Central Administrative Tribunal - Delhi
Raj Kumar vs M/O External Affairs on 3 July, 2025
1
(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 2190/2016
with
O.A. No. 3469/2018
Reserved on: 27.05.2025
Pronounced on: 03.07.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
1. OA No. 2190/2016
Raj Kumar, Son of Shri Roop Narain Singh,
R/o Vill-Khardihapoor, Namidaag,
Dist-Palamu, Jharkhand.
...Applicant
(By Advocate: Mr.Rajeeva Ranjan Rajesh)
Versus
1. Union of India,
Through Secretary,
Ministry of External Affairs,
Govt. of India,
New Delhi.
2. The Hon'ble Ambassador,
Embassy of India,
Kathmandu, Nepal.
3. The D.C.M.,
Indian Embassy,
Kathmandu, Nepal.
4. The Consul General of India,
Birgunj, Nepal.
2
(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018
...Respondents
(By Advocate: Mr. S. N. Verma and Mr. M. K. Bhardwaj)
2. OA No. 3469/2018
Vijay Kumar Singh,
Son of Shri Rameshwar Singh,
R/o Village-Atrauli, P.S.- Obra,
Dist. Aurangabad.
(By Advocate: Mr. Rajeev Ranjan Rajesh)
Versus
1. Union of India,
Through Secretary,
Ministry of External Affairs,
Govt. of India,
New Delhi.
2. The Hon'ble Ambassador,
Embassy of India,
Kathmandu, Nepal.
3. The D.C.G. & H.O.C.,
Consulate Office,
Birgunj, Nepal.
4. The Consul General of India,
Birgunj, Nepal.
(By Advocate: Mr. S. N. Verma and Mr. M. K. Bhardwaj)
3
(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
Since a common question of facts and law is involved in the present O.A.s, they are being disposed of through this common order. However, for the sake of brevity, the facts are being extracted primarily from OA No. 2190/2016.
2. In O.A. No. 2190/2016, the applicant prays for the following reliefs:
"[a] quash the letter dated 06.08.2015 sent to the Police Station Incharge, P.S. Raxaul, East Champaran, requesting to register a case against the Applicant and the consequent proceedings ensuing from this letter [b] restore employment of the Applicant in the Indian Embassy Bungalow, Raxaul; and
(c) pass such other, further order direction as this Hon'ble Tribunal may deem fit and proper in the facts"
3. Narrating the facts of the case, learned counsel for the applicants submitted as under:
3.1. The applicant was appointed as a Mali-cum-
Chowkidar at the Indian Embassy Bungalow, Raxaul on 4 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 03.09.2001, by way of an appointment letter issued by the Chancery. The appointment letter clearly stipulated that upon successful completion of probation, his services could be terminated on one month's notice or payment of one month's salary in lieu thereof. It further mentioned that the applicant would retire upon attaining the age of 60 years, thereby reflecting the permanent nature of the employment. 3.2. The applicant served the Embassy faithfully and was later functioning as a Supervisor, having completed approximately 13 years of continuous service. During this entire period, there was no charge of misconduct, no adverse remarks, and no disciplinary proceedings initiated against him.
3.3. On 06.08.2015, the applicant was abruptly dismissed from service by an Office Memorandum issued by the Consul General, without any prior notice, show-cause, or enquiry. The memorandum stated that it would be treated as one month's notice of termination. The applicant received no opportunity to respond to any allegations or clarify his position.
5(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 3.4. The dismissal of the applicant is linked to an incident involving a longstanding Hanuman Temple situated within the 50-acre unfenced premises of the Indian Embassy campus at Raxaul. The temple has been in existence for more than 50 years, and its presence was well known to the embassy authorities. A Nag-Panchami Mela is also traditionally held there, and members of the public have been granted access over the years.
3.5. Learned counsel for the applicant further submitted that tiles were affixed within the temple area, not by the applicant, but by some devotees. The applicant had no role in this, and in any case, the modifications were well within the area already occupied by the temple. Despite this, the Consul (Consular, Political and States) on the same day (06.08.2015) got an FIR lodged against three individuals, including the applicant, for alleged unauthorized construction in front of the temple.
