permanent establishment at the duty free shop at Mumbai had closed down. In the circumstances the prayer in the application was that the complaint be disposed of as having become infructuous. The application was disposed of by the Industrial Court by observing that it would be considered while deciding the matter on merits. 2. Having perused the issues that were framed by the Industrial Court on 15th November, 2008 and specifically having regard to the defence which has been taken by the management, it 3 would be appropriate if the following additional issue is framed : 1(a) Does the management establish that the duty free shop at Mumbai Airport has been closed down and the space occupied therein handed over to the Airport Authorities consequent upon which the complaint is rendered infructuous; 3. In addition to the aforesaid, the following issue as to jurisdiction is directed to be framed: 1(b) Does the management establish that the Industrial Court has no 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 4 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 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 1 1999 (82) FLR 225. 2 1996 II CLR 234. 5 disposed of at the trial of the complaint. The Petition is accordingly disposed of in terms of the aforesaid directions. ****