SCA/4859/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4859 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= HEMANT RAJENDRABHAI DAVE - Petitioner(s) Versus DGP, WINDSOR INDIA LTD. - Respondent(s) ========================================= Appearance : PARTY-IN-PERSON : Petitioner : MR KM PATEL for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 21/07/2008 ORAL JUDGMENT 1. The petitioner has preferred present petition with below mentioned prayers: (a) Be pleased to admit this petition. (b) To quash and set aside the order dated 8/12.2.2008 at Annexure O, passed by the Ld. Presiding Officer, Labour Court, Kalol, below Exh.17 in Reference (LCK) No.66 of SCA/4859/2008 2/11 JUDGMENT 2003 decided on 8/12.2.2008 as wrong, illegal, null and void. (c) Be pleased to further stay the proceedings of Reference (LCK) No.66 of 2003, pending and final disposal of this Special Civil Application by way of interim relief. 2. By the order dated 8/12.2.2008, the learned Labour Court has rejected an application preferred by the petitioner, whereby he requested the learned Labour Court to lodge complaint under Section 195 of Criminal Procedure Code against the persons named in his application on the ground that the named person had produced forged/fabricated documents on the record of the Court. 3. After considering the said application and reply of the respondent herein and after hearing the parties, the learned Labour Court passed impugned order holding inter alia that the application was premature as it was submitted before the evidence was recorded and that the application, as per observations and findings of the Court, was given only to harass the respondent - Company. The learned Court being of the said view, rejected the said application. Aggrieved by the said decision and order of the learned Court, the petitioner has preferred present petition. 4. The record shows that earlier Mr. K. H. Baxi, learned advocate was appearing on behalf of the petitioner, however, the petitioner appears to SCA/4859/2008 3/11 JUDGMENT have withdrawn the authority earlier given in favour of Mr. Baxi and that therefore, Mr.Baxi, addressed a letter dated 9.7.2008 to the Registrar informing that the petitioner had instructed him not to appear and that therefore, he may be permitted to withdraw his Vakalatnama. Since then no order has been passed on the said request and the cause list continues to show appearance of Mr. Baxi , as advocate, however, before this Court on different occasions, the petitioner has himself appeared and argued the matter and has asserted that he has withdrawn authorization in favour of the advocate and desires to be argue the matter himself. 5. Heard the petitioner and also heard Mr. V.K. Patel for Mr. K.M. Patel, learned advocate for the respondent - Company. 6. The petitioner, who appears as party-in-person submitted that the departmental inquiry was conducted against him and in pursuance of the said inquiry, his service was terminated and aggrieved by the action of the respondent - Company, he raised an industrial dispute, which culminated into Reference (LCK) No.66 of 2003. It is the case of the petitioner that the respondent - Company produced certain documents on the record of the said Reference and some of them, according to the petitioner, are either forged or fabricated. The petitioner submitted that after he came to know that some of the documents are fabricated, he submitted a complaint in the Court of learned Judicial Magistrate First SCA/4859/2008 4/11 JUDGMENT Class, Kalol on or around 4.4.2003 with regard to the said documents. The complaint was examined under Section 200 and according to his information, the police has filed report on or around 4.7.2003 and the matter is now pending for framing of charge and actually the Court was going to frame the charge on 5.1.2008, however, the proceedings were adjourned and now the same are scheduled to take place on 7.8.2008. The said complaint is registered as Criminal Case No.1402 of 2003. The petitioner further submitted that since the same forged/fabricated documents are produced by the respondent - Company also on the record of the Reference before the learned Labour Court, he submitted an application on 26.6.2007 (Exhibit 17) requesting the learned Labour Court to exercise the power under Section 195 of Criminal Procedure Code and to file complaint against the respondent - Company and the officers named in the application under Sections 406, 420, 467, 468, 471, 477(A), 120 (B) and 114 of Indian Penal Code. He also submitted that in view of the fact that the Court of learned Judicial Magistrate First Class had already ordered inquiry to be made in respect of his complaint, which means that there is a case against the respondent - Company and its officers, thus, it was in the fitness of things that the request was granted. However, the learned Labour Court arbitrarily and without justification, disallowed the application. 