3.6. Learned counsel argued that the letter requesting registration of the FIR itself acknowledges the existence of the temple on government property and the fact that the 6 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 public had access to it. The letter alleges that marble had been laid outside the temple area. However, no independent inquiry or investigation was conducted to determine the applicant's involvement, nor was he given a chance to respond.
3.7. Learned counsel for the applicant contended that the action taken by the Consul General in dismissing the applicant is arbitrary, disproportionate, and in gross violation of the principles of natural justice. The action was taken without issuing any show-cause notice, conducting any disciplinary inquiry, or recording any reason as to why such procedure was not followed.
3.8. Learned counsel further submitted that the applicant invokes Article 311(2) of the Constitution of India, which states that no civil servant shall be dismissed, removed, or reduced in rank without being given a reasonable opportunity to be heard. This constitutional safeguard is meant to ensure fairness and accountability in disciplinary actions involving public servants. While Article 311(2)(b) provides certain exceptions, such as when it is not 7 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 reasonably practicable to hold an enquiry, such exception must be justified by recorded reasons, which are completely absent in the present case. Hence, the learned counsel for the applicant submitted that this case does not fall under the exception clause, and the dismissal is therefore untenable.
3.9. Learned counsel for the applicant supports his contentions with the following judicial precedents:
(i) Union of India v. Tulsiram Patel, (1985) 3 SCC 398 wherein the Hon'ble Supreme Court held that dismissal without enquiry is permissible only in rare cases, and the reasons for bypassing the enquiry must be clearly recorded in writing.
(ii) Reena Rani v. State of Haryana, (2012) 10 SCC 153 wherein the Hon'ble Supreme Court reiterated the mandatory nature of Article 311(2) and held thatdismissal without affording a hearing is impermissible.
(iii) Ex-Constable Chhotelal v. Union of India, (2000) 10 SCC 196 wherein the Hon'ble Supreme Court held that 8 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 natural justice must be followed, and exceptions under Article 311(2)(b) cannot be invoked casually.
(iv) Chandigarh Administration v. Ajay Manchanda, (1996) 3 SCC 753 wherein the Hon'ble Supreme Court emphasized that even in contractual or notice-based employment, long service and permanent job character require fair hearing and just cause before termination.
3.10. Learned counsel for the applicant further argued that even if the rules allow termination by notice, the long tenure, permanent nature of the appointment, and absence of any misconduct or prior warning make the punishment grossly disproportionate; hence, arbitrary and illegal. The action also reflects a discriminatory and high-handed approach, targeting a lower-ranked employee for an issue that had existed for decades, under the full knowledge of higher authorities. Furthermore, learned counsel submitted that the dismissal has resulted in grave hardship to the applicant, who is middle-aged, has dependent family members, and has lost all means of livelihood without any 9 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 retirement benefits, despite his honest and dedicated service of 13 years.
3.11. On behalf of the applicant in O.A. No. 3469/2018, learned counsel for the applicants submitted that neither the applicant has been made an accused in the case, nor there is any allegation against him in the FIR.
4. Opposing the grant of relief, learned counsel for the respondents submitted that the applicant was appointed as a locally recruited Mali-cum-Chowkidar at the Indian Embassy Bungalow, Raxaul on 03.09.2001 under a written contract issued by the Embassy of India, Kathmandu. The terms of the contract explicitly allowed termination of services by either party with one month's notice (Clause 2 of the contract). Owing to repeated misconduct, dereliction of duty, and security breaches, the Consulate General of India, Birgunj terminated the applicant's services vide an Office Memorandum dated 06.08.2015, giving effect to the termination from 06.09.2015, in accordance with the contractual provisions.
10(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 4.1. Learned counsel further submitted that the applicant was either directly involved in or complicit with unauthorized construction activities on government premises and failed to report such activities, constituting a breach of his duties. An FIR was lodged against the applicant and others for illegal encroachment and for organizing an unauthorized public gathering on embassy land.
