Jyoti Sateeja vs International Committee Of The ...
2015 Latest Caselaw 1988 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) 2824/2012

                                                    Decided on: 09.03.2015
IN THE MATTER OF :
JYOTI SATEEJA                                        ..... Plaintiff
                          Through: Mr. Rajesh R. Dubey, Advocate with
                          Mr. Pawan Upadhyay and Mr. Nishant Kumar,
                          Advocates

                          versus

INTERNATIONAL COMMITTEE OF THE RED CROSS & ORS
                                             ..... Defendants
                  Through: Mr. Trideep Pais, Advocate with
                  Mr. Radhika Kolluru, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

I.A. 20450/2014 (by the defendant No.1 under Order I Rule 10(2) read with Section 151 CPC)

1. This application has been filed by the defendant No.1 praying

inter alia that the names of defendants No.2 and 3 be dropped from

the array of parties.

2. The plaintiff has instituted the present suit against the

defendants praying inter alia for a decree of declaration to the effect

that the service regulations of the defendant No.1 governing her

service are inapplicable to her since she has not signed the same. She

further prays for a decree of declaration that her service conditions be

declared as violative of the public policy in India and therefore, null

and void. Lastly, the plaintiff seeks damages for a sum of `50 lacs,

against the defendants.

3. Counsel for the defendant No.1 submits that the defendant No.1

is the Regional Delegation of the International Committee of the Red

Cross in New Delhi. At the time when the plaintiff's services were

terminated, the defendant No.2 was working on the post of

Administrator and the defendant No.3 was working on the post of

Head of Delegation of the defendant No.1 and presently, they are

stationed at the Regional Delegations of the defendant No.1, outside

India. Learned counsel states that the defendants No.2 and 3 are

foreign nationals, and they have been extended the very same

privileges and immunities that have been extended by Government of

India to the defendant No.1 as prescribed in Section 7(b) and Section

8 of Article II and Section 18 of Article V of the United Nations

(Privileges and Immunities) Act, 1947 (hereinafter referred to as 'the

Act'). Copies of the relevant provisions have been enclosed with the

present application. Learned counsel argues that in view of the

immunity enjoyed by the defendants No.2 and 3 for the acts

performed by them in their official capacity, they are immune from

any legal proceeding, including the present one and therefore, their

names ought to be dropped from the array of defendants.

4. A reply in opposition to this application has been filed by the

plaintiff. Counsel for the plaintiff states that simply because the

defendants No.2 and 3 were working in different official capacities in

the defendant No.1 and are foreign nationals would not confer any

immunity on them as claimed by the other side. He alludes to the

allegations levelled against the defendants No.2 and 3 which are to the

effect that when they were working in the New Delhi office of the

defendant No.1, they had indulged in racial discrimination towards the

plaintiff and submits that this in itself would be sufficient ground to

decline their request of dropping their names from the array of the

defendants. As for the relevant Sections of the United Nations

(Privileges and Immunities) Act, 1947 referred to by the counsel for

the defendant No.1, it is denied by learned counsel for the plaintiff

that the said defendants are immune from the legal process in respect

of acts performed by them in their official capacity. However, the

application of the relevant Sections of the Act to the officers of the

defendant No.1 is not disputed by him.

5. The Court has heard the arguments advanced by the counsels

for the parties and carefully considered their submissions. The relevant

provisions of law that the counsel for the defendant No.1 has relied on

to seek deletion of the names of defendants No.2 & 3 from the array

of defendants is the Gazette Notification dated 16.06.1986 issued by

the Ministry of External Affairs, Government of India which is

reproduced herein below for ready reference:-

"MINISTRY OF EXTERNAL AFFAIRS New Delhi, the 16th June, 1986 NOTIFICATION S.O. 361(E). - Whereas in pursuance of the exchange of letters between the Government of India and the International Committee of the Red Cross in India, it is necessary to accord the Regional Office of the said International Committee, for a period of five years, privileges, and immunities in India similar to those contained in Section 7(b), 8 and 18 of the Schedule to the United Nations (Privileges and Immunities) Act, 1947 (46 of 1947);

Now, therefore, in exercise of the powers conferred by Section 3 of the said Act, the Central Government hereby declares that the provisions of section 7(b), 8 and 18 of the said Schedule shall apply, mutatis mutandis, to the Regional Office of the International Committee of the Red Cross in India and so its officers, subject to the following modifications namely:-

Modifications

1. In Article II, -

(a) in Section 7, in the opening portion and in clause (b), for the words "United Nations", the words "Regional Office of the International Committee of the Red Cross" shall be substituted;

(b) in section 8, for the words, "United Nations", wherever they occur, the words "Regional Office of the International Committee of the Red Cross" shall be substituted.

2. In Article V, -

(a) in Section 18, -

(i) in the opening portion, for the words "United Nations", the words "Regional Office of the International Committee

of the Red Cross" shall be substituted;

(ii) in clause (b), for the words "United Nations", the words, "International Committee of the Red Cross" shall be substituted;

(b) the following Explanation shall be added at the end, namely:-

"Explanation:- Nothing in this section shall apply to an officer of the said Regional Office, who is an Indian national or a person recruited in India."

3. This notification shall remain in force for a period of five years from the date of its publication in the Official Gazette.