7. On the other hand, Mr. V.K. Patel, learned advocate appearing for SCA/4859/2008 5/11 JUDGMENT Mr. K.M. Patel, learned advocate for the respondent - Company submitted that the petitioner has been prosecuting diverse remedies for the same and similar relief inasmuch as in respect of very same documents and on the basis of identical or similar allegation, the petitioner has already put in motion the process by filing the application before learned Judicial Magistrate First Class, which is registered as Criminal Case No.1402 of 2003 and thereafter, now the petitioner has filed another application on similar allegation before the learned Labour Court. He submitted that the said application dated 26.6.2007 (Exhibit 17) amounts to abuse of process of law. Mr. Patel, submitted that in backdrop of such facts and circumstances, the subject application is not maintainable and the learned Labour Court has rightly rejected the same. Mr. Patel, further submitted that if the allegation of the petitioner are presumed, only for sake of arguments, to be true then also the case which can be made against the respondent - Company and named officers would be of submissions of fabricated/forged documents on the record of the learned Labour Court and that therefore, the provisions of Section 195 would not be attracted or applicable and to support his said submission, Mr. Patel, relied upon the judgment of the Hon'ble Apex Court in the case of Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another reported in (2005) 4 Supreme Court Cases 370. 8. Except aforesaid submissions, no other submissions are made on SCA/4859/2008 6/11 JUDGMENT behalf of the petitioner or respondent. 9. It is necessary to mention that since the petitioner appears as party-in-person, this Court asked him, at least thrice, as to whether he would like assistance of an advocate, to which he replied in negative. This Court, so as to enable him to consider the scope and effect of the submissions made by the respondent, adjourned the proceedings so that he can go through the submissions of the respondent and if necessary even consult some one, who may be well versed in law. Even before starting dictation of this order, this Court again inquired from the petitioner as to whether he would like to add or clarify anything, in reply to which the petitioner submitted that he does not want to add anything and does not want assistance of any advocate and he requested the Court to pass appropriate order. 10. Considering the application given by the petitioner to the learned Labour Court i.e. application dated 26.6.2007 (Exhibit 17) and considering that the proceedings of Criminal Case No.1402 of 2003 are pending in the Court of learned Judicial Magistrate First Class, Kalol, this Court is of the view that it is not necessary to examine the merits of the allegations made by the petitioner regarding the documents and/or to consider the submission of the respondent based on the judgment of the Hon'ble Supreme Court in the case of Iqbal Singh Marwah and Another SCA/4859/2008 7/11 JUDGMENT (Supra), which has been referred recently in the case between P. Swaroopa Rani Vs. M. Hari Narayana reported in 2008 (5) SCC 765 because any observation of this Court on the merits of the allegations and/or defence is likely to affect the proceedings before the Court of learned Judicial Magistrate First Class and/or the learned Labour Court. Thus, considering the pendency of the said proceedings, this Court has refrained from examining the allegations regarding the documents on merits. There is an additional aspect, which also convinced this Court to refrain from examining allegations on merits viz. the observation made by the learned Labour Court in the impugned order dated 8.2.2008 where the learned Labour Court has recorded that the issue raised by the applicant ( i.e. present petitioner) can be examined only after the evidence is let-in and after examining the evidence of both sides. 11. So as to understand and appreciate the said observation by the learned Labour Court in the impugned order vis-a-vis the grievance made by the petitioner, it is necessary and relevant to consider, for the limited purpose, certain factual aspect. It appears that for certain acts amounting to misconduct allegedly committed by the petitioner herein, a charge- sheet dated 1.8.2002 was served on the petitioner and subsequently, departmental inquiry was conducted. It also appears that after receipt of the report of the Inquiry Officer, a second show cause notice about SCA/4859/2008 8/11 JUDGMENT proposed penalty was served on the petitioner on or around 22.12.2002 and thereafter, by an order dated 31.12.2002 service of the petitioner was terminated. 