4.2. Further, learned counsel submitted that the key legal issues raised in the matter include: (i) whether the applicant's termination violated principles of natural justice or Article 311 of the Constitution, and (ii) whether the Central Civil Services (Classification, Control and Appeal) Rules, 1965, or other service Rules such as the Departmental Inquiries Act, 1972, are applicable to a locally recruited contractual employee. On this aspect, learned counsel for the respondents argued that as per Ministry of Home Affairs Notification No. SRO 609 dated 28.02.1957, the CCS (CCA) Rules, 1965 are not applicable to locally recruited staff in Indian diplomatic missions abroad. Moreover, since the applicant was neither a civil 11 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 servant nor holding a civil post under the Union Government, Article 311 of the Constitution does not apply to him. His service conditions were solely governed by the contractual agreement, not by any statutory service rules. 4.3. Furthermore, learned counsel for the respondents contended that the termination was carried out in compliance with contractual terms, based on unsuitability arising from repeated warnings and misconduct. No departmental inquiry was required under these circumstances. The decision to terminate was not unilateral but was made by a committee of officers from the Consulate and Embassy after due deliberation. The lodging of an FIR and ongoing investigation further substantiated the misconduct charges.
4.4. Concluding the arguments, learned counsel submitted that the present Original Application is not maintainable before this Tribunal under the Administrative Tribunals Act, 1985, since the applicant is not covered within the definition of a civil servant and is, therefore, outside the Tribunal's jurisdiction.
12(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018
5. Heard learned counsel for the respective parties and perused the pleadings available on record.
6. ANALYSIS 6.1 We now proceed to examine the maintainability of the present case in light of the provisions under the Administrative Tribunals Act, 1985. The Preamble of the Act provides:
"An Act to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of [any corporation or society owned or controlled by the Government in pursuance of Article 323A of the Constitution] and for matters connected therewith or incidental thereto."
6.2 The relevant definitions under the Act that are pertinent to the present matter are as follows:
"3.Defnitions:
(k) "post" means a post within or outside India;
(p) "Service" means service within or outside India;
(q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the 13 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 case may be, of any corporation [or society] owned or controlled by the Government, as respects-
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever.
(r) "service rules as to redressal of grievances," in relation to any matter, means the rules, regulations, orders, or other instruments or arrangements as in force for the time being with respect to redressal, otherwise than under this Act, of any grievances in relation to such matters."
6.3 From the above, it is evident that the Tribunal has jurisdiction to adjudicate matters relating to the recruitment and service conditions of persons appointed to public services and posts in connection with:
the affairs of the Union or a State,
any local or other authority within India or under the
control of the Government of India,
any corporation or society owned or controlled by the
Government.
6.4 However, in the present case, what falls for our consideration is to examine whether the services rendered 14 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 by the applicants under a contractual arrangement with a High Commission or Diplomatic Mission/Consul General fall(s) within the scope of the Administrative Tribunals Act, 1985, or whether such matters are to be governed under relevant Labour Laws applicable to contractual employees? 6.5 The terms and conditions stipulated in the applicant's appointment letter dated 03.09.2001, are reproduced below:-
"In exercise of the powers delegated to HOM, Shri Raj Kumar s/o Shri Roop Narayan Singh is hereby appointed as Mali-cum-Chowkidar in the Indian Embassy Bungalow, Raxaul with effect from the forenoon of 3rd September, 2001. The terms and conditions of his service are as under:
2. Shri Raj Kumar will be on probation for a period of six months during which period his services will be liable to termination any time without notice. No additional payment except the normal pay for the period be worked till termination of his service is payable. On successful completion of probation period, his services may be terminated on one month's notice from either side or on payment of one month's pay in lieu thereof
3. During his employment with this Mission, Shri Raj Kumar will be governed by the rules and regulations prescribed by competent authorities, from time to time.
