Alice Kurian vs The Deputy Secretary
2021 Latest Caselaw 22322 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
 TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                      WP(C) NO. 15005 OF 2011
PETITIONER:

            ALICE KURIAN
            W/O.KURIAN.K.J, KIDARATHIL HOUSE,,
            N.S.H.MOUNT P.O., KOTTAYAM, KERALA.
            BY ADVS.
            SRI.P.A.AUGUSTIAN
            SRI.T.S.BIJU
            SRI.T.R.JAGADEESH
            SRI.V.K.SATHYANATHAN
            SMT.V.VIJITHA

RESPONDENTS:

    1       THE DEPUTY SECRETARY
            SPECIAL KUWAIT CELL, MINISTRY OF EXTERNAL AFFAIRS,
            I.S.I.L.BUILDING, 9,, BHAGWANDAS ROAD, OPP.SUPREME
            COURT,, NEW DELHI-110 001.
    2       UNION OF INDIA REPRESENTED BY
            ITS SECRETARY, MINISTRY OF EXTERNAL AFFAIRS,,
            NEW DELHI-110 001.
            BY ADV.GIRISH KUMAR, CGC



     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   09.11.2021,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.15005/2011

                                        2




                     P.V.KUNHIKRISHNAN, J.
                      --------------------------------
                     W.P.(C).No.15005 of 2011
               ----------------------------------------------
            Dated this the 09th day of November, 2021


                                 JUDGMENT

This writ petition is filed with following prayers:

i. Issue a writ of certiorari or any other writ quashing Ext.P15 as unjust and illegal. ii. Issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents to pay compensation of 6400 Kuwait Dinar or equivalent to the petitioner. iii. Issue a writ of mandamus or any other order order or direction directing the respondents to pay interest on the compensation at the rate of 18% from Jan 1997 the date which other applicants got UN compensation.

iv. Grant such other reliefs that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

2. The grievance of the petitioner is that she was

denied the eligible compensation declared by the United

Nations Security Council, which is available to the evictees in

connection with Iraq - Kuwait War. The petitioner earlier filed

a writ petition before this Court, and this Court, as per W.P.(C).No.15005/2011

Ext.P12 judgment, considered the matter in detail. It will be

better to extract the relevant portion of the judgment:

"6. The respondents have not disputed the genuineness and the authority of Exts.P3 and P4. From the above documents and based upon the averments supported by other documents and, as long as there is no specific denial regarding the receipt of the compensation claim from the petitioner, it has to be held that the petitioner had approached the authority concerned in time for the compensation. From Ext.P7, the petitioner was informed that no such claim is seen registered in her name in the State of Kerala as well as in the Ministry of External Affairs. The above information and assertion are diametrically opposed to the contents of Ext.P3 and Ext.P4. When the contents of Exts.P3 and P4 are not disputed, it can safely be concluded, especially, in the light of Ext.R1 that the claim of the petitioner might have lost with all the claims that were forwarded to MEA in the big bundles along with the acknowledgment receipts to the SKC, initially through diplomatic bags and subsequently by couriers. Therefore, in accordance with the notification of the UN Security Council, it can be held that the petitioner had rightly applied for the compensation as evidenced by Exts.P3 and P4. If that be so, the genuine claim of the petitioner cannot be denied for non failure on the part of the petitioner.

Therefore, it is for the respondents 1 and 2 to W.P.(C).No.15005/2011

consider the claim of the petitioner and to take as a comprehensive and compensatory measure, if her claim is genuine and bonafide. The claim of the petitioner cannot be denied on the ground that the procedure and working of the UN Security Council for giving the compensation was over. As stated earlier, the petitioner had put her claim in time and therefore, according to me, it is for the respondents to quantify the damages due to the loss of claim put forward by the petitioner in time and to award sufficient amount to the petitioner to compensate her, if it is found that her claim is genuine and bona fide.

7. But the petitioner has not approached the respondents with such a prayer. In the light of the above observation and finding, it is for the petitioner to approach the respondents by filing a proper representation with necessary averments and placing materials to claim such damages.

8. In the result, the petitioner is directed to make a representation as in the manner stated above and in case such a representation is filed before the respondent, within one month from today, the Ist respondent is directed to consider the same on merit and to dispose of it within three months from the date of receipt of such representation. The petitioner is directed to produce a copy of this writ petition and this judgment along with the said representation. The writ petition is disposed of accordingly." W.P.(C).No.15005/2011

3. Aggrieved by the same, the respondents filed a writ

appeal before this Court. The writ appeal was dismissed by a

Division Bench of this Court as per Ext.P14 judgment. The

relevant portion of the judgment is extracted hereunder:

"3. Noting the fact that there was not much in dispute as to the filing of the application by the writ petitioner claiming compensation in time and especially the stand of the appellants in Ext.R1(a), the possible indication of loss of the records due to the negligence of the appellants themselves, the learned Single Judge thought it fit to direct the appellants to consider the claim of the writ petitioner on merits and dispose it of within a time frame of three months.

4. Even after reconsideration of the entire materials, especially when we are, prima facie, satisfied that the writ petitioner had made the claim well in time and possibly entitled to it, and only due to the negligence of the appellants, her case was not considered in time, and as such the findings of the learned Single Judge cannot by any stretch of imagination be called as either illegal or perverse. We find no merit in the writ appeal and accordingly it is dismissed."

