Management Of American Community ... vs Ram Singh
2021 Latest Caselaw 2649 Del

                                                        Digitally Signed By:DEVANSHU
                                                        JOSHI
                                                        Signing Date:27.09.2021 14:47:37


$~49
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Date of decision: 24th September, 2021
+        C.R.P. 69/2021 and CM APPL. 33516/2021, 33517/2021
     MANAGEMENT OF AMERICAN COMMUNITY SUPPORT
     ASSOCIATION                                       ..... Petitioner
                     Through: Mr. Deepak Dhingra, Advocate.

                          versus

        RAM SINGH                                            ..... Respondent
                          Through:    None.

        CORAM:
        JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through video conferencing.

2. The present petition has been filed by the Petitioner/Management of American Community Support Association ("hereinafter MACSA") which claims to be an Instrumentality of the Government of the United States of America. The two orders passed by the Executing Court, which are under challenge in the present petition, are- order dated 25th November, 2019 in Execution No. 5813/2016 titled Ram Singh v. Management of American Community Support Association, and order dated 1st March, 2021 in Ex. Misc. No. 01/2020 titled Ram Singh v. Management of American Community Support Association.

3. The Respondent/Workman, Sh. Ram Singh, was working as a driver with the MACSA, and he had filed a claim under the Industrial Disputes Act, 1947 before the Industrial Dispute Tribunal, Karkardooma Court, Delhi in 2005. An ex-parte Award was passed on 25th September, 2006 in favour

Digitally Signed By:DEVANSHU JOSHI Signing Date:27.09.2021 14:47:37

of the Respondent/Workman in I.D. No. 19005 titled The Management of American Community Support Association v. Sh. Ram Singh. In the said Award, the Respondent/Workman was directed to be reinstated with continuity of services and full back wages. On the strength of the said Award, the Workman sought a sum of Rs. 15 lakhs from Petitioner, vide Legal Notice dated 10th January, 2008. The operative portion of the Award dated 25th September, 2006 reads as under:

"xxx xxx xxx In order to prove his case, the workman Ram Singh has examined himself as WW1. In support of his evidence, he has filed his affidavit Ex.WW1/A and proved the documents to disbelieve the uncontroverted statement of WW1. Sh. Ram Singh, therefore, from the statement of the workman and the documents filed by him, in my considered opinion, the workman has proved that on 7.12.2004 his services were illegally terminated by the management. So, the workman Sh. Ram Singh is ordered to be reinstated with continuity of services & full back wages. The Award is passed. Ahlmad is directed to send the six copies of this Award to the appropriate Govt. The file be consigned to record room."

4. Notice of the said Award was given to MACSA. However, thereafter, the Respondent/Workman approached the Embassy from time to time and took several payments on account of terminal benefits to the tune of Rs. 2,56,641.65/-, Rs.1,05,038/-, and Rs.35,042.65/- between the years 2007 and 2009. However, after accepting all these amounts, the Respondent/Workman approached the Executing Court to seek enforcement of the Award dated 25th September, 2006.

5. The submission of Mr. Dhingra, ld. Counsel for MACSA is that since

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the Respondent/Workman has accepted the various amounts as full and final settlement post the passing of the Award dated 25th September, 2006, the said Award was no longer executable. He submits that these objections have also been raised before the Executing Court. However, the same have not been accepted and have, in fact, been rejected by the Executing Court. Mr. Dhingra, ld. Counsel, further relies upon the judgment in Ram Naresh v. Delhi Administration, (2005) ILR 2 Delhi 1041 to argue that a foreign mission would not be an industry in terms of Section 2(j) of the Industrial Disputes Act, 1947 (hereinafter "Act").

6. The certificate issued by the Embassy of the United States of America in favour of the MACSA is dated 18th August, 2010, and reads as under:-

"This is to certify that the American Community Support Association (ACSA) is an Instrumentality of the Government of the United States of America (US Government), operating under the auspices of the U.S. Government's diplomatic mission in India ("U.S. Embassy"). ACSA is part of the Embassy of the United States of America and was established in the years 1987 under the authority of the United States Secretary of State. ACSA conducts its activities within the premises of the American Embassy subject to the oversight of the Ambassador of the United States of America to India and renders community services primarily to expatriates being United States nationals and citizens serving the U.S. Government in India. ACSA is governed by the Department of State, Government of United States of America regulations."

7. The Award dated 25th September, 2006 was an ex parte award. However, thereafter when the Respondent/Workman approached the US Embassy, he has accepted the various amounts paid as full and final settlement, qua certain dues.

Digitally Signed By:DEVANSHU JOSHI Signing Date:27.09.2021 14:47:37

8. In Ram Naresh (supra), the Court has observed (Sikri J.) as under:

"xxx xxx xxx

17. The aforesaid functions are clearly sovereign in nature. In fact a diplomatic mission is representative of the sending State in the receiving State and in the process is dealing with the receiving State in the capacity of sending State. Thus in its dealing it is to be treated as the sovereign State and the functions relate to the negotiations and dealing of the States in the realm at international relations.

18. It is a common knowledge that nearly all states today are represented in the territory of foreign states by diplomatic envoys and their staffs. Such diplomatic missions are of a permanent character, although the actual occupants of the office may change from time to time. In the case of the United States Diplomatic and Consular Staff in Tehran, ICJ 1980, 3 para 86, the International Court of Justice described the rules of diplomatic law as 'a self-contained regime which, on the one hand, lays down the receiving state's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving state to counter any such abuse.'

19. These are definitely the sovereign functions of the States. It is because of this reason that the diplomatic agents (Head of the Mission or a member of the diplomatic staff of the mission) are granted various immunities. With such a function of the diplomatic mission, by no stretch of imagination it can be termed as 'industry' as defined in Section 2(j) of the ID Act. The

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authoritative pronouncement on definition of 'industry' is contained in the seven Judge Bench judgment of the Supreme Court in the case of Bangalore Water Supply & Sewerage Board Vs. A.

Rajappa and others reported as MANU/SC/0257/1978 : (1978) 2 SCC 213. In that case the Supreme Court broadened the contours and scope of "industry" in widest possible terms and laid down the following triple test:

Where there is (i) systematic activity, (ii) organised by co-operation between employer and employee (the direct and substantial element is chimerical), and

(iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss), prima facie, there is an industry in the enterprise."

9. As per the above judgement, foreign missions perform sovereign functions and support the diplomatic staff and agents, and hence, they would not be covered by the definition of `industry' under Section 2(j) of the Act. Accordingly, the issues raised in this petition deserve consideration.

10. Issue notice to the Respondent/Workman. Let the Respondent/Workman be also served through the counsel appearing for him before the Executing Court. Let Affidavit of service be filed in respect of the same.

11. In the meantime, the execution proceedings shall remain stayed. No condition for deposit in respect of the stay is being imposed at this stage. The same shall be considered, if required, after notice is served upon the Respondent/Workman.

Digitally Signed By:DEVANSHU JOSHI Signing Date:27.09.2021 14:47:37

12. List before the Registrar for completion of service and pleadings on 22nd November, 2021.

13. List before the Court on 6th January, 2022. The digitally signed copy of this order, duly uploaded on the official website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority/entity or litigant.

PRATHIBA M. SINGH JUDGE SEPTEMBER 24, 2021 MR/AD