4. He will be looking after work as allotted to him from time to time.
5. Pay of Shri Raj, Kumar has been fixed at NRs. 1975/-
only per month in the pay scale of NRs 2975-5-3595-42- 3731. Annual increment may be granted subject to satisfactory service during the preceding period of 12 months. Besides this monthly pay, no other allowances 15 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 ach as Compensatory Allowances, Deaness Allowances, House Rent Allowance or rent accommodation in lieu there of, conveyance allowance etc. are admissible to him.
6. Normal working hours will be from 0900 hours 1730 hours from Monday to Friday. Saturday and Sunday will remain closed as weekend off. However working days and working hours flexible and in exigencies, Shri Raj Kumar may be required to work beyond office hours and/or on weekly off days.
7 Shri Raj Kumar will be required to undergo medical examination with a view to assess his medical fitness within one month of his appointment to the post. 8 The Embassy of India, Kathmandu would be in no way be responsible for any medical expenditure whatsoever that Shri Raj Kumar may incur during his service with the Mission.
9. Shri Raj Kumar will be eligible to following kind of leave with full pay;
a) Annual leave: for 30 days after each completed calender year of service commencing on the 1" of January.
b) Sick Leave for 20 days after each completed calender year of service commencing on the 1st of January subject to the production of a medical certificate from a recognized medical practitioner.
(i) Leave cannot be claimed as a matter of right. Discretion is reserved by the HOM to refuse or revoke leave of any kind at any time in the interest of public Service.
(ii) The annual/sick leave due in respect of a particular year may be availed of any time in the following year and shall lapse unless availed of.However, in the case of annual leave applied for in time but being refused due to exigency of work HOM/HOP may at his discretion allow the leave so requested to be availed of in the first three months of the succeeding year.
10. Shri Raj Kumar will retire from service on superannuation on his attaining the age of 60 years.
11. Shri Raj Kumar is not entitled to any terminal benefits such as pension, leave encashment etc., except for the gratuity as may be admissible under the rules" 16
(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 6.6 It is undisputed that the applicants were employed and continued in service under the contractual arrangement based on the above-stated terms. It is also clear that the applicants were disengaged in accordance with Clause 2 of their contract.
6.7 We must also take note of Section 28 of the Administrative Tribunals Act, 1985, which provides:-
"28. Exclusion of jurisdiction of courts except the Supreme Court under Article136 of the Constitution- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, [no court except -
(a) the Supreme Court ; or
(b) any industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have], or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters."
6.8 In this backdrop, the crucial question is whether a High Commission or Diplomatic Mission comes within the jurisdictional purview of this Tribunal, particularly in terms of the provisions of the Administrative Tribunals Act, 1985 17 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 read with Article 12 and Article 311 of the Constitution of India.
6.9 The scope of the Tribunal's jurisdiction is provided under Section 14 of the Administrative Tribunals Act, 1985. Relevant portions of Section 14(b) and (c) are as under:-
"b) all service matters concerning-
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or
(iii) a civilian [not being a member of an All-India Service or a person referred in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government;
(c) all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause
(ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment."
6.10 On a plain reading of these provisions, it is evident that the applicants were neither members of an All India Service nor appointed to any civil post under the Union Government. Whether the High Commission or Diplomatic 18 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 Missions fall within the expression "other authority" as mentioned under the Act, and thereby amenable to the Tribunal's jurisdiction, requires careful analysis, which we address as under:-
6.10.1 In University of Madras v. Shanta Bai (AIR 1954 MAD 67), the Hon'ble Madras High Court evolved the principle of 'ejusdem generis' i.e., of the like nature. It means that only those authorities are covered under the expression 'other authorities' which perform governmental or sovereign functions. Further, it cannot include persons, natural or juristic.
6.10.2 We are conscious of the fact that the Constitution Bench of the Hon'ble Supreme Court, in Managing Director, ECIL, Hyderabad & Others v. B. Karunakar & Others, (1993) 4 SCC 727, followed and subsequently explained in later decisions that the doctrines of reasonable opportunity and natural justice are not mere mechanical or ritualistic formalities. Rather, they are substantive principles evolved to uphold the rule of law and to facilitate the assertion of legitimate rights by individuals.19
(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 The Hon'ble Court categorically held that these principles are not to be treated as procedural incantations with magical effects invoked in every situation, irrespective of the context, but must be applied meaningfully and purposefully, in accordance with the facts and circumstances of each case.
