1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7063 OF 2008 Mazgaon Dock Staff Association. ...Petitioner. Vs. Mazgaon Dock Ltd. ...Respondent. .... Mr. R.D. Bhat for the Petitioner. Mr. J.P. Cama, Senior Advocate with Mr. R.S. Pai i/b. M/s. Sanjay Udeshi for the Respondent. Mr. N.M. Ganguli for Intervenor. ..... CORAM : DR. D.Y.CHANDRACHUD, J. December 2, 2008. P.C. A complaint of unfair labour practices (Complaint (ULP) 278 of 1997) was filed before the Industrial Court under Item 9 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 by Shivbrat Jagroop Mishra who was engaged as a Rivetter by Mazgaon Dock Ltd. The substantive relief sought in the complaint was as follows: “(a) For an order quashing and setting aside the letter dated 16.10.96 regarding the date of retirement on 31.3.97; (b) for an order directing the Respondents to treat the 2 School Leaving Certificate produced by the Complainant as his proof of date of birth and to treat his date of birth as 5.2.1946; (c ) for an order restraining the Respondents from taking any action on the basis of the chargesheet dated 28.3.95, and the subsequent departmental inquiry.” 2. An objection was raised by the Respondent to the maintainability of the complaint and on 3rd February 1998, the Respondent filed an application for the dismissal of the complaint for want of jurisdiction. The application was based on the judgment of the Supreme Court in Air India Statutory Corporation vs. United Labour Union, 1997 I CLR 292 and it was asserted that the appropriate Government is the Central Government under Section 2 (a) of the Industrial Disputes Act, 1947. The Industrial Court dismissed the application filed by the Respondent questioning its jurisdiction by a judgment dated 27th August 1998. On 30th April 2001, the judgment of the Industrial Court was confirmed by a Learned Single Judge of this Court. 3. During the pendency of the appeal before the Division 3 Bench, the correctness of the judgment of the Supreme Court in Air India (supra) was reconsidered by a Constitution Bench in Steel Authority of India Ltd. vs. National Union of Waterfront Workers, 2001 III CLR 349. The Supreme Court overruled the decision in Air India. Thereafter, the appeal which was pending before the Division Bench was disposed of on 1st October 2007. The Division Bench held that since the judgment in Air India no longer held the field, that judgment could not be applied to hold that the appropriate Government was the Central Government. The Division Bench also held that a mere delegation of powers by the Central Government to the State Government under Section 39 of the Industrial Disputes Act, 1947, would not render the State Government to be the appropriate Government. However, before the Division Bench it was urged by the Respondent that in view of a judgment of the Division Bench of this Court in Silvester & Co. vs. Their Workmen, 2008 I CLR 173, the appropriate Government for the Respondent under Section 2(a) of the Industrial Disputes Act, 1947 would be the Central Government. The Division Bench was of the view that this issue raised a mixed question of law and fact. Consequently, while setting 4 aside the judgment of the Learned Single Judge and of the Industrial Court, the Division Bench permitted the Respondent-employer to file a fresh objection before the Industrial Court objecting to the jurisdiction of the Industrial Court to entertain the complaint of unfair labour practices on the ground that the State Government is not the appropriate Government in relation to Mazgaon Dock Ltd. It is in pursuance of the liberty granted in the judgment of the Division Bench that the objection was raised and considered by the Industrial Court. 4. By its judgment dated 26th August 2008, the Industrial Court held that the Central Government is the appropriate Government in respect of the Respondent and therefore, a complaint of unfair labour practices under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 would not be maintainable. 5. The petition before the Court has been instituted by the Mazgaon Dock Staff Association in order to impugn the correctness of the judgment of the Industrial Court on the issue of jurisdiction. The 5 workman who was the complainant before the Industrial Court has not moved these proceedings, and has not challenged the order holding the complaint not to be maintainable. 6. An affidavit in reply has been filed on behalf of the Respondent by Shri Ashok Govindrao Kini, Additional General Manager, (SB-P&IR) in which it has been stated that the complainant- workman has accepted his dues in a full and final settlement and has accepted his retirement from service with effect from 1st April 1997. The annexures to the affidavit in reply, include a written communication of the workman dated 13th June 2007 to the Respondent to settle his dues and reflecting the desire of the workman not to proceed with the pending complaint of unfair labour practices, namely, Complaint (ULP) 278 of 1997. In response thereto, the Respondent by a letter dated 18th October 2007 informed the workman that an amount of Rs.3,55,575/- was due and payable on account of Provident Fund, gratuity, leave wages and other incidental payments after making necessary deductions. The workman issued signed receipts in token of accepting his terminal dues. During the 6 course of the hearing, Counsel appearing on behalf of the Petitioning Union submitted before the Court that the question as to whether the appropriate Government is the State or, as the case may be, the Central Government, should be finally decided by this Court in the present proceedings so as to obviate litigation in pending complaints before diverse fora. This request has been opposed by Counsel appearing on behalf of the Respondent-management who urged that the complaint has been settled and as a result, it cannot be asserted that the Union would be a person aggrieved. Parties have agreed that the following order may be passed having regard to the fact that the workman has not challenged the order of the Industrial Court holding it had no jurisdiction since he has accepted his dues in settlement. Accordingly, the following order ensues by consent and on the request of the Learned Counsel for the parties and the intervenors: (i) Since the workman has not challenged the order impugned in these proceedings and has settled his claim, the order passed by the Industrial Court on 26th August 2008 shall no longer survive and 7 the correctness of the view formulated by the Industrial Court does not fall for determination in these proceedings. It has been stated on behalf of the Respondent that the Respondent shall not rely upon the impugned order of the Industrial Court in any other proceedings. (ii) The petition shall accordingly stand disposed of in these terms. .....