Delhi High Court
Union Of India vs Syed Ashraf Hasnain Rizvi on 11 July, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
$~35.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of order: 11th July, 2011
+ LETTERS PATENT APPEAL NO. 489/2010
UNION OF INDIA ..... Appellant
Through Mr. Akshay Chandra, Advocate
for Mr. Neeraj Chaudhari,CGSC for UOI.
versus
SYED ASHRAF HASNAIN RIZVI ..... Respondent
Through Mr. S.N. Mehrotra, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported in the Digest ? Yes.
DIPAK MISRA, CJ.:
In this intra-Court appeal preferred under Clause X of the
Letters Patent, the legal pregnability of the order dated 5th April,
2010 passed by the learned single Judge in Writ Petition (Civil)
No. 3625/2008 is called in question.
2. The facts which are essential to be adumbrated for
adjudication of this appeal are that the respondent was
employed in the Science and Education Section of the Embassy
of Islamic Republic of Iran. He worked in the embassy from 1st
October, 1989 till 14th May, 2002, when his services were
LPA No. 489/2010 Page 1
terminated by the said embassy.
3. After the order of termination came to be passed, he filed
an application under Section 86(1) of the Code of Civil
Procedure, 1908 (for short, „CPC‟) before the Ministry of
External Affairs (MoEA) for grant of consent to sue the
competent authority of the embassy. The competent authority of
MoEA, by communication dated 23rd January, 2004, had granted
permission under Section 86(1) for initiation of the legal
proceedings. The said communication is as follows:
"Now, therefore, government of India, the
Ministry of External Affairs, hereby accord
and certify their consent under Section 86
Code of Civil Procedure, 1908 for institution
of legal suit against the Embassy of the
Islamic Republic of Iran, New Delhi in a court
of competent jurisdiction for getting the
retirement benefits."
4. On the basis of the aforesaid consent, the respondent
instituted Civil Suit No. 59/2004 in the trial court against the
embassy, the third respondent herein. In the suit the respondent
had prayed for recovery of retiral dues, retirement benefits and
compensation for belated payment. The learned Additional
District Judge decreed the suit for a sum of Rs.7,89,600/- with
10% per year increase on the wages drawn from the last seven
years with proportionate cost and pendente lite and future
LPA No. 489/2010 Page 2
interest @ 9% till the date of payment along with the cost of the
suit.
5. After the decree was passed by the learned trial Judge,
the respondent sought consent from the MoEA as required
under Section 86(3) of the CPC for execution of the decree but
the said consent was not accorded to vide communication dated
4th April, 2008.
6. Being dissatisfied with the aforesaid refusal, the
respondent invoked the inherent jurisdiction of this Court under
Article 226 of the Constitution of India for issue of a writ of
certiorari for quashment of the order dated 4th April, 2008 and
also for issue of a mandamus to command the respondent No. 1
to grant permission to proceed with the execution.
7. The learned single Judge referred to the material brought
on record, scanned the anatomy of Section 86 of the CPC and
referred to the decision in Harbhajan Singh Dhalla versus
Union of India, AIR 1987 SC 9 and came to hold that denial of
permission under Section 86(3) of the CPC to execute the
decree was not justified and accordingly directed the
respondent-Union of India to issue a letter/sanction as
envisaged under Section 86(3) of CPC.
8. Questioning the legal propriety of the aforesaid order, Mr.
LPA No. 489/2010 Page 3
Akshay Chandra, learned counsel for the appellant has raised
the following contentions:
(a) The order passed by the learned single Judge is
absolutely flawed inasmuch as he has not appositely
appreciated the partial consent granted by the MoEA
under Section 86(1) and further reliance placed on the
decision in Harbhajan Singh Dhalla (supra) is
inappropriate.
(b) The order passed by the learned single Judge is faulted as
he had misconstrued the consent was only to sue for
retiral dues and that would not include a prayer for grant of
compensation.