4. Thereafter Ext.P15 order was passed by the 1st

respondent. It will be better to extract the relevant portion of

Ext.P15 order:

W.P.(C).No.15005/2011

"The petitioner claims that she left Kuwait on 20 th September 1990 while she was in gainful employment of the Ministry of Public Health, Government of Kuwait. However the copy of certificate issued to Smt. Kurien by the Ministry of Public Health, Government of Kuwait submitted by the petitioner indicates that her employment with the Ministry of Public Health, Government of Kuwait was from 8.9.1977 to 1.8.1990. The war in the region broke out on 02.8.1990 i.e. after her employment with Ministry of Public Health, Government of Kuwait was over. Thus it clearly indicates that while leaving Kuwait she was not in gainful employment. Thus her claim is not genuine and is therefore rejected."

5. Aggrieved by Ext.P15 order, a contempt case was

filed before this Court as Cont. Case (C) No.719 of 2010, in

which it is stated that the directions in the judgment is not

complied with. This Court closed that contempt case observing

that there is no contumacious act on the side of the

respondents while passing Ext.P15 order. Aggrieved by

Ext.P15 order, this writ petition is filed.

6. Heard the counsel for the petitioner and the Central

Government Counsel.

7. I perused Exts.P12 and Ext.P14 judgments of this W.P.(C).No.15005/2011

Court. Thereafter I perused the findings in Ext.P15. I am of

the view that the findings in Ext.P15 order will not stand in

the light of the observations in the earlier judgments which

already became final. Moreover, it is not clear from Ext.P15

about the eligibility criteria to get compensation. Admittedly

the petitioner was in employment with the Ministry of Public

Health, Government of Kuwait from 08.09.1977 to 01.08.1990.

The war in the region broke out on 02.08.1990. Whether the

Ministry of Public Health, Government of Kuwait was working

after 01.08.1990 is not clear from Ext.P15. Similarly, whether

the compensation was paid only to those persons who were

working till 01.08.1990 is also not clear from Ext.P15. If any

victim who were not working in Kuwait after 01.08.1990, but

obtained compensation, the petitioner's claim is to be

considered in the light of the observation in Exts.P12 and P14

judgments of this Court. According to me, a reconsideration by

the competent authority among the respondents is necessary

in this case. Therefore, without expressing any further

opinion, Ext.P15 can be set aside and there can be a direction

to the competent authority among the respondents to

reconsider the matter.

W.P.(C).No.15005/2011

Therefore, this writ petition is disposed in the following

manner:

1. Ext.P15 order is set aside.

2. The competent authority among the

respondents will reconsider the claim of the

petitioner and pass appropriate orders in

accordance to law, as expeditiously as possible,

at any rate, within four months from the date

of receipt of a copy of this judgment.

Sd/-

                                        P.V.KUNHIKRISHNAN
JV                                             JUDGE
 W.P.(C).No.15005/2011





                APPENDIX OF WP(C) 15005/2011

PETITIONER EXHIBITS
Exhibit P1        COPY OF THE SALARY CERTIFICATE ISSUED
                  BY THE MINISTRY OFHEALTH AT KUWAIT.
Exhibit P1(A)     TRANSLATED COPY OF EXT.P1
Exhibit P2        COPY OF THE CLAIM DATED 12.10.1992
Exhibit P3        COPY OF THE RECEIPT BEARING SL NO.9144
                  DATED 27.10.1992
Exhibit P4        COPY OF THE COMPUTERISED NUMBER I.E.C

130522-UN REGISTRATION NUMBER GIVEN TO THE PETITIONER BY EMBASSY OF INDIA AT KUWAIT Exhibit P5 COPY OF THE UN COMPENSATION AWARD LETTER RECEIVED BY OTHERS FOR THE YEAR

Exhibit P6 COPY OF THE UN COMPENSATION AWARD LETTER RECEIVED BY OTHERS FOR THE YEAR

Exhibit P7 COPY OF THE LETTER NO.5291/B1/2001/NORKA DATED 23.03.2002 FROM NON RESIDENT KERALITES AFFAIRS (B) DEPARTMENT, THIRUVANANTHAPURAM Exhibit P8 COPY OF THE LETTER BEARING NO.UNCC/51/2000/992 DATED 23.06.2000 Exhibit P9 COPY OF THE ADVOCATE NOTICE DATED 21.05.2002 Exhibit P10 COPY OF THE REPLY LETTER NO.A.S.K.C./424/1/2000 (NF) DATED 31.5.2002 Exhibit P11 COPY OF THE LETTER NO.KUW/CONS/424/2/2002 DATED 13.11.2002 Exhibit P12 COPY OF THE JUDGMENT DATED 05.06.2009 IN OP 21850/2002 Exhibit P13 COPY OF THE REPRESENTATION DATED 20.06.2009 Exhibit P14 COPY OF THE JUDGMENT DATED 11.11.2009 IN WA NO.2435 OF 2009 Exhibit P15 COPY OF THE LETTER NO.Q/SKC/424/11/09 DATED 16.12.2009 Exhibit P16 COPY OF THE JUDGMENT DATED 19.01.2011 IN CONTEMPT CASE © NO.719/2010