6.10.3 In T.Senthilkumari vs. The Deputy High Commission (W.P.No.10389 of 2024) decided on 12.02. 2025, the Hon'ble Madras High Court has held as under:
"9. It is true that the office of the respondent management is that of the Deputy High Commission which is the agent of the foreign sovereign and enjoys immunity. Such agent cannot be sued without the express permission of the Central Government as per Section 86 of the Code of Civil Procedure. However, with reference to the remedies under the Industrial Disputes Act, 1947, already, the question has been considered by the Constitution Bench by the Hon'ble Supreme Court of India in H.H. The Maharaja Sahib Shri Bhagwat Singh Bahadur of Udaipur Vs. State of Rajasthan and Ors. 1963 SCC OnLine SC 119 , where under, it was held that the remedy before the Industrial Tribunal or the Labour Court, will not fall within the mischief of the same and it cannot be deemed to be a Court for that purpose and therefore, held that in cases of Industrial Disputes, the employees can file disputes as against foreign sovereign also.
10. This apart, the Diplomatic Relations (Vienna Convention) Act, 1972 has been enacted by the Parliament to give effect to the Vienna Convention on Diplomatic Relations, 1961. According to Section 2 of the said Act, the various provisions set out in the schedule to the Act of the Vienna Convention on Diplomatic Relations, adopted by the United Nations Conference on Diplomatic Intercourse and Immunities on the 14th day of April, 1961, shall have 20 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 the force of law in India. The schedule contains the provisions. Article 33 is extracted hereunder for ready reference:-
"1. Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
2. The exemption provided for in paragraph 1 of this article shall also apply to private servants who are in the sole employ of diplomatic agent, on condition:
(a) that they are not nationals of or permanently resident in the receiving State; and
(b) that they are covered by the social security provisions which may be in force in the sending State or a third State.
3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.
4. The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.
5. The provisions of this article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future."
(emphasis supplied) Therefore, in order to claim exemptions from the social security legislations and provisions, the exemption provided for in paragraph No.1 of the article is not applicable to the nationals of the receiving state. In respect of such employees, to whom the exemption provided in paragraph No.2 of the article does not apply, then, the diplomatic agent shall observe obligations which the social security provisions of the receiving State impose upon employers. In such view of the matter, no immunity 21 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 can also be claimed by the management.
Accordingly, I answer the question.
Question No.iii:-
11. Once the non-employment is illegal, the petitioner will be entitled for reinstatement into service. As far as the back wages are concerned, considering the fact that the petitioner was put in the service from the year 2008 till the year 2018 and that from the year 2018 till date, the litigation is pending, I hold that the petitioner will be entitled for 30% of the back wages. However, the petitioner will be entitled for continuity of service and all other attendant benefits."
6.10.4 In the case of Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489, the Hon'ble Supreme Court held that if a body is an agency or instrumentality of the government, it may qualify as an "authority" within the meaning of Article 12 of the Constitution, regardless of whether it is a statutory corporation, a government company, or a registered society.
The Court laid down the following illustrative tests to determine whether a body or agency is an instrumentality of the State:
a) Financial resources of the State are the chief funding source of the body, i.e., the entire share capital of the corporation is held by the government.22
(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018
b) The existence of deep and pervasive State control over the functioning of the body.
c) The functions discharged by such a body or agency are of public importance and closely related to governmental functions.
d) The functions performed are governmental in essence, even if not traditionally regarded as exclusive functions of the State.
e) The body or corporation has been created by transferring a department of the government to it.
f) The agency enjoys a monopoly status, which is conferred and protected by the State.