(c) Assuming the determination by the learned single Judge in
respect of the aforesaid aspects is correct, yet it was
incumbent on the part of the learned single Judge to remit
the matter to the Central Government to reconsider the
matter in accordance with law.
9. Mr. S.N. Mehrotra, learned counsel appearing for the
respondent in appugnation of aforesaid submissions, has
canvassed as follows:
(i) The order passed by the learned single Judge that the
respondent was entitled to institute a suit for grant of
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retiral benefits including compensation is impeccable and
hence, does not warrant interference in exercise of the
intra-Court appellate jurisdiction.
(ii) The consent granted by the MoEA under Section 86(1)
cannot be narrowly construed to affect the rights of the
respondent to institute a suit and the decree passed by
the court should not be allowed to be nullified in an
arbitrary manner by the competent authority.
(iii) The learned single Judge is absolutely correct in issuing a
writ of mandamus when he has conclusively held that the
consent sought was in accordance with law and no further
exercise is required to be carried out by the respondent.
(iv) The refusal of permission by the Union of India to execute
the decree cannot be held to be defensible as it is not
covered by the United Nations Convention on
Jurisdictional Immunities of States and their Property
2004, which reflects the international practice as to the
immunity from the jurisdiction of local courts.
10. To appreciate the aforesaid submission raised at the bar, it
is apt to refer to Section 86 of the CPC, which reads as follows:
LPA No. 489/2010 Page 5
"86. Suits against foreign Rulers,
Ambassadors and Envoys.- (1) No [* * * *]
foreign State may be sued in any Court
otherwise competent to try the suit except
with consent of the Central Government
certified in writing by a Secretary to that
Government:
Provided that a person may, as a
tenant of immovable property, sue without
such consent as aforesaid [a foreign State]
from whom he holds or claims to hold the
property.
(2) Such consent may be given with respect
to a specified suit or to several specified
suits or with respect to all suits of any
specified class or classes, and may specify,
in the case of any suit or class of suits, the
Court in which [the foreign State] may be
sued, but it shall not be given, unless it
appears to the Central Government that [the
foreign State].
(a) has instituted a suit in the Court against
the person desiring to sue [it], or
(b) by [itself] or another, trades within the
local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property
situate within those limits and is to be sued
with reference to such property or for money
charged thereon, or
(d) has expressly or impliedly waived the
privilege accorded to [it] by this section.
[(3) Except with the consent of the Central
Government, certified in writing by a
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Secretary to that government, no decree
shall be executed against the property of any
foreign State.]
(4) The proceeding provisions of this section
shall apply in relation to -
[(a) any Ruler of a foreign State;]
[(aa)] any ambassador or Envoy of a foreign
State ;
(b) any High Commissioner of a
Commonwealth country; and
(c) any such member of the staff [of the
foreign State or the staff or retinue of the
Ambassador] or Envoy of a foreign State or
of the High Commissioner of a
Commonwealth country as the Central
Government may, by general or special
order, specify in this behalf.
[as they apply in relation to a foreign State].
[(5) the following persons shall not be
arrested under this Code, namely : -
(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign
State;
(c) any High Commissioner of a
Commonwealth country;
(d) any such member of the staff of the
foreign State or the staff or retinue of the
Ruler, Ambassador or Envoy of a foreign
State or of the High Commissioner of a
Commonwealth country, as the Central
Government may, by general or special
order, specify in this behalf.
LPA No. 489/2010 Page 7
(6) Where a request is made to the Central
Government for the grant of any consent
referred to in sub-section (1), the Central
Government shall, before refusing to accede
to the request in whole or in part, give to the
person making the request a reasonable
opportunity of being heard.]"
