Appropriate guidance in lieu of inherent juris.u/s 482 crpc
V.N.K. MENON
(Querist) 11 September 2013
This query is : Resolved
History case:
A workman was awarded reinstatement with full backwages, continuity of service with all consequential benefits by Labour Court.
Management challenged the award in the High Court in 2006. Simultaneously, workman had filed application for relief u/s 17-B of I.D. Act. Single bench rejected it . Division bench passed a consented order in Jan 2009 wherein the Management agreed to pay 17-B wages and the management offered to reinstate the workman. 17-B wages were decided @ 15,500/-. There is no whisper as to the wages on reinstatement. I am reproducing the order:
“ Learned counsel appearing for the company states that without prejudice to their rights and contentions in the writ petition, the company is willing to pay wages under Section 17B of Industrial Disputes Act, 1947 to the workman from the date of the award till the end of January 2009, and the workman can join services of the company from 1st February, 2009, subject to the final result of the writ petition. Needless to say that Section 17B wages will be payable at the rate of last drawn wages, i.e. Rs. 15,500/-and the counsel for the company agrees to pay this amount to the workman within a period of four weeks from today”.
What the Management had done they reinstated the workman in February 2009 and under duress got signed a letter reducing last drawn wages (last drawn wages is more than 17-B relief) taking 17-B wages as last drawn wages taken for the purposes of 17-B. workman received the letter under protest and without prejudice. The management made off-the-cuff reference of the order and overreached the court. A case was filed in the High court exactly with the following subject line at the beginning, is reproduced for easy reference:
“CRIMINAL MISCELLANEOUS PETITION U/S 482 CR.PC SAVING INHERENT POWERS OF THE HIGH COURT, TO MAKE SUCH ORDERS AS MAY BE NECESSARY TO GIVE EFFECT TO ANY ORDER THIS CODE OR TO PREVENT ABUSE OF THE PROCESS OF THE COURT OR OTHERWISE TO SECURE THE END OF JUSTICE
&
AND OFFENCE UNDER SEC 463 & 464 IPC HAS BEEN COMMITTED BY RESPONDENT (ACCUSED0 AS HE DISHONESTLY MADE FALSE DOCUMENT WHICH HE IS NOT ENTITLED TO DO SO BY ABUSING THE PROCESS OF THIS HON’BLE COURT WITH INTENT TO CAUSE DAMAGE OR INJURY TO PETITIONER (VICTIM) AND TO SUPPORT HIS CLAIM WHICH CAUSED DAMAGE OR INJURY TO PETITIONER (VICTIM) AND THUS FORCED PETITIONER VICTIM TO ENTER INTO EXPRESS CONTRACT AND THAT FRAUD HAS BEEN COMMITTED, DEEMED TO HAVE COMMITTED FORGERY HENCE COGNIZANCE OF OFFENCE MAYBE TAKEN AGAINST RESPONDENT (ACCUSED)
&
THEREFORE, SEC. 474 (CHAPTER-XXXVII) OF CODE OF CRIMINAL PROCEDURE: TRIALS BEFORE HIGH COURT COMES INTO PLAY AND IT SHALL IN THE TRIAL OF OFFENCE, OBSERVE THE SAME PROCEDURE AS A COURT OF SESSIONS WOULD OBSERVE IF IT WERE TRYING THE CASE
&
PETITIOINER IS SEEKING PROSECUTION OF RESPONDENT (ACCUSED) FOR THE WRONG DONE DELIBERATELY FOR HIS GAINS AND AWARD DETERRENT PUNISHMENT TO ACCUSED U/S 468 & 420 IPC.”
Petition was admitted by the first judge in May 2012 , notice was sent to management, they were asked to file reply, reply was received. When the second judge presided rejoinder was filed by workman.
Subsequenty adjournments took place.
And now a judge presided over on 10.09.2013 On this day, the management raised jurisdictional objection. My argument was that there are 3 circumstances for exercise of inherent jurisdiction as per the statute, i.e. to prevent abuse of process of court, secure end of justice, etc. The management was represented by a senior advocate who know the judge as he addressed him by his name.
As a matter of fact the judge declined to hear my version fully, but heard the senior counsel at length and took his version as gospel truth. In fact management is a chronic law-breaker. The course and conduct of management are tainted including graft case, which had been highlighted in the complaint.
It is pertinent to add that the Management has money-power. In similar situation in some other cases, as a safeguard, I used to file Written Arguments which proved an effective tool to file review. But in this case judge did not allow me to file written arguments.
The judge asked me to withdraw my case and said I shall be at liberty to file the case again and dictated the order accordingly.
QUERY:
1. Under what law/ section should I refile the case?
2. Whether any change in the contents is necessary?
I shall be much grateful for considered reply and guidance from experts and colleagues.
I hope I have explained the situation fully.
Thanks and regards in anticipation.
Raj Kumar Makkad
(Expert) 11 September 2013
1. Under section 200 of criminal procedure code.
2. You are free to insert some new facts.
V.N.K. MENON
(Querist) 12 September 2013
profound thanks dear mr. makkad
V.N.K. MENON
(Querist) 12 September 2013
Mr. Makkad,
I am quoting S.200. It says Complaint le before magistrate, In the circumstances, is it possible to file the case again in the High Court. The abuse of the process is court is w.r. to order of the high court. Could you please look into?
thanks
CHAPTER XV
COMPLAINTS TO MAGISTRATES
200.Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complainant; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
Raj Kumar Makkad
(Expert) 12 September 2013
I had already in mind the contents of the section so nothing gets changed with the posting of the section.
V.N.K. MENON
(Querist) 17 September 2013
In the meanwhile, I could get copy of order of 10th Sept, today. As such, it is appended. I may be excused for not able to give it earlier.
========QUOTE=======
10.09.2013
1. The learned Senior Counsel for the respondent submits that the
prayers made by the petitioner in this petition are not maintainable
under Section 482 Cr.PC.
2. The petitioner is present in person and he seeks permission to
withdraw this petition with liberty to avail appropriate legal remedies
available to him in accordance with law.
3. The petition is dismissed as withdrawn with liberty as prayed for.
J.R. MIDHA, J
===========UNQUOTE===========
In view of the contents of the order which I could not give earlier, please examine if I should refile the case u/s 200 CrPC IN THE TRIAL COURT
--OR--
should I file it in the high court S.474 trial before high court in view of the fact that the order does not specify as to under what provision or which forum the refiling may be done, as is usually clarified in several similar orders- whether such a step can stand the test of law - since the court fee now-a-days is exhorbitant? Your valued guidance will be highly appreciated.
Thanks and regards,
MENON
V.N.K. MENON
(Querist) 06 October 2013
Dear expert,
I filed case u/s 200 crpc. Now magistrate asks for list of witnesses.
The complaint is purely based on documentary evidence. Possible witness is Asst. Labour Commissioner, Delhi, who held conciliation proceedings, and cannot stand as witness in hundreds of cases.
In the circumstances, what is the way out to keep its maintainability.
Thanks and regards,