6.10.5 Applying the said tests, we observe that statutory bodies are created by a law passed by Parliament or a legislature, which grants them specific powers and responsibilities. These bodies usually operate within a defined legal framework that outlines their structure, functions, and authority. High commissions, however, are neither statutory bodies/authorities nor constitutional bodies. They are important diplomatic missions established by the sending government and operate under the general 23 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 principles of international law and diplomacy. The term "High Commission" refers specifically to diplomatic missions between Commonwealth countries, and such missions facilitate diplomatic relations, promote political, economic, and cultural ties, and provide consular services to citizens. They are also instrumental in recognizing other Commonwealth countries and their governments. High Commissions follow diplomatic protocols specific to the Commonwealth framework and operate within the defined boundaries of bilateral diplomatic relations with the host country. In the present case, the learned counsel for the applicant has not made out any case to establish that the "High Commission" or other "Diplomatic Missions" are "State" within the meaning of Article 12 of the Constitution of India, so as to render them amenable to the jurisdiction of this Tribunal for the issuance of a writ of mandamus or for invoking powers exercisable under the Administrative Tribunals Act.
6.10.6 We would also refer to the decision rendered in Chief Engineer, Hydel Project & Ors Vs Ravinder Nath & 24 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 Ors (AIR 2008 SUPREME COURT 1315) decided on 24.01.2008 wherein it was held as under:
"15. In the present case while the employers-appellants claimed that the termination simpliciter was effected in the light of the Rules under the Certified Standing Orders, the plaintiffs-respondents alleged that the principles under the provisions of the Certified Standing Orders were completely ignored and a highly arbitrary, discriminatory approach was adopted by the employer by picking and choosing the plaintiffs for the purposes of termination. The dispute, therefore, clearly fell outside the civil courts jurisdiction as per the decisions of this Court relied upon earlier.
16. However, the question is that this issue of jurisdiction was not raised either before the before the First Appellate Court or the Second Appellate Court. Learned counsel for the respondents very vociferously argued before us that for the reasons best known to the appellants, this objection regarding the jurisdiction was never raised specifically. We have seen the written statement. In the written statement the defendants- appellants have raised a plea though not specifically but there is a clear reference to Rule 20(1) read with Rule 3-A of the Certified Standing Orders for the work- charged staff on the Project. It is stated, which is apparent from the judgment of the trial court that since the services of plaintiffs have already been terminated on payment of necessary gratuity etc., they have no cause of action and that the present suit is not maintainable in the present form and is also not competent without notice under Section 80 CPC besides being barred by limitation. The tenability of the suit was, therefore, raised and vide Issue No.3, the trial court also considered the tenability of the suit in the present form. The trial court has not, however, adverted to the jurisdiction aspect as is being presently highlighted before us. Same is the story about the First Appellate Court and the Second Appellate Court. However, it is not as if this issue was not raised altogether. Atleast a notice of this issue was given to the respondents in SLP (C) 11086 of 1992 which was filed on behalf of the appellants to challenge the dismissal of the said application by the High Court. It is very specifically raised therein in Ground No.8, which is reproduced as under:25
(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 "Because the civil court had no jurisdiction to entertain the suit. The relief of reinstatement in the present case was available only under the Industrial Disputes Act and therefore the jurisdiction of the Civil Court was expressly barred. [(1991) 1 RSJ 770]. The declaration claimed by the plaintiffs in his suit could be granted by the Labour Court under the Industrial Disputes Act and consequential relief was also exclusively outside the jurisdiction of the civil court. The plaintiff respondents are basing their case mainly on the provision of Industrial Disputes Act, 1947 and thus the claim of the plaintiffs/respondents could only be adjudicated by the Labour Court. The proposition of law is now well settled by repeated pronouncement made by the Apex Court.Therefore, it is not that the respondents herein had no notice of such an objection. This Court only directed the High Court to dispose of the appeal before it expeditiously. However, it does not seem that the question was raised by the counsel of the appellants before the High Court in the present form. On the other hand the High Court has very specifically held that there was no substantial question of law involved in the matter."