11. On an x-ray of the aforesaid provisions, it is luculent that
before a suit is instituted, consent of the Central Government
certified in writing by the Secretary is imperative. The
respondent had sought permission by letter dated 20th April,
2003 on following terms:
"It is, therefore, once again prayed that
Ministry of External Affairs, Government of
India be pleased to take appropriate action
against the Embassy of the Islamic Republic
of Iran and direct them to settle the matter
amicably with me, which I am very keen to
do. However, should the Embassy be
unwilling to do so within a period of 15 days,
I earnestly pray to the Ministry of External
Affairs to grant me consent under Section 86
of the Code of Civil Procedure, 1908 to
move the competent court for redressal of
my grievances and recovery of the
compensation and other amounts due to me
on account of the illegal termination of my
service."
12. The learned single Judge has opined that the application
made by the writ petitioner and the communication dated 23rd
January, 2004 are to be read in a conjoint and harmonious
LPA No. 489/2010 Page 8
manner. On a reading of the communication pertaining to
consent, we do not see any stipulation to grant permission to file
a suit in a limited manner. What is stipulated in the letter of
consent is to institute a suit in a court of competent jurisdiction
for getting the retirement benefits. The concept of retirement
benefits cannot be restricted to a narrow compartment of what
was exactly payable as retiral dues. If there has been belated
payment or an intentional non-payment, the consequential
reliefs can be sought. True it is, in the case at hand the
respondent filed a suit challenging the illegal termination.
Rightly or wrongly the learned trial court had treated the
termination to be illegal and granted compensation. We may
hasten to clarify that we are not on the validity of the decree as
that is not the lis before us. In the case of Harbhajan Singh
Dhalla (supra), a two-Judge Bench of the Apex Court
emphasized on the role of the Central Government. In
paragraph 22 of the said decision their Lordships referred to the
decision in Maharaj Kumar Tokendra Bir Singh versus
Secretary, to the Government of India, Ministry of Home
Affairs, AIR 1964 SC 1663 and stated thus:
"22. ......The Court noted that the power
conferred on the Central Government to
refuse to accord consent to the proposed
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suit shall be carefully exercised. These
principles would be applicable to the facts of
this case. It is true that these provisions
both of Ss. 86 and 87 are intended to save
the foreign States from harassment which
would be caused by the institution of a suit
but except in cases where the claim appears
to be frivolous patently, the Central
Government should normally accord consent
or give sanction against foreign States
unless there are cogent political and other
reasons. Normally, however, it is not the
function of the Central Government to
attempt to adjudicate upon the merits of the
case intended to be made by the litigants in
their proposed suits. It is the function of the
courts of competent jurisdiction and the
Central Government cannot under section
86 of the Code usurp that function. The
power given to the Central Government must
be exercised in accordance with the
principles of natural justice and in
consonance with the principle that reasons
must appear from the order. We may note
that in the counter-affidavit we do not find
any such cogent reasons or due
consideration."
(Emphasis supplied)
13. In this context, we may profitably reproduce a passage
from Mirza Ali Akbar Kashani versus United Arab Republic,
AIR 1966 SC 230:
" The limitation of the liability of foreign
States to be sued is two-fold. The first
limitation is that such a suit cannot be
instituted except with the consent of the
Central Government certified in writing by a
Secretary to that Government. This
requirement shows the anxiety of the
Legislature to save foreign States from
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frivolous or unjustified claims. The second
limitation is that the Central Government
shall not give consent unless it appears to
the Central Government that the case falls
under one or the other of Cls. (a) to (d) of S.
86(2). In other words, the Legislature has
given sufficient guidance to the Central
Government to enable the said Government
to decide the question as to when consent
should be given to a suit being filed against
the Ruler of a foreign State."
14. A three-Judge Bench in Shanti Prasad Agarwalla and
Others versus Union of India and Others, AIR 1991 SC 814
referred to the decision in Mirza Ali Akbar Kashani (supra) and
opined as follows:
"5. ...The Central Government while
considering the application under S. 86 of
the Code must decide the application in
accordance with the provisions of the section
itself and state clearly and intelligible its
reasons for rejecting the application..."