12. It transpires from the record produced by the petitioner that in the Reference proceedings, he filed his statement of claim on 23.3.2004, which would establish that the order of Reference must have been made by the appropriate Government before 23.3.2004, whereas the petitioner filed the complaint in the Court of learned Judicial Magistrate First Class on 4.4.2003, meaning thereby the petitioner filed the said complaint after the order of Reference. 13. During his submissions, the petitioner submitted that the documents relating to the departmental inquiry were supplied under the letter dated 2.1.2003 and after he received the said documents, he realized that some of the documents were either forged or fabricated and therefore, he filed the said complaint dated 4.4.2003 in connection with the said documents of departmental inquiry. 14. As noted hereinabove earlier, certain developments with reference to the said compliant have taken place and now the further hearing of the Criminal Case No.1402 of 2003 is scheduled to take on 7.8.2008. 15. It is pertinent to note that while the said proceedings have been SCA/4859/2008 9/11 JUDGMENT going on in the Court of learned Judicial Magistrate First Class, the petitioner herein submitted subject application Exhibit 17 dated 26.6.2007 before the learned Labour Court. It is the case of the petitioner that the said application is given in connection with the same documents of departmental inquiry in respect of which the Criminal Case No..1402 of 2003 is filed. 16. In this view of the matter, the submission of Mr. Patel, learned advocate to the effect that the petitioner is pursuing two remedies in respect of the same subject matter, prima facie appears to be correct. However, as mentioned hereinabove earlier, this Court is not inclined to make any observation on that count at this stage and if diverse remedy in law is available then it would be for the concerned Court to take into account the respondent's objection and pass appropriate orders. 17. This takes the Court to examine the reasons recorded by the learned Labour Court in the impugned order. The petitioner has declared before this Court that he has challenged legality and propriety of the departmental inquiry. However, the stage of evidence from side of the respondent - Company and/or his side with regard to the departmental inquiry or document in question has yet not commenced. In view of the said clarification of the petitioner with regard to the stage of evidence, it appears that the learned Labour Court is justified in SCA/4859/2008 10/11 JUDGMENT holding that the application given by the petitioner is premature. It would be only after learned Labour Court is satisfied, at least prima facie, about the substance in petitioner's allegation then only the leaned Labour Court would be in position to take decision as to whether the power under Section 195 of the Criminal Procedure Code should be exercised or not and whether to file complaint against the respondent Company and the named officers, or not and unless the evidence with regard to the departmental inquiry and relevant document is led and documents are examined, it would not be possible for the learned Labour Court to form even any prima facie opinion and/or to arrive at any conclusion. 18.. Under the circumstances, the reasons given by the learned Labour Court of not entertaining the application at this stage appear to be justified and proper and does not appears to be erroneous. The learned Labour Court has not committed any error of jurisdiction or law, while passing the said order. Therefore, this Court is not inclined to interfere with the impugned order dated 8.2.2008 passed by the learned Labour Court below Exhibit 17 in Reference (LCK) NO.66 of 2003. 19. It is further clarified that neither this order nor the order dated 8.2.2008 would come in way of the petitioner to prefer any appropriate application at later stage after the evidence regarding departmental SCA/4859/2008 11/11 JUDGMENT inquiry and the documents is available on record of the learned Labour Court and is duly considered by the learned Labour Court and at that stage, if the applicant prefers any application then the same should be considered by the learned Labour Court in accordance with law without being influenced by this order or its own order dated 8.2.2008. 20. With the aforesaid observations and clarifications, the petition is not entertained and same is rejected at this stage. (K.M.THAKER, J.) ynvyas