[D-11451(16/2)85] S. HAIDER, Chief of Protocol"

6. Further, vide letter dated 15.06.2012 addressed by the Ministry

of External Affairs to the defendant No.1, it was conveyed that the

Government of India had agreed to extend the privileges and

immunities enjoyed under the Act to the Regional Office of the

defendant No.1 in the following manner:-

"2. The Government of India agrees to extend to the Regional Office of the International Committee of the Red Cross Privileges and Immunities as laid down in Section 7(b) and Section 8 of Article II and Section 18 of Article V of the United Nation (Privileges and Immunities) Act, 1947 (46 of 1946) for a further period of two years with effect from 01.01.2012.Indian nationals and persons locally recruited in India, if employed by the Committee, will not be eligible for these privileges and immunities."

7. The Gazette Notification dated 16.6.1986 issued by the

Government of India read with the letter dated 15.06.2012 makes it

abundantly clear that the defendant No.1 has been accorded the same

privileges and immunities in India as were extended by the

Government of India to the officials of the United Nations under the

United Nation (Privileges and Immunities) Act, 1947.

8. Coming to the relevant provisions of the Act, the attention of the

Court has been drawn to Sections 7, 8 and 18 that deal with the

assets, income and property of the United Nations, the exemptions

given in respect of excise duty and taxes and the immunities enjoyed

by its officials. The relevant extracts of the aforesaid provisions are

reproduced herein below:-

"Section 7: The United Nations, its assets, income and other property shall be:

(a) exempt from all direct taxes; it is understood, however, that the United Nations will not claim exemption from taxes, which are, in fact, no more than charges for public utility services;

(b) exempt from customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the United Nations for its official use. It is understood, however, that articles imported under such exemptions will not be sold in the country into which they were imported except under conditions agreed with the Government of India.

XXX Section 8 While the United Nations will not, as a general rule,

claim exemption from excise duties and from taxes on the sale of movable and immovable property which form part of the price to be paid, nevertheless when the United Nations is making important purchases for official use of property on which such duties and taxes have been charged or are chargeable. Members will, whenever possible, make appropriate administrative arrangements for the remission or return of the amount of duty or tax.

XXX Section 18 Official of the United Nations shall

(a) be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity

(b) be exempt from taxation on the salaries and emoluments paid to them by the United Nations;

(c) be immune from national service obligations.

9. The aforesaid Sections clearly indicate that officers of the

defendant No.1 enjoy certain exemptions with respect to direct taxes,

custom duties, etc., and they are immune from the legal process in

respect of words spoken or written and all acts performed by them in

their official capacity.

10. In the instant case, it is undisputed that the plaintiff has

instituted the present suit against the defendants challenging the

termination of her services with the defendant No.1. The allegations

levelled by her against the defendants No.2 and 3 are for the acts of

omission/commission allegedly committed by them in the course of

their discharging the official duties as Administrator and Head of

Delegation, respectively. Therefore, the said provisions of law and the

exemptions granted under the Act would come into play and they

would be entitled to extension of immunity from the legal process.

11. Though there is no specific averment made in the reply filed by

the plaintiff in opposition to the present application, learned counsel

for the plaintiff relies on Section 20 of the Act to contend that the

privileges and immunities granted to the defendants No.2 and 3 are

not for their personal benefit and the Secretary General of the United

Nations is empowered to waive the said immunity in any case where,

in his opinion, the same impedes the course of justice and it can be

waived without prejudice to the interests of the United Nations.

12. Learned counsel for the plaintiff is however unable to state as to

whether prior to instituting the suit, the plaintiff had approached the

Head office of the defendant No.1/International Committee of Red

Cross situated at Geneva for seeking waiver of the immunity granted

to the defendants No.2 and 3 by the Government of India and if so,

the decision taken thereon. In such circumstances, without first

establishing that she had sought any such waiver from the competent

authority, the plaintiff cannot invoke the said provision to claim that

the Head office of the defendant No.1 was under an obligation to suo

motu waive the immunity enjoyed by the defendants No.2 and 3 for

acts performed by them in their official capacity, while discharging

their duties in the New Delhi office of the defendant No.1.

13. Further, if there are allegations of racial discrimination levelled

by the plaintiff against the defendants No.2 and 3, then also the onus

would lie on her to substantiate the same in the course of evidence but

that itself would not be a ground to permit impleadment of the

defendants No.2 and 3 when they have been conferred an immunity

by the Government of India for acts done by them in their official

capacity.

14. Moreover, a perusal of the reliefs prayed for by the plaintiff

reveals that the first two reliefs are not even directed against the

defendants No.2 and 3 at all. As for the third relief of damages and

compensation that the plaintiff has claimed against the defendants in

general, a perusal of para 32 of the plaint reveals that she has

assessed the damages for breach of contract at `40 lacs, for the loss

of reputation at `8 lacs and for causing mental agony and harassment

at `2 lacs.

15. Learned counsel for the defendant No.1 states that if the Court

ultimately decides to award damages in favour of the plaintiff, then

the defendant No.1 is ready and willing to bear the same. This will

secure the interest of the plaintiff in respect of the third relief.

16. In view of the aforesaid facts and circumstances, the present

application is allowed. The defendants No.2 and 3 are permitted to be

dropped from the array of defendants. The plaintiff is directed to file

an amended memo of parties within two weeks with a copy to the

other side.

                                                    (HIMA KOHLI)
MARCH 9, 2015                                          JUDGE
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