15. In view of the aforesaid, we are of the considered opinion
that the purpose of the provision is to do justice between the
parties following the principles of natural justice. When the
respondent had sought permission to sue for his grievances on
account of illegal termination and the permission had been
granted for restitution of a legal suit for getting the retirement
benefits, the illegal termination was required to be questioned. If
the termination is not held to be illegal, the question of retiral
LPA No. 489/2010 Page 11
benefit would not arise. As an ancillary relief, the prayer for
compensation for termination was made. The said prayer is
inextricably connected with the consent accorded. In view of the
aforesaid, the denial of permission under Section 86(3) is
untenable.
16. At this juncture, we may refer to Article 11 of the United
Nations Convention, 2004, which is as follows:
"1. Unless otherwise agreed between the
States concerned, a State cannot invoke
immunity from jurisdiction before a court of
another State which is otherwise competent
in a proceeding which relates to a contract of
employment between the State and an
individual for work performed or to be
performed, in whole or in part, in the territory
of that other State.
2. Paragraph 1 does not apply if:
a. The employee has been recruited to
perform particular functions in the exercise
of government authority;
b. the employee is:
(i) a diplomatic agent, as defined in the
Vienna Convention on Diplomatic Relations
of 1961;
(ii) a consular officer, as defined in the
Vienna Convention on Consular Relations of
1963;
(iii) A member of the diplomatic staff of
a permanent mission to an international
organization or of a special mission, or is
recruited to represent a State at an
international conference or
(iii) any other person enjoying diplomatic
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immunity;
c. the subject matter of the proceeding is
the recruitment, renewal or reinstatement of
an individual;
d. the subject matter of the proceeding is the
dismissal or termination of employment of an
individual........."
17. Article 11(b) enables the aggrieved person to challenge
his dismissal or termination after obtaining permission and
paragraph 1 of the Article 11 does not apply. There is no
prohibition that an additional prayer for compensation cannot be
added to the issue of illegal termination. The permission sought
and the sanction accorded would clearly make out that there
was no denial in that regard.
18. The other issue that emerges for consideration is whether
the learned Single Judge is justified in issuing a mandamus in
the manner he has done. Learned counsel for the appellant has
commended us to the decision in Union of India and Another
versus Bilash Chand Jain and Another, (2009) 16 SCC 601,
wherein their Lordships have opined thus:
"A perusal of the judgment of the learned
single Judge shows that the learned Single
Judge has, while allowing the writ petition,
directed the Ministry of External Affairs, Union
of India to give consent under Section 86(3)
CPC for executing the decree. That judgment
has been upheld by the Division Bench of the
High Court. We are of the considered opinion
that even if the High Court was of the view
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that the order of the Central Government
dated 23-3-1992 refusing to give consent to
execute the decree was arbitrary or illegal, at
most what the High Court could have done
was that it could have remanded the matter to
the Ministry f External Affairs, Union of India to
reconsider the matter in accordance with law
instead of itself directing the Central
Government to give consent under Section
86(3) CPC."
19. In view of the aforesaid pronouncement of law, the issue
of writ of mandamus by the learned single Judge commanding
the competent authority to accord permission is not justified.
The matter should have been remitted to the Central
Government to reconsider the matter. Therefore, we remit the
matter to the Union of India to reconsider the matter in
accordance with law after following the principles of natural
justice. We may note with profit that the embassy has already
paid Rs.84,000/- to the respondent. We have noted so as the
learned counsel for the respondent has apprised us that the
embassy was going to pay the entire amount but did not pay as
there was interdiction by the appellant.
20. Resultantly, the appeal is allowed in part and the direction
issued by the learned single Judge to pass an order of consent
is set aside and the matter is remitted to the Union of India to
reconsider the same. The Union of India shall take appropriate
LPA No. 489/2010 Page 14
decision within a period of three months from today. There shall
be no order as to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
JULY 11, 2011 VKR LPA No. 489/2010 Page 15