Ramesh Kumar Sharma vs Royal Netherlands Embassy In ...
2012 Latest Caselaw 1321 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision : 27, February, 2012

+                      RFA(OS) 30/2002

      RAMESH KUMAR SHARMA                      ..... Appellant
          Represented by: Mr.Ankit Sibal, Advocate.

                              versus

      ROYAL NETHERLANDS EMBASSY IN INDIA & ANR.
                                             ..... Respondents
          Represented by: Mr.D.S.Narula, Senior Advocate
                          instructed by Mr.A.S.Narula,
                          Advocate.

      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

1. The respondent had sought a rejection of the plaint on the ground that courts at Delhi do not have jurisdiction and the only right of the appellant was to seek his remedies before the Court at Netherland. The application has been allowed on an entirely different ground i.e. that the suit-claim is barred by res-judicata.

2. Needless to state, as pleaded in I.A.No.11421/1998, filed under Order 7 Rule 11 of the Code of Civil Procedure, the correct prayer should have been that the plaint should be returned. The reason is that territorial jurisdiction was an issue.

3. Mr.D.S.Narula, learned senior counsel for the respondent concedes that the suit could not be held to be barred by res-judicata, for the reason, no court of competent

jurisdiction had, in a previous proceeding, decided upon the issue. But, learned counsel urges that the plaint is liable to be returned, with a direction that the same could be filed in the appropriate Court at Netherland.

4. The letter of appointment dated March 9, 1987, under which appellant was employed by the Royal Netherland's Embassy clearly records that the contract of employment is governed as per the Foreign Service Regulations 1951 (Staatsblad Bulletin of Acts, Orders and Decrees) 74, 1970. The letter of appointment clearly says that the articles of the civil code specified therein would be applicable to the contract to the extent they do not conflict with any mandatory provision of a local law in India. The contract between the parties is governed by the substantive law of Netherland subject to such part of the law which conflicts with the local law not being applicable. The procedure applicable for dispute resolution is the civil law in Netherland.

5. The appellant was employed in the Press and Cultural Department of the Embassy when employment was given in the year 1987. It may be noted that it appears to be a case of the appellant being employed with the Embassy somewhere in the year 1973, which employment came to be superseded by the employed order dated March 9, 1987.

6. The appellant took leave and did not return to join duty when leave expired. He was dismissed from service on September 28, 1990 against which he preferred an appeal which was to be considered on the administrative side. The Appeal Committee of the respondent considered the appeal and opined that dismissal from service was a wrong order, but

liable to be substituted with an order of terminating the service in a regular manner which would entitle the appellant to monetary benefits and thus in accordance therewith, the order dismissing appellant from service was withdrawn and replaced with an order terminating service of the appellant with monetary benefit, which were paid.

7. The order of the Appeal Committee was conveyed to the appellant under cover of a letter dated June 27, 1994 in which the concerned officer of the respondent informed the appellant that as per the General Administrative Law Act of Netherlands, the appellant could lodge an appeal with the Administrative Law Division of the District Court (Arrondissementsrecht Bank Section Bestuursrecht). The appellant did so and was conveyed the decision, styled as a judgment under Section 8.54 of the General Administrative Law Act, which is dated January 31, 1996. The appellant was informed that he could bring an action against the State of Netherland before the Civil Courts and for the wrong remedy advised by the official of the Embassy, the expenses incurred by the appellant i.e. Netherland Guilders 710, were directed to be paid to the appellant, which were paid.

8. Since, the order, styled as a judgment pursuant to Section 8.54 of the General Administrative Law Act in Netherland held that the appellant had the remedy before a Civil Court, the suit was filed by the appellant, ignoring that as per his contract of service, he had to sue in Netherlands and could not sue in a Court in India, for the reason the contract of employment, as noted hereinabove, was governed by the Foreign Service Regulations 1951 promulgated by the Government of Netherland which confers remedy only in the

Courts in Netherland. The civil procedure for the trial and the substantive law of Netherland would hold the field.

9. We are fairly impressed with law in Netherland, where on the subject of procedural fairness relating to an administrative action, a limited review jurisdiction is conferred upon a Civil Court to decide, akin to an administrative review action by constitutional court in India, to see whether the action does not suffer from the vice of procedural unfairness, leaving open substantive disputes being litigated at a regular civil trial. This results in a speedy adjudication where the issue is of procedural unfairness or procedural law being violated is resolved quickly, inasmuch as no evidence is to be led therein.

10. The appeal accordingly stands disposed of modifying the impugned order and holding that the suit is not barred by res-judicata, but the plaint it liable to be returned on account of Courts in India not having any jurisdiction to entertain the claim. It would be open to the appellant to pursue the remedy at an appropriate court in Netherland.

PRADEEP NANDRAJOG, J.

PRATIBHA RANI, J.

FEBRUARY 27, 2012 KA