17. In our considered opinion, it cannot be said that there was no question of law involved as we have pointed out that the issues squarely fell in the area covered by the Industrial Disputes Act and was, therefore, specifically barred. The question is whether this issue regarding the jurisdiction could be allowed to be raised before us. The question of jurisdiction came up before this Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. & Anr. [(2005) 7 SCC 791]. The Court therein was considering the question raised whether the court had jurisdiction under Section 16(d) CPC to deal with the matter in question. In short the court was considering whether the amendment could have been allowed raising objection to the territorial jurisdiction. This Court in para 30 observed as under:
"We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) 26 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject- matter. So far as territorial and pecuniary jurisdiction are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject- matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity. The Court then proceeded to rely on the case in Bahrein Petroleum Co. Ltd. v. P.J. Pappu [(1966) 1 SCR 461:AIR1966 SC 634] and observed in para 32 that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. The Court further observed that It is well settled and needs no authority that where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing. A decree passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice. The Court also relied upon the decision in Kiran Singh v. Chaman Pawan [(1955) 1 SCR 117: AIR 1954 SC 340] and quoted therefrom:
It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdictionstrikes at the very authority of the court 27 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 to pass any decree, and such a defect cannot be cured even by consent of parties. Though in the aforementioned decision these observations were made since the defendants before raising the objection to the territorial jurisdiction had admitted that the court had the jurisdiction, the force of this decision cannot be ignored and it has to be held that such a decree would continue to be a nullity."
18. The aforementioned decision was followed again in Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. [(2007) 2 SCC 355] where one of us, Sinha, J. was a party. Ofcourse while following this decision the Court referred to the decisions in Chief Justice of A.P. v. L.V.A. Dixitulu [(1979 2 SCC 34]; Zila Sahakari Kendrya Bank Maryadit v. Shahjadi Begum [(2006) 11 SCC 692] as also Shahabad Cooperative Sugar Mills Ltd. v. Special Secretary to Govt. of Haryana [(2006) 12 SCC 404]. CONCLUSION
19. Once the original decree itself has been held to be without jurisdiction and hit by the doctrine of coram non judice, there would be no question of upholding the same merely on the ground that the objection to the jurisdiction was not taken at the initial, First Appellate or the Second Appellate stage. It must, therefore, be held that the civil court in this case had no jurisdiction to deal with the suit and resultantly the judgments of the Trial Court, First Appellate Court and the Second Appellate Court are liable to be set aside for that reason alone and the appeal is liable to be allowed. In view of this verdict of ours, we have deliberately not chosen to go into the other contentions raised on merits. We, however, make it clear that we have not, in any manner, commented upon the rights of the plaintiffs- respondents, if any, arising out of the Labour Jurisprudence.
20. In the result the appeal is allowed but without any order as to costs."
6.10.7 We also observe that the Consul General where the applicant(s) have been working has not been notified under the provisions of the Administrative Tribunal Act, which is 28 (C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018 otherwise regrettable if we were to assume our jurisdiction in light of Section 28 of the Administrative Tribunals Act, 1985. This, however, is a consequence of the limited remedies that the legislature has conferred on employees complaining of termination. In such cases, employees are left to their common law rights or laborlaw for wrongful termination, which are enforceable in appropriate proceedings. More importantly, the applicants were appointed under a contract of employment that cannot be regarded as a civil post carrying a pay scale. The rigors of the wording used in Article 311 of the Constitution of India cannot be applied, even though it is contended that in such a case of dismissal, removal, or reduction in rank of persons, the doctrines of reasonable opportunity and natural justice have not been followed. The applicants have never been employed in a civil capacity under the Union or a State so as to sufficiently invoke the jurisdiction of this Tribunal. We may say that the applicants are not without remedy; they are not precluded from invoking the jurisdiction under the provisions of the Industrial Disputes Act, 1947.
29(C-5, item -49) O.A. No. 2190/2016 with O.A. No. 3469/2018
7. CONCLUSION :
7.1. In view of the above observations, the present Original Applications against the "High Commission"/"Diplomatic Missions," filed by the applicants, who were employed under a contract, fall outside the jurisdiction of this Tribunal. Therefore, we dismiss both Original Applications.
7.2. Pending M.A.s, if any, shall stand disposed of. No costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/as/