Delhi High Court
Shyam Lal vs Union Of India on 16 September, 2010
Author: S. Muralidhar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
15
+ W.P.(C) 10185/2009
SHYAM LAL ..... Petitioner
Through Mr. Amit Kumar, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through Mr. Neeraj Chaudhari with Mr. Khalid
Arshad, Advocate
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in Digest? No
ORDER
% 16.09.2010
1. The Petitioner is 64 years old. He was appointed as a driver in the
Embassy of Greece (Respondent No. 2 herein) in the year 1971 as a locally
recruited person. He served Respondent No. 2 for over 34 years and 9
months till September 2005. The Petitioner states that eight months prior to
the date of his superannuation, i.e. 31st May 2006, his services were
terminated with effect from 1st October 2005 without assigning any reason.
2. The Petitioner made a representation to the Ministry of External Affairs
(„MoEA‟), Government of India which took up his complaint with the
Embassy of Greece. An appeal was also made to the Foreign Minister of
Greece with regard to the Petitioner‟s allegedly illegal termination and
consequential relief of compensation. In response to a legal notice issued by
the Petitioner, the plea of Respondent No. 2 in the reply dated 1 st June 2006
was that his engagement was on a casual basis and fell outside any of the
labour statutes in India. Therefore, his claims were not accepted.
3. The Petitioned then applied to the Government of India under Section 86
of the Code of Civil Procedure Code, 1908 („CPC‟) for permission to sue
Respondent No. 2 for unlawful termination of his services and for
compensation as a consequence thereof. He also sought to sue Respondent
No. 2 for the retiral benefits he was entitled to. The prayer in his application
filed with Respondent No. 1 reads as under:
"It is, therefore, respectfully prayed that under the
circumstances mention above and in the interest of justice
the necessary written consent may kindly be granted to
the applicant with respect to file a specified suit or to
several suits or any other specified class or class specified
in the case of any suit for the recovery of his hard earned
amount of Rs. 10,80,950/- along with litigation and other
charges."
4. For a long time, the Petitioner did not receive any response. He had to
take recourse to the Right to Information Act, 2005 („RTI Act‟). In reply to
an application filed by him under the RTI Act, he was informed by
Respondent No. 1 on 21st July 2008 that "the matter is under the Ministry‟s
consideration. The Ministry will revert to you as soon as possible." But
thereafter, there was no response. In those circumstances, the Petitioner filed
the present petition.
5. In the counter affidavit filed by Respondent No. 1/Union of India („UOI‟)
on 9th July 2010 it was stated that by a letter dated 8th June 2010, the
Government of India had accorded and certified its consent under Section 86
CPC "for institution of legal suit by the Petitioner against the Embassy of
Greece, New Delhi in a court of competent jurisdiction for getting his
terminal benefits not including the compensation for termination." This
Court then required the UOI to file an additional affidavit giving the reasons
why the sanction for claim of compensation for termination was not
accorded.
6. Pursuant to the above order, the additional affidavit dated 15th September
2010 has been filed by the UOI. It is stated that the United Nations
Convention on Jurisdictional Immunities of States and Their Property 2004
(„UN Convention, 2004‟), "reflects the International Practice as to the
Immunity from the Jurisdiction of local courts." A reference is made to
Article 11 which reads as under:
"1. Unless otherwise agreed between the States concerned, a
State cannot invoke immunity from jurisdiction before a court
of another State which is otherwise competent in a proceeding
which relates to a contract of employment between the State
and an individual for work performed or to be performed, in
whole or in part, in the territory of that other State.
2. Paragraph 1 does not apply if:
a. The employee has been recruited to perform particular
functions in the exercise of government authority;
b. the employee is:
(i) a diplomatic agent, as defined in the Vienna
Convention on Diplomatic Relations of 1961;
(ii) a consular officer, as defined in the Vienna
Convention on Consular Relations of 1963;
(iii) A member of the diplomatic staff of a permanent
mission to an international organization or of a special
mission, or is recruited to represent a State at an international
conference or
(iv) any other person enjoying diplomatic immunity;
c. the subject matter of the proceeding is the recruitment,
renewal or reinstatement of an individual;
d. the subject matter of the proceeding is the dismissal or
termination of employment of an individual...."
