Managing Director vs K.Premaraj
2023 Latest Caselaw 6659 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                     &
                 THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
          Tuesday, the 20th day of June 2023 / 30th Jyaishta, 1945
                  CM.APPL.NO.1/2023 IN WA NO. 990 OF 2023
            WP(C) 11595/2021 OF HIGH COURT OF KERALA, ERNAKULAM
PETITIONER/APPELLANT:

     MANAGING DIRECTOR, MIMS HOSPITAL, (NOW ASTER MIMS HOSPITAL)
     GOVINDAPURAM, MINI BYEPASS ROAD, KOZHIKODE, PIN - 673016

RESPONDENTS/RESPONDENTS:

  1. K.PREMARAJ, MECHKANJIRATTU, ERAMALA P.O., VADAKARA, PIN - 673501
  2. LABOUR COURT, KOZHIKODE- 9

     Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 46 days in filing the above Writ Appeal.
     This Application again coming on for orders upon perusing the
application and the affidavit filed in support thereof, and this Court's
order dated 02/06/2023 upon hearing the arguments of M/S.V.KRISHNA MENON,
P.VIJAYAMMA & J.SURYA, Advocates for the petitioner, the court passed the
following:
            ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.
                         ==================
       CM Appl. No.1/2023 in WA 990/ 2023 & WA 990/ 2023
(Arising out of the judgment of the learned Single Judge in WP© No.11595/2021 dated
                                      03.03.2023)
                                WA 752/ 2023
      (Arising out of the Judgment dated 03.03.2023 in WP(C) No.6840/2021)
                         ==================
                  Dated this the 20th day of June, 2023
                                   ORDER

CM Appl. No.1/2023 in WA 990/ 2023

This is an application filed by the appellant seeking condonation of

the delay of 46 days in filing this Writ Appeal.

2. Heard Sri.V.Krishnamenon, learned Counsel appearing for the

applicant/appellant and the respondent herein who has appeared as party

in person. The respondent has opposed the plea for delay condonation.

After having heard both sides and after taking note of the facts and

circumstances disclosed in the affidavit dated 17.06.2023 filed in support

of the delay condonation application, the following facts are noted. The

impugned judgment was rendered on 03.03.2023. The certified copy of the

said judgment was received by the Counsel for the appellant herein on

06.03.2023 and they had on the same day forwarded it to the superior

office of the appellant herein. The said certified copy of the judgment was

thus received in the office of the appellant on 09.03.2023. The appellant

had on the same day, through email sought opinion of their counsel CM Appl. No.1/2023 in WA 990/ 2023 & WA 990/ 2023 & WA 752/ 2023

- : 2 :-

regarding findings of the learned Single Judge in the impugned judgment

dated 03.03.2023. The Counsel for the appellant had on 09.03.2023

through email had opined that there is scope to file writ appeal to challenge

the impugned judgment. The appellant had then decided to file appeal on

17.05.2023. Further that this Court closed for summer vacation since

14.04.2023 upto 22.05.2023. The appeal was filed on the reopening day

after summer holidays on 22.05.2023. There occurred a delay of 46 days in

that regard in filing the above Writ Appeal. After hearing both sides, we are

of the view that sufficient grounds have been made out by the appellant for

condoning the delay. In that view of the matter, it is ordered in the interest

of justice that the delay of 46 days in filing this WA will stand condoned.

With these observations and directions, the above Civil

Miscellaneous Application will stand disposed of.

WA No.990/2023

Admit WA.

2. R1 in the WP(C)/R1 in the WA has appeared as party in person

and he has taken notice. R2 Labour Court is a quasi-judicial Tribunal and

hence, notice is dispensed with. Service complete.

3. The Registry will show that the aforesaid party in person has

entered appearance. The pleas in the interim relief portion of this Writ

Appeal are two fold. The 1st plea is for interim stay of the operation and CM Appl. No.1/2023 in WA 990/ 2023 & WA 990/ 2023 & WA 752/ 2023

- : 3 :-

enforcement of the impugned judgment. The 2 nd plea therein is that stay

may be granted by the Appellate Court regarding further proceedings in

pursuance of Ext.P3 petition. It is stated by Sri.V.Krishna Menon, learned

Counsel appearing for the appellant that the learned Single Judge at the

WP(C) Stage had granted stay of further proceedings in pursuance of

Ext.P3 petition as per order rendered on IA No.1/2022 in WP(C)

No.11595/2021 and that interim stay of Ext.P3 proceedings was in force till

the disposal of the writ petition.

4. Ext.P3 has been produced alongwith IA No.1/2022 in the

above WP(C). A reading of Ext.P3, more particularly, its English

Translation as produced in the IA would show that its a petition filed under

Sections 340 & 195 of the Cr.P.C. by R1 herein. It is pointed out by

Sri.V.Krishna Menon, learned counsel appearing for the appellant that the

admitted case of the respondent herein in Ext.P3 petition is that certain

documents which were already allegedly fabricated or forged were later

produced by the appellant before the Labour Court and other authorities

and that therefore he is invoking the remedy under Sec.340 read with

Sec.195 of the Cr.PC. It is urged that even as per the admitted case in

Ext.P3, the respondent has no case that a document which was otherwise

proper and genuine was produced in the Court and thereafter forgery or

falsification of the document has been done, when the document was in the

custody of the court below concerned. That it is now well established by the CM Appl. No.1/2023 in WA 990/ 2023 & WA 990/ 2023 & WA 752/ 2023

- : 4 :-

ruling of the Constitution Bench of he Apex Court in the celebrated case

Iqbal Singh Marwah & anr. v. Minakshi Marwah & anr. [(2005) 4 SCC 370]

that it is only in a case of custodia legis that the proceedings in terms of

Sec.340 of the Cr.PC would lie. In other words, in a case where the

document is alleged to be fabricated or falsified even before its production

in the Court, then proceedings under Sec.340 Cr.PC etc., may not lie.

Hence, there will be interim stay of further proceedings in pursuance of

Ext.P-3.

The plea for grant of interim stay in the impugned judgment made in

this Appeal, WA No.990/2023 will be considered later.

Both sides will apprise this Court, as to whether they are amenable

for mediatory efforts.

List this WA along with WA No.752/2023 on 19.07.2023 as the last

item in the petition list.

WA No.752/2023

List this case along with WA No.990/2023 on 19.07.2023.

Handover to both sides.

sd/-

ALEXANDER THOMAS, JUDGE

sd/-

C. JAYACHANDRAN, JUDGE Nsd