7. Learned counsel for Respondent No. 1 referred to para 6 of the additional
affidavit to state that there is an international practice to grant immunity to
foreign missions in terms of Article 11 (2)(d) of the UN Convention, 2004
where the proposed legal action was in relation to dismissal or termination
of the employment of an individual as regards claim for compensation. In
addition, he referred to a Model Code of Contract whereby locals are
employed in the embassies in India. According to him, the Model Contract
only envisages the payment of retiral benefits. Further, the understanding of
the UOI is that Article 11 (2) (d) is an exception to Article 11 (1) and that
since the proposed litigation concerns claims for compensation for alleged
illegal dismissal or termination of the employment, as a matter of practice no
sanction can be granted for that purpose.
8. Having considered the submissions of learned counsel for the parties and
having perused the records, and in particular the UN Convention, 2004, this
Court is of the view that the UOI has proceeded on an incorrect
understanding of Article 11 (2) (d) of the UN Convention, 2004. In terms of
Article 11 (1), in order to constitute an exception to Article 11 (1) two
conditionalities have to be satisfied. One is that the subject matter of the
proceeding should concern the dismissal or termination of the employment
of an individual. That condition is satisfied in this case. The second
conditionality, which is a cumulative one as indicated by the word „and‟, is
that the "Head of the State, the Head of the Government or the Minister for
Foreign Affairs of the employer State" should determine that "such a
proceeding would interfere with the security interests of that State."
9. When a query was posed by this Court to the learned counsel for
Respondent No. 1, whether UOI had ascertained from Respondent No. 2
whether there was any such determination by Respondent No. 2 that the
proceeding proposed to be instituted by the Petitioner would interfere with
the security interests of the Government of Greece, learned counsel for
Respondent No. 1 answered in the negative. Clearly, the UOI was on its own
presuming that the proceedings proposed to be instituted by the Petitioner
would interfere with the security interests of the Government of Greece.
10. At this stage, learned counsel for Respondent No. 1 interjects to submit
that it is the understanding of the UOI that all foreign missions are immune
from claims of compensation by the local employees of such foreign
missions who allege illegal dismissal or termination of services. When asked
to explain the basis of such understanding a reference is made again to the
international practice of granting immunity under Article 11 of the UN
Convention, 2004.
11. In the considered view of this Court, Article 11 of the UN Convention,
2004 does not give any such blanket immunity to a foreign embassy from
claims for compensation by a local employee who alleges illegal termination
of his services. Immunity can be granted in terms of Article 11 (2) (d) only
where such foreign government determines that such proceeding would
interfere with its security interests. In the present case, there is no
determination as yet by the Government of Greece that the proceedings
proposed to be instituted by the Petitioner seeking compensation for alleged
illegal termination of his services would interfere with the security interests.
12. Consequently, there is no legal basis for the UOI to refuse sanction to the
Petitioner to sue Respondent No. 2 to seek compensation for alleged illegal
termination of his services. Consequently, the decision dated 8 th June 2010
of the MoEA refusing sanction to the Petitioner to seek compensation from
Respondent No. 2 is hereby set aside.
13. The next question that arises for consideration is the consequential
direction that should be issued. Learned counsel for Respondent No. 1 refers
to the judgment of the Supreme Court in Union of India v. Bilash Chand
Jain (2009) 16 SCC 601 which holds that even where the High Court finds
that refusal of sanction by the UOI under Section 86 CPC is not valid, the
High Court has to remand the matter to MoEA "to reconsider the mater in
accordance with law instead of itself directing the Government to consent
order under Section 86 (3)."
14. Consequently, in terms of the judgment of the Supreme Court in Union
of India v. Bilash Chand Jain, this Court remands the matter to Respondent
No. 1 to reconsider the request of the Petitioner for grant of sanction to claim
compensation from Respondent No. 2. A fresh decision on the Petitioner‟s
request to the above extent will be taken by Respondent No. 1 within a
period of eight weeks from today. The said decision will be communicated
to the Petitioner within a further period of two weeks thereafter. If
aggrieved, it will be open to the Petitioner to seek such appropriate remedies
as are available to the Petitioner in law.
15. The petition is, accordingly, allowed with the above directions.
16. Order be given dasti under the signature of the Court Master.
S.MURALIDHAR, J
SEPTEMBER 16, 2010
rk
